| La. | Apr 15, 1849
The ¡of -the court (King, J. absent,) was pronounced by
This is a sequel to tho case of Monget, tutor, v. Walker, lately .determined, ante p. 244.
The plaintiffs, being in .possession .of a town lot acquired from Walker, while ho was tutor, the defendant proceeded against them by the hypothecary action, after the judgment obtained in the former suit had become executory. The plaintiffs enjoined tho proceeding!?. George A. Pike, who owns a portion of the lot, thou intervened, and the proceeding was changed by the pleadings from the via executivei to the vid .ordinaria. The judgment of tho District Court recognized the mortgage, and ordered .that, in default of payment of .the sum duo the minors by the plaintiffs in injunction, tho portion of the Jot claimed be sold to satisfy it. J't further ordered Jhat a separate appraisement be made before the sale of the land, and of the improvements thereon not subject to the mortgage. From this judgment the plaintiffs have appealed.
Many of .the points made by tho plaintiffs having been determined in tho case of Monget, tutor, v. Walker, it is only necessary to notice the following: 1st,, That the minors’ mortgage, jiot having been recorded, .did not affect the land seized at the time it was purchased by tho plaintiffs in injunction. 2d. That this Jot originally belonged to P. A. Walker and Alexander II. Jonas, and has be7 .come the property of tho plaintiffs in injunction under a regular chain of conveyances; that, in tho sale of the eastern half of the lot aüd improvements by WaL ker, Aims, and Frederick Kent, who were then the owners of it, to Rees Fitzpatrick, Walker, as tutor of the minors, sued upon two of the notes given by Fitzpatrick for the price, and obtained a judgment, in his capacity as tutor, with special mortgage on the property; that tho said property was subsequently sold jat sheriff’s sale, on tho 4th of November, 1843, and purchased by D. D. Avery., who paid the purchase money; that Avery afterwards sold to William S. Pika for $600, $200 cash, and the residue in two notes of $200 each, and that the present tutor has received payment of the said two notes.
It is contended that the judgment and judicial sale in the suit of Walker, tuJor, against Fitzpatrick, and thp receipt by the present tutor of the $40# from Pike, had the effect of annulling the original tacit mortgage existing in favor of ¡tiie minors, from tho timo of Walker’s purchase in 1838.
1. A mortgage exists without being recorded, in favor of minors on the property of their tutor. C. C. 3298. This positive disposition of law is an exception to .the rule laid down in art. 3314, that mortgages shall only be allowed to prejudice third persons when they have boon properly recorded. Roche’s Heirs v. Grosillière, 13 La. 246. Lessassier v. Dashiel, 14 La. 468. 17 La. 194" court="La." date_filed="1841-01-15" href="https://app.midpage.ai/document/lesassier-v-dashiell-7160548?utm_source=webapp" opinion_id="7160548">17 La. 194. Cleveland, tutrix, v. Sprowl, 12 Rob. 174.
2. The second ground is one of much greater difficulty. If tho notes on which tlie suit was brought had previously been .lawfully transferred to the minors, we would have no hesitation in saying that the defendants would be protected by tho judgment and judicial sale, and that the properly woold hav.o passed to them freo from tho legal mortgage; but it is admitted that, at the timo of tho rendition and .execution of the judgment, the notes belonged in reality to Walker, and the prpbarrassiijg question is thus presented, whether the misrepresentations of the
That honest purchasers without notice, who have paid the purchase money; are not affected by secret equities existing between those under whom they holds or by their misrepresentations and frauds, is a fundamental rule of our system of jurisprudence, and we believe of every other. Against a party thus situated, courts of Equity, where die common law -prevails, never .give a remedy. “Courts of Equity will not take the least step imaginable against an innocen^ purchaser in such a predicament, and will, on the other hand, allow him to take every advantage which the law gives him, for there is nothing which can attach itself upon his conscience, in such a ca?e, in favor of an p_dverse claim.” Story’s Equity Jurisprudence, no. 1503.
If the present case should form an exception to that rule, the exception must rest upon the law made for the protection of minors. After an anxious and mature consideration of those laws, the conclusion is forced upon us that they have exclusive reference to contracts and rights of property. No peculiar formality is prescribed in relation to actions instituted by tutors for ,tfre recovery of money. The tutor administers by himself alone, and his capacity to appear in court, in such cases, is unqualified and absolute. Civil Code, 344. Third per? sons acquiring in good faith rights under the judgment which ho obtains, have nothing to look to beyond the judgments themselves and the proceedings under them.
If jthe paiijors are injured by the false representations of the tutor, their remedy is against him and the surety on the bond which he has given for his administration. Wo are of opinion that the judgment should have been in fiwor of the plaintiffs in injunction.
It Í3, therefore, ordered that, the judgment in this case be reversed, and that there be judgment in favor of the plaintiffs in injunction, and against the defendant, with eosts in both courts.