2 La. Ann. 800 | La. | 1847
The judgment of the court was pronounced by
The plaintiffs mortgaged to the Exchange Bank a tract of land and several slaves, to secure the re-payment of a bond given by tnem for a loan of 352,800. Subsequently they sold the land to Brazeale Sp Sewell for 352,000, by a public act passed before the parish judge, in whose office it was duly recorded in the book of alienations. The purchasers assured the payment of the mortgage to the bank, and received from the plaintiffs 35800, the difference between the price of the land and the mortgage assumed. On the day following the sale Brazeale Sp Sewell disposed of the land to Lenoir, by an act of exchange. Brazeale 8p Sewell having failed to make the stipulated payment for the land, the bank obtained an order of seizure and sale, in virtue of which all the mortgaged property was seized. Pending the seizure the plaintiffs paid 35500 to the' attorney of the bank, which sum was credited on the writ. An additional sum was paid by Brazeale Sp Sewell, and, some time after. Brazeale acquired the bond at a sale of the bank’s assets. Upon the exhibition of this bond to the recorder of mortgages, the mortgage was erased. The defendant, being a judgment creditor of Lenoir, issued a fieri facias, in virtue of which the land in question was seized. The plaintiffs thereupon instituted this proceeding, which is a third opposition, claiming the vendor’s privilege upon the land for the $500 paid by them towards the extinction of the mortgage debt due to the bank. Their claim was rejected in the court below, and they have appealed.
It is contended that the sum advanced by the Perots is a part of the price of the land, which remains still unpaid to the vendor. If this be conceded, the privilege of the plaintiffs can only take effect to the prejudice of third persons from the date of its due registry in the mortgage office. It is urged that the inscription of the act of sale from which the privilege results on the notarial records of the parish judge, before whom the act was passed, was a sufficient registry to preserve and give effect to the privilege. The decisions to which we are referred in support of this position were reviewed in the matter of Falconer’s Succession, 4 Rob. 5, and shown to have been made under the operation of laws which required no separate books to be kept by parish judges for the inscription of mortgages. Subsequent legislation directed a separate book to be kept for the inscription of mortgages, and only gave effect to such encumbrances, to the prejudice of third persons, from the date of their inscrip, tion on the records kept for that purpose. C. C. 3351, 3353, 3238. It appears, in the present instance, that books, distinct from the notarial records, were kept, in which mortgages were inscribed; and in those the act, from which the alleged privilege results, was not inscribed. It has not, therefore, received the publicity which the law imperatively requires, to give it effect against third persons. It is not material to enquire whether the inscription in the book of alienations of the parish judge’s office would have been a sufficient registry, if that officer, in violation of his duty, had kept no separate book for the inscription of acts importing mortgages or privileges. Separate books wore kept, and tne inscription of the privilege in them was indispensable to preserve and give it effect. The object of the inscription is to give publicity to the encumbrances with which