28 La. Ann. 661 | La. | 1876
This is an hypothecary action to enforce payment of a mortgage note executed by J. B. A. Fontenot for a portion of the price of thé property a part of which is now in the possession of the defendants, Dominique Lalanne and Etienne Forest. Etienne Forest filed for answer a general denial, and called Theodule Fontenot and the estate of Barlow in warranty, to defend this suit.
The answer of Lalanne is a general denial and a call in warranty of his vendor, David Morgan, and of John Beid and Theodule Fontenot, Morgan’s vendors. The demand for a money judgment against the war-rantors was reserved.
Benjamin Woodworth and wife, representing David Morgan’s estate, Theodule Fontenot, John Beed, and Elisha Andrus, administrator of the estate of John S. Barlow, deceased, answered the case in warranty and denied all the allegations of the plaintiff’s petition. Subsequently, the prescription of' five and ten years against the plaintiff’s demands was pleaded.
The lower court sustained this plea and dismissed the suit.
On the twentieth of February, 1857, Jean B. Fontenot sold to John S. Barlow the property covered by the mortgage in question. This act was not recorded till the thirteenth of September, 1858.
McDaniel was a witness to the act of mortgage, and, therefore, a party to the act. O. 0. 3342, 3343, and 3344. And registry was not necessary to bind him.
But the defendants say that the exception to the rule that registry is necessary to affect third parties, created by article 3344 0. 0., can not be ■extended. We do not believe that article 3344 creates any exception. Article 3342 declares: “ But these mortgages áre only allowed to prejudice third persons when they have been publicly inscribed on records kept for that purpose, and in the manner hereinafter directed.” Article ■3343 defines who the third persons referred to in article’ 3342 are, and article 3344 declares: “ Consequently, neither the contracting parties, nor their heirs, nor those who were witnesses to the act by which the mortgage was stipulated, can take advantage of the non-inscription of the mortgage.”
They are affected by the mortgage, notwithstanding its non-inscription, not because of their knowledge of its existence, as assumed by defendants, but because they are not third parties. And the transferees of McDaniel, in examining the chain of title to him, must have seen that he was a witness to the act of mortgage, which was duly recorded when •they acquired title from him, and all persons are presumed to know .-the law.
Another question to be decided is, can a third possessor of mortgaged ¡property plead prescription against the note, although a judgment has /been rendered on the note against the debtor ?
We are unable to perceive why he should not be allowed to plead pre.•scription in such a case. He was no party to the suit, and his rights were not affected by the judgment. If the note were prescribed when ■the suit against the debtor was instituted, the mortgage was dead, for the accessory obligation perished with the prescription of the principal •.obligation, and it was not in the power of the debtor, or of ’the court, to revive the mortgage affecting property in the hands of third persons. Besides, the textual provisions of the court declare that: “ Creditors .-and all other persons who may have an interest in the acquiring of an estate, or the extinguishment of an obligation by prescription, shall have .a right to plead it, even in case the person claiming such estate, or bound
The case in 13 An. 205, cited, is not in point, and what was said on this subject in the case in 2 An. p. 367, King vs. Hickey, is not approved. See 8 An. 504; 16 An. 345; O. C. 3466.
The note was due bn the first of January, 1859, and the suit was instituted on the tenth of December, 1866; It was prescribed, unless the current of prescription had been interrupted. This the plaintiff offered to prove, but he was not allowed to do so. The plaintiff offered to prove by parol that payments had been made on the note by the administrator of the deceased debtor, which was objected to on the ground that it was inadmissible to prove an interruption of prescription of a debt of a dead person by parol.
The court a qua erred.
The acts interrupting prescription, which plaintiff offered to prove, were not done by the deceased debtor, but by his administrator after his death, and the rule of law invoked was inapplicable. R. S., section 1442.
It is therefore ordered that the judgment of the lower court be reversed, and that the case be remanded to be proceeded with according to the views herein expressed, and that appellees pay costs of suit.
