This is a petitory action wherein the plaintiff, L. T. Humphreys, seeks to recover a half interest in the NW1/4 of the SE1/4 of Section 7, T. 20 N., R. 12 W., Bossier Parish, Louisiana, acquired by him from Gertrude Fields Payne, divorced wife of Isiah Payne, and now in the possession of the defendant, Joe Webb Royal, under a deed executed by Payne subsequent to the divorce.
The record shows that Isiah Payne was married to Gertrude Fields in the County of Leflore, Mississippi, on October 15, 1911, and that he moved to Louisiana after his return from World War I, probably in 1919, when he and his wife separated. On October 8, 1936, he purchased, by authentic act, duly recorded, and for a consideration of $600, $140 of which was paid in cash and a mortgage given for the remaining $460, the land involved in this controversy. In this act is contained the stipulation that the Federal Land Bank of New Orleans is conveying all of its rights in and to the property unto "Isiah Payne, a single man, resident of Caddo Parish, State of Louisiana." (Italics ours). The *Page 570 defendant, Joe Webb Royal, having been informed by Mr. H. M. Gatti, agent of the Federal Land Bank of New Orleans that the bank had no property for sale but that he might take over the Payne property by assuming the unpaid mortgage and thereby avoid the expenses incidental to foreclosure proceedings since the bank was compelled to institute such proceedings because of Payne's failure to meet his obligations, acquired the property from Payne on November 10, 1941, by authentic act for the assumption of the mortgage and a cash consideration of $30. In this deed Payne declared that he was a single man. In the meanwhile, during 1938, Payne had instituted suit for divorce against his absentee wife and had, on December 2, 1938, obtained a judgment of divorce, which judgment, however, was never recorded in the Conveyance Office of Bossier Parish. Soon after the development of the Benton Oil Field, in which area this property lies, the plaintiff, obviously with a knowledge of all of the facts, sought out Gertrude Fields Payne at her residence in Mississippi, and, on April 26, 1946, purchased from her an undivided half interest in and to the property hereinabove described. Within the month he instituted this suit seeking to be recognized as the owner of this half interest. The defendant, relying on the law of registry, denied the plaintiff's ownership, pleading, in the alternative, that in the event the court finds the plaintiff does own such an interest, that he be given *Page 571 judgment in reconvention in the sum of $630.35, representing half of the expenses incurred by him in repairing and improving the property and in making scheduled payments to the Federal Land Bank and in paying taxes thereon.
There was judgment in the lower court recognizing the plaintiff to be the owner of an undivided half interest in this property, and awarding the defendant, as the plaintiff in reconvention, the sum of $224.28, but non-suiting his reconventional demand for the value of the improvements placed on the property; reserving to him, however, the right to urge his claim to half of the enhanced value thereof because of such improvements. From this judgment the defendant has appealed. Answering the appeal, the plaintiff asks that all of the demands of the defendant under his reconventional demand be rejected.
Under our Civil law system, the property above described, acquired by Payne during the existence of his marriage to Gertrude Fields Payne, belongs to the community of acquets and gains that existed between them at the time it was acquired, of which community Payne was the head and master and, as such, vested with the exclusive right to sell or otherwise alienate and encumber it. Articles 2399, 2402, and 2404 of the Revised Civil Code. This right, however, terminated upon the dissolution of the marriage when Payne divorced his wife and she was, *Page 572 thereafter, vested with an unrestricted title to an undivided half interest in the property. Article 2406. The only question that is to be determined, therefore, is whether the wife or her transferee here can prevail in this case in view of the public policy of this state that in order to affect third parties all sales of, transactions, or judgments touching upon or affecting real rights or immovable property must be recorded.
This public policy is based upon the pronouncements to be found in our Revised Civil Code of 1870 providing that "No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder, or register of conveyances of the parish where such immovable property is situated." Article 2264. The same rule applies to all sales made by sheriffs or other officers by virtue of any execution or other order of court, to all marriage contracts and all final judgments affecting real property. Articles 2265 and 2266. In the latter article it is declared that contracts, sales, and judgments not so recorded are "utterly null and void, except between the partiesthereto," and, as was very aptly pointed out in the case of Schneidau v. New Orleans Land Co., 132 La. 264, 61 So. 225,230, the lawmakers thus provided "a method intended to be simple, sure, and inflexible, whereby those who desire to invest their money in real *Page 573 estate may be able to find, upon the public records, the evidence, and all the evidence, needed to establish or defend the title thereto." (Italics ours.)
These articles are clear and free from any ambiguity and are subject to no exceptions other than that they do not apply "between the parties thereto." It therefore follows that the unrecorded divorce judgment affecting the immovable property in controversy is utterly null and void as to the defendant here, a third party.
We do not think the decision of this court in the case of Succession of James, 147 La. 944, 86 So. 403, is controlling here, as contended by the plaintiff. In that case the court, after the death of the wife, denied a creditor's right to enforce a mortgage against the community to the prejudice of the husband's interest therein on a debt that had been contracted by the wife in her own name as a femme sole during the existence of the marriage in the husband's absence and without his knowledge. Consequently Articles 2265 and 2266 had no application. No judgment had been obtained in that case, as in the case at bar, affecting the immovable property.
For the reasons assigned the judgment appealed from is annulled and set aside and it is now ordered that the plaintiff's suit be dismissed, at his cost.
PONDER, J., absent. *Page 574
HAWTHORNE, J., dissents and assigns written reasons.