12 La. Ann. 216 | La. | 1857
The Bank of Louisiana obtained a judgment against Henry Elowen', which was duly recorded in the mortgage office on the 9th of June, 1831. It was reinscribed in August, 1840, and again reinscribed on the 10th of February, 1854. An interval of more than ten years elapsed between the first and second reinscription. Flower died previous to the year 1840.
It is contended on behalf of the appellant, that this judicial mortgage is in full force. First, because no reinscription is necessary; and, second, that if necessary the-'rei-nscription in 1854 had- the effect to revive the mortgage as against the other creditors.
We cannot give our assent to either of those propositions. It is unnecessary to discuss the policy of the law, at least for the purpose of interpretation, when its provisions are absolute.
Prescription runs against a vacant estate even though no curator may have been appointed. O! O. 3492. Prescription runs against all persons unless they are included in some exception established by law. C. O. 3487. An inscription of a mortgage which is not renewed until after an interval of ten years, ceases to have effect against any third person having an adverse interest. A subsequent reinscription could give it effect only from the date of such reinscription. 2 An. 100.
It is urged that the rights of all mortgage creditors are fixed by the death of an insolvent debtor ; that all judicial proceedings being stayed by the death of the debtor, proscription ceases to run against mortgage creditors, and their rights -remain unalterably fixed until the estate is disposed of according to law.
On the second point, the provisions of the Code are clear and explicit. “ If a succession which is administered by a curator or beneficiary heir is not sufficient to satisfy the creditors, an inscription made by one of them after it is opened, shall have no effect against the others.” O. O. 3327. The opponent’s right as a mortgage creditor having been lost by a failure to reinscribe within ten years, could not be reinstated by an untimely reinscription. No new ■right could be created by such a proceeding. The statutory provision of the Code quoted above, must, in our opinion, control the rights of parties in this case ; and however strong the analogy between the administration of an insolvent succession, and that of property surrendered by an insolvent debtor, we are not at liberty to overlook the absolute provisions of the Code for the purpose of preserving a supposed uniformity in such cases.
Prescription against the creditors of an insolvent is suspended by a surrender of property. The property ceded is supposed to be given in pledge by the debtor to his creditors, and while that pledge continues, it is considered a standing acknowledgment of the debt. Whether this theory is well founded or not, as respects an insolvent debtor, it evidently can have no application to successions whether solvent or insolvent.
We think the judgment should be affirmed.
Judgment affirmed.
