| La. | Feb 15, 1848
The judgment of the court was pronounced by
The question presented by the facts of this case’ relates to the legal effect of a deed of trust, executed in the State of Mississippi, and recorded in the parish of Carroll, where the land in controversy is situated. The date of the deed is the 10th of February, 1838, and of the record the 27th of March following. It appears by the certificate of the parish judge, to have been recorded in the book 'of deeds so called. The deed of trust purported to convey to the trustee this tract of land, with a large quantity of land and negroes in the State of Mississippi, in order to secure the payment of a large debt due by the grantor to a third person, Thacker W. Winter, of Mississippi; and on default made by the debtor, in conformity with the conditions of the deed of trust, the trustee sold this land at public auction in the town of Vicksburg, and the plaintiff, Ricks, became the purchaser. The de’ed to him bears date the 21st of December, 1840, and was recorded in the parish of Carroll, on the 2d May, 1842. After executing this deed of trust, Gibson, the grantor, sells the same land before a notary public in the parish of Madison, on the 13th November, 1839, to the late James F. Stewart. The act was recorded in Carroll two days afterwards. The purchaser under the deed of trust is the plaintiff, and the curator of the succession of Steivart is defendant, both claiming the title to the land; the former had judgment, and the defendant has appealed.
The validity of the sale to Stewart is said to have been impossible by reason of the deed of trust, which had been previously executed by the owner of the land, and the subsequent bond fide purchase under it by the plaintiff is said to create a complete adverse title in him, superior to that acquired by Stewart. The parties were all citizens of Mississippi, and the contract and its obligations have been considered in argument with reference to the laws of that State ; and its effect and validity under our own laws has also been carefully examined by counsel.
In the State of Mississippi a court of equity would hold the deed under consideration to bo a mere mortgage, with a power of foreclosure out of court. It must be conceded that the effect of this deed must be determined under the laws of Louisiana (Civil Code, art. 10); and the counsel for the plaintiff has. contended'that there is nothing in the instrument which conflicts with them, that the power to sell given to tlio trustee is valid as an ordinary mandate, and
If the deed of trust be considered as an ordinary mandate it must be taken as revoked by the sale to Stewart, and the record of that sale was notice of the fact. But we cannot assent to the proposition of the learned counsel that an agreement by which a mortgagee is authorized to sell mortgaged property extra-judicially, is valid under our laws. Whatever may be the validity of such an agreement between the parties, so far as the rights of third persons are concerned, we think it would be without effect. It is true, as stated by the counsel for the plaintiff, that under the roman law a power to the mortgagee to sell without judicial authority would have been valid, and a sale after public advertisements and notice to the debtor made Under the forms required, would have given a good title to a bona fide purchaser. Droit Romain, par Mackeldey, § 317. But with our hypothecary system the validity of such a power would be incompatible. Troplong has given his views on this subject with reference to the Code Napoleon, and has given what may be considered a history of the question as it has been settled in the jurisprudence of France. They are equally applicable to the Louisiana Code, and we consider them conclusive. Troplong, Traite des Priviléges et Hypothéques (art. 2169), no. 795.
The judgment appealed from is therefore reversed, and judgment is rendered in favor of the defendant; and it is decreed that the land in controversy belong to and make part of the succession of James F. Stewart, and be inventoried; and that the plaintiff pay the costs in both courts.