I concur in the opinion read by Mr. Justice Rost, and adopt the reasons which he has assigned.
Slidell, J.If this were a contest between ordinary persons, I should have no hesitation in concluding that the mortgages to secure the bonds given to Seghers would have been gone as to third persons, for want of reinscription. The policy of the law, requiring inscriptions to be renewed every ten years, and dispensing the public from searching beyond that time, would be defeated by a contrary construction.
I cannot concur in the argument that, the recorder may adopt his own mode of keeping his books; and that, if parties want information, they ought to get his certificate, which he, understanding his own books, will so make as to include all' outstanding mortgages. One is not bound to get the recorder’s certificate; but *476has a right to go and inspect the books himself. Civil Code, 3363. Act of 1826, p. 62. In making that inspection, the law does not require him to search back more than ten years. 1 do not wish to be understood as saying that, a mortgage fully inscribed in the book for the year 1840, although the actual date of its inscription was in the year 1841, would be ineffectual ah initio, against other mortgagees. Perhaps the inscription, being formal in other respects, would protect the party until the year 1850 ; but when the mortgage book of 1840, became superannuated by the lapse of ten years, a party searching is not bound to look }n that book, so for as ordinary mortgage creditors are concerned. It was expressly said in Shepherd’s case that, the object of reinscription is to dispense from searching more than ten years back.
If, as was said in the case of Shepherd, a reinscription made in January, 1846, in the book of that year was void, because it does not in itself contain a description of the mortgaged property, but merely a reference to the description in aD antecedent inscription, in January, 1836, a fortiori, a defective reinscription in 'file book of 1835, upon'the margin of an act inscribed in 1835, must be held of no effect in 1848.
The next enquiry is, whether the Citizens’ Bank, the subrogee of the mortgage given by the Improvement Bank, stands, quoad that mortgage, on the same footing as an ordinary person. In consideration of the interest of the State in the so called property banks, the legislature thought proper to engraft upon the general law, an exception in their favor, by the act of 1842, entitled an act to amend art. 3333 of the Civil Code. By this statute it was enacted that, the article be so amended that, the rule requiring the re-inscription of mortgages at the expiraration of ten years from the date of their registry, shall not apply to the mortgages which have been, or may be, given by the Stockholders of the various properly banks of this State. It is perfectly obvious that, this act does not cover a mortgage given by the Improvement Bank to Seghers.
Is the case aided by the act of 1843, entitled an act to amend article 3333 of the Civil Code 1 By this statute, authority is given to the recorder of mortgages to cancel inscriptions that have existed for ten years, without a renewal of such inscription ; provided, however, that this section shall not apply to mortgages against husbands, for the dotal and other claims of their wives, to mortgages against tutors and curators, in favour of minors, interdicted, or absent persons, nor to such mortgages in favour of the property Banks—niaux hypotheques consentios en favour des Banques hypothéeaires.
How, here, the dispensation of a general duty, imposed upon eveiy body, and from which the property banks had, under the preexisting law, been exempted, in the sole case of mortgages given to them by their stockholders, is inferred by way of a negative pregnant. Even admitting that the grant of dispensation may be so inferred, it seems to me that such an inference, establishing an exemption in derogation of common right, should be restricted to the express class of mortgages designated in this proviso-—that is to say, mortgages in favour of the property banks—hypotheques consenties en faveur des Banques hypotMcaries.— The utmost latitude, which, on sound principles of construction, would seem admissible in favor of the property banks, would be to consider this inferential legislation as covering all mortgages given by any mortgagor directly to them; especially when we remember that the act of 1842, which, it is reasonable to presume, was in the contemplation of the legislators of 1843, gave the properly banks a dispensation in a much more limited class of cases, to wit, mortgages given to them by stock-holders.
*477However, it is not now necessary to give an unqualified opinion upon the extent of the exemption, as regards the origin or nature of the morgage. Am other view seems to me conclusive of this case.
If the exemption from reinscription is to be extended, under the act of 1843, to mortgages not given to the property banks originally, but held by them as subrogees, it is, at any rate clear that, the subrogation should be duly inscribed. The public should be duly informed, that the mortgage has passed into the hands of a favored class of creditors, exempted from the necessity of reinscription. This certainly was not done by inscribing in the book of 1835, in the margin of the original mortgage, a mere memorandum, defective in itself, that Seghers had transferred the mortgages of 1835 and 1836 to the Citizen’s Bank. Nor can I perceive how the fact of the subrogation being made by a notarial act, relieved the Citizens’ Bank from the necessity of recording the subrogation in the mortgage office.
I therefore dissent from the decree rendered in this cause.
Eustis, C. J.My opinion is that, the act of 1843 does not apply to the case of a mortgage like that under consideration; and, consequently, I concur in the view taken by Mr. Justice Slidell, and dissent from the opinion of the other judges.
Rost, J.The court being equally divided, on the opposition of J. Corning Co. to the mortgage claim of the Citizens’ Bank, on the ground of want of reinscription of the mortgages, it is ordered that, the judgment of the District Court on that opposition stand affirmed. It is ordered that the judgment on the other oppositions be amended, so as to allow interest at the rate of twelve per cent per annum on the circulation, from the day of the demand of payment, instead of allowing it from the suspension of specie payments. It is ordered that the judgment, as amended, be affirmed, and that the account of distribution be rendered in conformity with the foregoing opinion. It is is further ordered that one-half of the costs of the court below be paid by the Improvement Bank, and that the remainder of those costs, and those of this appeal, be paid by the other appellants.