I concur in what my associate has said and in the decree affirming the judgment appealed from, but I desire to place of record the reasons which impelled me to concur in the decree originally rendered and also additional reasons which now prompt me to reverse my views and to concur in the now prevailing opinion and decree.
I did not agree with the author of the opinion in his view that the words "usual security clauses" were insufficiently broad to include the pact de non alienando, the waiver of appraisement, and the confession of judgment, but I felt that there was no authority in the laws of Louisiana for the subordination of the recorded tacit mortgage in favor of minors to a conventional mortgage granted by a tutor or a tutrix on his or her property.
I believe that the words "usual security clauses" are sufficiently clear and sufficiently broad to authorize the mortgage in the form in which it was executed, particularly since the former act of mortgage, which was being substituted and which contained clauses identical with those which were embodied in the act involved here, might have been resorted to for explanation of the meaning of the term "usual security clauses," if explanation was necessary and if that term could be said to be ambiguous.
Furthermore, if there be any doubt as to whether the clauses which are contained in the mortgage act are "usual security clauses," we could have remanded the matter for administration of proof as to just what are such "usual clauses."
In Boudreaux v. Lower Terrebonne Ref. Mfg. Co., 127 La. 98,53 So. 456, which, in many respects, present facts remarkably similar to those found here, the Supreme Court, in effect, said that, if the meaning of such a term is not clear, explanation may be given. There a tutrix was authorized to mortgage property which was already burdened with a tacit mortgage in favor of the minors. It was directed that the mortgage should be executed "with the usual conservatory clauses."
That a court may take judicial notice of the usual clauses inserted in such a mortgage, I entertain no doubt. In Thompson v. Gosserand, 131 La. 1056, 60 So. 682, 685, the Supreme Court said, "the court will take notice of prevailing customs."
The prevailing custom which was taken notice of in that case was a custom in the cotton business. If we can take judicial notice of the customs in the cotton business, surely we can take judicial notice of customs prevailing in notarial acts.
My concurrence in the decree which rejected the application for the cancellation of the inscription of the tacit mortgage was based on the view that the subordination of a minor's tacit mortgage is tantamount to an erasure thereof, and that consequently it could be effected only by the granting of a special mortgage on the other property of the natural tutor or tutrix, as is provided by article 325, Civil Code, or by the giving of bond, which is now permitted by Act No. 223 of 1920, as amended by Act No. 68 of 1924, and by Act No. 283 of 1926.
There is no doubt of the right to mortgage the minor's half of property for necessities, but there is a clear distinction between that and releasing or subordinating a tacit mortgage in favor of minors and bearing upon the undivided half of the property which belongs to a tutor or tutrix.
That a release of the tacit mortgage in order to permit the sale of the property even for extreme necessities of the minors is not permissible was held several times, notably in Lyman v. Stroudbach, 47 La. Ann. 71, 16 So. 662, and in Barton v. Hickson,134 La. 278, 63 So. 902. In the former the natural tutrix, in her petition for authority to sell the property, had declared: "That the minors are in necessitous circumstances; that the property owned by them does not produce a revenue sufficient for their support and maintenance, nor to pay city and state taxes on the immovable property; that it is to the interest of the said minors, of absolute necessity, and to their evident advantage, that all, or a portion at least, of the immovable property owned *Page 408 by them should be sold according to law, to procure means for their support and maintenance, and to prevent the sale of said immovable property for taxes, which is threatened by the state tax collector of the upper district of this parish."
The adjudicatee at the sale refused to take title, contending that, although the title to the undivided portion belonging to the minors was perfectly good, there was no way, except by the granting of a special mortgage, in which the tacit mortgage could be released. The court said: "The plaintiff, Lyman, brings this suit to compel the defendant to accept title, who declined to complete his purchase, on the ground that the title to the property is not good; that the minors' mortgage on the same has not been legally canceled, and still exists."
In holding that the adjudicatee could not be compelled to take title, the court used the following language:
"The mortgage of the minors unquestionably rests upon the undivided half of the community sold by the tutrix.
"The mortgage of the minors necessarily must remain in force on all the immovable property of the tutor, as a security for his administration from the day of his appointment until the final settlement of the tutorship. This is no longer a debatable question. See Schneider v. Burns, 45 La. Ann. 875, 13 So. 175, and authorities cited."
In Barton v. Hickson, supra, the Supreme Court held that the tacit mortgage could not be released in any such manner. The opinion is very short, and reads as follows: "Plaintiff is tutrix of her children, and brings this suit to compel defendant to accept title to a certain piece of real estate which he has agreed to buy from her. A family meeting was duly held and duly homologated, recommending that this property be sold free of the legal mortgage of the minors upon it, and that the purchase price be deposited in the registry of the court, there to remain until reinvested under the orders of the court. Defendant contends that notwithstanding said family meeting proceedings said property would pass to him, subject to said mortgage, if he accepted title. In that connection he is entirely correct. Life Association v. Hall, 33 La. Ann. 49; Lyman v. Stroudbach, 47 La. Ann. 71, 16 So. 662; Succession of Keppel, 113 La. 246,36 So. 955; also Succession of Wegmann, 110 La. 930, 34 So. 878, and cases cited in these cases. The cases of Koehl v. Solari, 47 La. Ann. 890, 17 So. 464, Succession of Viard, 106 La. 73,30 So. 246, Succession of Richardson v. Richardson's Heirs, 52 La. Ann. 1402, 27 So. 890, and Succession of Allen, 48 La. Ann. 1240, 20 So. 683, cited by plaintiff, are not in point. The sales there involved were for the purpose of effecting a partition."
It appeared to me, when we first considered the matter, that those cases were controlling here.
Now, however, actuated by the fact that if Gumpert, whose assistance has during the past eight or nine years maintained the minors in the property, will sustain a heavy loss as a result of his benefaction, and by the further fact that the denial of his prayer for the erasure of the inscription will produce a most inequitable result, I have made further search and have finally found a case in which that which was done here was approved by the Supreme Court. That case is Beauregard v. Leveau, 30 La. Ann. 302. I cannot distinguish it from this case. There money had been loaned on a mortgage on property owned jointly by a minor and her natural tutrix. The mortgage, after proper formalities, had been made superior to the tacit mortgage of the minor on the portion of the property which belonged to the tutrix.
When the mortgagee attempted to foreclose on the note, he was met with the defense, among others, that no such subordination could be made in this state. The court held otherwise.
The following statement shows how the conventional mortgage had come into existence and how it had been given priority over the tacit mortgage: "In February 1873 Madame Marie Beauregard, the widow of Paul Beauregard and mother of plaintiff, presented her petition to the Second Court of this City, alleging that she was under the necessity of borrowing about two thousand dollars to pay the taxes upon her property to defray the cost of urgent repairs of it, and to pay the expenses of educating and maintaining her only child, but that she could not obtain any loan of money because the only security she had to offer was a mortgage upon her property, and it already stood affected by the general mortgage in favor of her child (the plaintiff) resulting from her tutrixship. She prayed the convocation of a family meeting to advise upon the propriety of granting a priority of mortgage over the child's general mortgage to any one who would lend her the required sum. The meeting was held — the result of the deliberations was that she was authorized to postpone the general mortgage of her child to the special one in contemplation — the advice of the family meeting was approved by the judge and a decree entered accordingly — and the defendant loaned her the money and she executed the mortgage."
In holding that, as the result of that action, the conventional mortgage was properly given priority over the tacit mortgage, the Supreme Court said:
"In Fontenette v. Veazey, 1 La. Ann. 236, where the mother and natural tutrix convoked a family meeting for the same purpose as in this case, viz., to postpone the minors' mortgage, to enable her to borrow money to repair her dwelling which was falling into *Page 409 decay and ruin, it was objected that the legal mortgage of the minors could only be removed in the mode pointed out by the Act of 1830, the Court say; — The act of 1830 presents no obstacle to the release of the tacit mortgage in favor of minors in cases like the present, nor has it reference to such cases. Among the duties which devolve upon tutors are those of providing for the maintenance, health, and personal safety of their wards, in the execution of which the property of the minor himself may be sold, and if necessary, the capital may be used. In the present instance property subject to the minors' mortgage has been sold for purposes for which their own might have been validly alienated.
"The property of the plaintiff's mother and tutrix in the present case, like that of Fontenette, was in need of repair, and in addition to that need unpaid taxes were hanging over it. The money borrowed was in part wanted for the conservation of the property. Without it, a sale for taxes might have accomplished its alienation, or the further progress of decay would have rendered it uninhabitable, and destroyed or decreased its value by the dilapidation of the houses. Another part of the money borrowed was needed for the education and maintenance of the child whom the mother naturally and laudably desired to fit for the active duties of life. She has received the benefit of the defendant's money and does not propose either to return it to him, or to pay back or allow to her mother that part of it which was expended exclusively for her benefit. In the account filed by the mother there was no mention of these charges, and it was opposed by the daughter, not because it failed to charge her with her education and maintenance, but because the mother had not charged herself with one half of the price received for a slave sold after the father's death.
"The formalities of law were complied with in the proceedings of the family meeting. The relatives and friends of the plaintiff advised the borrowing of the money for needful purposes. There is no pretence that it was applied wrongfully, and it is against law, and yet more against equity and good conscience, that the plaintiff should enjoy the benefits derived from the defendant's loan, and wrest from him the security specially hypothecated to secure its return, without making that return herself."
In Boudreaux v. Lower Terrebonne Ref. Mfg. Co., supra, is found another case involving in part the same legal situation. The court could have decided the matter on the point urged here had it felt that such subordination of the minors' mortgage could not be effected. It did not do so, but, in a lengthy opinion, granted the same relief on entirely different grounds. It appears to me that the court entertained no doubt that such subordination could be properly made.
By these two decisions and also by that rendered in Fontenette et al. v. Veazey, 1 La. Ann. 236, I have been forced to the conclusion that there is a legal distinction between canceling a tacit mortgage and subordinating it to a conventional one, and that, although the cancellation cannot be brought about except by a special mortgage or a bond, the subordination may be effected in the manner followed here.
I therefore feel that the inscription should be canceled, and consequently I concur in the decree. *Page 589