Moore v. Louaillier

2 La. 571 | La. | 1831

Martin, J.

delivered the opinion of the court.

The administrator complains of the judgment of the court of probates sustaining the oppositions of Andrus, and Lou-allier .to the tableau of distribution.

A mortgage cannot be shewn to exist by parol testimony. But the right to a mortgage, resulting from the transfer of a claim, to which a mortgage is attached, may be proved by parol evidence. The law requires a notary to make a memorandum at the foot of a note given for the payment of a sum, secured by a mortgage; but it does not require him to certifv the transfer of such note, or any one which is given in renewal of the original note.

Andrus, endorsee of a note given by the deceased, for the balance due on a former note, given to secure the pricé of a tract of land, complained he was placed on the tableau as a mere chirographery creditor, while he was a privileged and hypothecary creditor on the proceeds of the sale of the land.

Louallier complained that he is placed as assignee of the claim of the price of certain slaves, bought by the deceased ata probate sale, as a chirographery creditor, while he ought to be placed as a privileged or mortgage creditor therefor.

The claim of Andrus was resisted on the ground that as he was the endorsee, given for a balance due on a larger one, for the price of a tract of land, he could not avail himself of the privilege or men gage which attached on the former note.

It is urged the note in the opposing creditor’s possession, is not on its face connected with the act of sale, on which the privilege or mortgage arises, and cannot be shewn to be so, by parole evidence; to permit this being done, would be to give effect to a parole mortgage, contrary to the provisions of the Louisiana Code, art. 3272; and the notary ought to have made a memorandum at the foot of the note. — 2 Mo-reau’s-Dig. 70, § 4.

We think that, although it is certain that a conventional mortgage cannot be the result of a parole agreement, the right to the mortgage resulting from the transfer of the claim to which the mortgage is attached, may be proved by parole testimony.

The law requires the notary to make a memorandui » .d the foot of a note, given for the payment of a sum secured by a mortgage; but it does not require him to certify the transfer of such a note, or any which is given as a renewal of the former. ]

Louaillier’s pretensions were set aside on the ground that his mortgage was not registered in the office of the parish ' judge. The privilege or mortgage results from the pre-ces verbal of the estate of a deceased person, sold by the judge of probates. ' The purchaser and his sureties subscribed that part of the proces verbal of sale, which relates to the slaves bought. This proces verbal is on file, and consequently is a record of the court of probates. The parish judge is ex officio judge of probates and notary public. He is not expected to keep distinct offices, as parish judge, judge of probates, and notary public. Were he to keep distinct offices in such capacities, he would be the keeper of these r 1 several offices, they would be severally his offices. Whether it <32 i • .i t c ti j.f he keep one or more offices, he is the keeper of ail the papers in the one, or all of them. Hence, in the case of Mar-v ’ ’ tel et al. vs. Tureaud’s heirs, (6 Martin, N. S. 121,) we held that any deed passed before a-parish judge, in his notarial capacity, relating to property situated in his parish, does not require any transcription, or further inscription, to give it effect against third parties. Our decision must be the same with regard to an act of sale, received by him as judge of probates.

The proces verbal of sale of an estate,madeby the judge of probates, subscribed by the purchaser and his sureties,which sti-P¿ates or 3ecur<-s a mortgage on the property sold, is cord in the parish deposited P'ji on file >.n thus deemed re-Require? ments of law.

We think the court of probates did not err, in sustaining the opposition of the appellees.

It is therefore ordered, adjudged, and decreed, that the judgment of the court of probates be affirmed, with, costs.