Sutton v. SuttonSutton v. Sutton
Plaintiff appeals from the trial court‘s refusal to cancel defendant‘s judicial mortgage as against property рlaintiff bought at a public partition sale conducted without notice to defendant. We affirm.
The sale was conducted to partition the former marital community оf plaintiff and his ex-wife. Plaintiff ex-husband had granted a recorded conventional mortgage upon the specific community property during the marriage. The ex-wife, by bеing cast in judgment for her separate debt, allowed a judicial mortgage (
La. Acts 1896, No. 86 amended
“That in all judicial partitions, where a partition is made by licitation, the mortgages, liens and privileges existing against any one or more of the co-proprietors, shall be by order of Court transferred to the proceeds of sale in the hands of the Notary, and the rights of all creditors shall be reserved on the said proceeds of sale to be urged by them, either before the notary or before the court, as may be necessary, provided the holders of such mortgages, liens and privileges be made pаrties to such judicial partition.”
Because the defendant mortgagee was not made a party to the judicial partition, there is no authority for the transferring of dеfendant‘s judicial mortgage claim to the proceeds and the mortgage therefore remains effective against the ex-wife‘s undivided half of the property. Mоrtgage is a real right, following the immovables subjected to it “into whatever hands they pass,”
Plaintiff‘s argument that the property‘s market value was less than the earlier-recorded conventional mortgage, and that therefore defendant has suffered no real loss, is in principle rejected by Quality Fin. Co. of Donaldsonville, Inc. v. Bourque, La.1975, 315 So.2d 656. Inferior mortgages cаnnot be extinguished except as provided by law. The law provides for extinguishment by partition sale only if the mortgagee was made a party to the partition.
Affirmed.
MORIAL, J., dissenting with written reasons.
MORIAL, Judge (dissenting).
Plaintiff оbtained a divorce on July 18, 1973. Subsequently, he petitioned for a partition by licitation of the community property. On the mortgage certificate obtained by the Civil Sheriff fоr the Parish of Orleans two inscriptions appeared: (1) Mortgage in favor of Collateral Investment Co. in the amount of $15,000.00 plus interest, etc., dated November 16, 1967; and (2) Judgment against Jeannette Laphand Sutton in favor of Bank of Louisiana in New Orleans in the sum of $1,316.97 plus interest, etc., Civil District Court No. 548-420 dated March 28, 1973. It is conceded that this judicial mortgage resulted from the separate indebtedness of the former wife. No holder of any mortgage, lien, or privilege was made a party to the partition proceedings. At the licitation sale which complied with all the requisites of law the property was adjudicated to plaintiff for $6,500.00. Plaintiff retained in his hands the amount of the purchаse price and paid the Sheriff the costs of the sale.
Plaintiff petitioned for a writ of mandamus to have the Recorder of Mortgages for the Parish of Orleans cancel the judicial mortgage in favor of the Bank of Louisiana in New Orleans insofar as it applies to the immovable property he acquired at the Sheriff‘s sаle. Bank of Louisiana in New Orleans was served and appeared.
Plaintiff is not a seizing creditor and, therefore, Creech v. Capitol Mack, Inc., 287 So.2d 497 (La. 1974) is inapplicable. He has an absolute right to sue for a partition by licitation of the property which he held as co-owner with his former wife.
It must now be determined whether the judicial mortgage in favor of the Bank of Louisiana in New Orleans, insofar as it applies to the immovable property, was cancelеd as a result of the partition sale. The answer to this question is found in the various decisions which are predicated on R.C.C. Articles
The principle that in a partition by liсitation “the mortgages attach to the share of the proceeds coming to the co-proprietor liable for the same” was recognized in Beltran v. Gauthreaux, supra, which affirmed those principles predicated on R.C.C. Articles
“That in all judicial partitions, where a partition is made by licitation, the mortgages, liens and privileges existing against anyone or more of the co-proprietors shall be by order of Court transferred to the proceeds of sale in the hands of the Notary, and the rights of all creditors shall be reserved on the said proceeds of sale to be urged by them, either befоre the Notary or before the court, as may be necessary, provided the holders of such mortgages, liens and privileges be made parties to such judicial partition.”
In Succession of Williams, 138 La. 383, 70 So. 334, 336 (1915) the Court in commenting on the language added to
“It will be observed that the paragraph does not require that the holders of liens, mortgages, and privileges against the shares of particular co-owners shall be made parties to the partition proceeding, but contemplates that, if they are made parties, their liens, etc., `shall be, by order of the court, trаnsferred to the proceeds,\’ etc.”
Therefore, the earlier rule predicated upon the interpretations of R.C.C. Articles
The judicial mortgage of the Bank of Louisiana in New Orleans was transferred to the shares of its judgment debtor in the proceeds of the partition sale. That plaintiff did not seek to have the judicial mortgage transferred to the proceeds to which it could attach is true. Apparently, that is because there are no proceeds to which it could attach. Since there are no proceeds, the plaintiff is entitled to receive thе property purchased by him free from the encumbrance. See Beltran v. Gauthreaux, supra; Succession of Williams, supra; Schoeffner v. Schoeffner, supra.
Under the circumstances, to permit a judicial partition to be declared a nullity would, in effеct, paralyze the right of a co-owner to terminate the indivision of property guaranteed by
For the foregoing reasons, I respectfully dissent.