dissenting. The proof in this case is very far from showing, in my opinion, that the plaintiff had knowledge of a sale from Cruse to Moore, prior to the recording of his judgment. He says, he heard that Moore claimed the property, but he did not believe the report. So, too, as to the time ; the property was under seizure for some months, and it might have been long after the mortgage was recorded, that Swan heard the rumor. But as my colleagues have found the facts adversly to the plaintiff on this branch of the case, I advert to it only to show, that I do not think the plaintiff can be charged with a want of good faith in pursuing the remedies which the law has given him. Cruse was the debtor of plaintiff for work and labor, much of which was done and furnished prior to the act of sale from Cruse to Moore. There is, therefore, just as much reason to charge Moore with having bought to defraud creditors, as to charge Swan with an intention of defrauding Moore, and I see no reason to charge either with bad faith. They are innocent persons, each endeavoring to avoid a loss. Swan seeks to render the property which his debtor held, when he furnished him with the work and labor, liable for his debt. Moore seeks to withdraw this property from the creditor to whom the law had given a sort of pledge, by Articles 3149 and 3150 0. 0., and claim it as his own. Moore’s money never went into Swan’s hands, therefore, nothing estops Swan from pursuing his legal remedies and making that property, (on the faith of which the credit may be supposed to have been given,) responsible lor his debt.
In the further consideration of the case, I shall consider as proven, as my colleagues have done, that Swan had heard of Moore’s claim upon the property before he recorded his judgment. That Swan had seen the act of sale, or had any certain information of its contents, I do not hear contended.
It is supposed by a majority'of this court, that the case is controlled by Art. 2242 of the Oivil Code, and some decisions under it. The Article is under the title, Or Acts under private signature. It is in these words :
“ Art. 2242. Sales or exchanges of real property and slaves, by instruments under private signature, are valid against bona fide purchasers and creditors only from the day on which they are registered in the office of a notary, or from the time of the actual delivery of the thing sold or delivered.”
If this Article of the Code was the only law on the subject, as it was considered at the time when the decisions cited were rendered, there would be no reason to depart from them. But as the law itself has been radically changed, and new provisions and requirements added, and as the same court which rendered the decisions relied on, followed the new law, it seems to me no longer an open question. Indeed, I cannot see how the lawgiver can use more positive language in his enactments, or the courts could show a more willing obedience to his requirements.
The law with regard to the parish of Orleans, under the title of Register of Conveyances for the parish of Orleans, declares, sec. 27, that “ Acts, whether *839they aro passed before a notary public or otherwise, shall have no effect against third persons, but from the day of being registered.” Acts of 1855, p. 345.
By another Act, a similar provision is extended to the country.
“ Sec. 14. It shall be the duty of the Recorder to endorse on the back of each act transmitted to him, the time it was received by him, and to record the same without delay, in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish Recorders.”
Then, under the head of registry, the lawgiver says generally :
“ Section 1. That no notarial act concerning immovable property, shall have any effect against third persons, until the same shall have been recorded in the office of the parish Recorder or Register of Conveyance of the parish where such immovable property is situated.”
And in the last paragraph of the second section of the same Act, it is declared, that:
“ All sales, contracts and judgments, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording-may be made at any time, but shall only effect third persons from the time of recording.” Acts of 1855, p. 335.
This is the last expression of the legislative will upon the subject, and it is dear, precise, and contains no exception or qualification.
To me, the argument by which it is sought to be proved, that this last expression of the sovereign will is not obligatory and binding to its full extent, seems liable to many objections.
If I ask, did not the Legislature have the power to pass this law ? The answer from every quarter is, it did have the power. If I ask again, are not the precise, positive, and stringent provisions of this law, the will of the lawgiver ? There can, it seems to me, be but one answer : He would not have taken ihe pains to have expressed his will with such minuteness and enforced it by reiteration in other Acts, unless such had really been his will. As the lawgiver has the power, and such is his will; what is it, but the law ?
But it is said, the repealing clause of these statutes of 1855, does not repeal Article 2242 of the Civil Code. To this I reply, that it is not important to the decision of this case to decide, whether these Acts did or did not repeal the Art. 2242, for they are on a different subject. Art. 2242 relates to the registry of acts under private signature before the notary, doubtless in order to assure their dates.
These statutes are passed in order to give certainty, and publicity and perpetuity, to titles to real estate, and to furnish authentic evidence thereof, and the registry of all ads notarial or under private signature, is to be made before the Register or Recorder, and this difference must have been adjudged to exist, or the Act of 1810 could, not have been held to survive the repealing Act of 1828.
Again, these statutes of 1855, are but a reenactment of the Acts of 1810 and 1827 (well known to the profession). According to the decision in the Holmes and Wiltz’ case, their reenactment cannot be considered as destroying their former effect, and consequently their influence upon the Code.
But the repealing clause cannot bear the construction contended for. It is in these words, viz: “ That all laws contrary to the provisions of this Act, and all laws on the same subject-matter, except what is contained in the Civil Code and Code of Practice, be repealed.”
*840What is the object of a repealing' clause ? Is it not to abrogate all provisions of law inconsistent with the newly declared will of the sovereign power ? Is it to do the strange and inconsistent office of declaring the statute just enacted repealed by a former law ? Are the statutes of 1855 repealed by laws passed in 1825 ?
All subjects are presumed to know the law. Much more, therefore, must the lawgiver be presumed to know what he has previously prescribed as a rule of action, and it must be held, that the Legislature knew the provisions of the Civil Code and Code of Practice, which it had enacted and caused to be promulgated. It did not, therefore, solemnly exert the sovereign power to do an act which it knew would be entirely nugatory, or, in its own language, utterly null and void, because in conflict with other inconsistent provisions of the ancient law which it then and there determined to declare should stand.
The repealing clause is what it purports to be, a repeal. It repeals all laws inconsistent. It goes further, it repeals all laws on the same subject-matter, except what are contained .in the Civil Code and Code of Practice. If the Judge finds anything inconsistent with this new expression of the legislative will anywhere, he must declare it repealed, because lex posterior derogat priori. And he is not to regard anything on the same subject-matter unless he shall find it in the Civil Code and Code of Practice.
Having thus shown, as I think, that the new statutes are in force, or, in other words, not repealed by the ancient laws, I now proceed to show that these statutes, before they were reenacted in 1855, were repeatedly recognized as the law by this court, and carried into effect. It is sufficient for the purposes of this opinion to show that they have been so regarded by this court, and if it has made one exception, it only proves the rule and does not weaken the present case.
The exception admitted by the court is the solitary case, where the conduct of a subsequent vendee, who has recorded his deed before a former vendee, has been fraudulent. Here the courts deprive him of the advantage gained by his fraud, probably on the ground that a party ought not to be permitted to avail himself of a statute made to prevent fraud, in order to commit a fraud. See Splane v. Micheltree, 2 An. 265.
Not long after the Act of 1821 was passed, the same court, which had decided the cases of Martinez v. Layton, 4 N. S. and Planters’ Bank v. Allard, 8 N. S., gave effect to the latter statute, notwithstanding the previous decisions, and held that an attachment by a creditor, defeated a sale which had been made the preceding day by the debtor, to a third person, but not recorded. Williams v. Hagan, 4 L. R. 125. This doctrine was reaffirmed in McManus v. Jewett, 6 La. 541. In the case of Brassac v. Ducros, 6 Rob. 338, it was held, that the sale of property of the community by the husband could not bind the wife who subsequently renounced the community; that she was a third party and stood in the position of a creditor, and could only be bound by the registry of the act executed by her husband. The doctrine of this case was admitted in the case of Stockton v. Briscoe, 1 An. 249.
In the case of Many v. Lampré, 6 Rob. 314, the statute of 1827 was again considered, and enforced against a vendee with a recorded title, his vendor’s deed not having been recorded prior to the judgment. This last case has been overruled by the case of Stockton v. Briscoe, 1 An. 249, so far as it applies to a case where the junior title is recorded, but not as to the necessity of producing a recorded title to some of the vendees.
*841In the case of Crear v. Sowles, it being- a case of seizure under attachment, the court declares, in effect, that no case of notice can be made out against an attaching creditor, equal to registry, and, notwithstanding the notice, they maintained the attachment. 2 An. 598.
In the case of Tulane v. Levinson, the court says :
“It is in evidence that plaintiff’s attorney before the issuing of the fieri facias, under which they became purchasers, was apprised of the existence of the act of sale to Bartlette, and of its being recorded in the mortgage office ; but that on finding no record of it in the office of the parish Judge, he had the lot seized and bought in for his clients, the plaintiffs. As we consider the right of the plaintiffs to have the property sold to satisfy their debt, paramount to that of the defendant, under his unrecorded deed, by virtue of their recorded judgment, we do not know how that right can be impaired by this knowledge on part of the attorney. The theory, that notice is equivalent to registry in relation to conveyances of real property, we do not understand to have been adopted in our jurisprudence. The subject is one of great interest, and by no means free from difficulty.” 2 An. 789 ; 1 An. 80 ; 2 An 316 ; see also 4 Rob. 7 ; 2 Rob. 379 ; and 2 An. 610.
The doctrine of registry was again considered in the case of Poydras v. Laurans, 6 An. 772, and here Chief Justice Eustis, remarking upon the case before him,says :
“ The counsel for the plaintiff has urged to the court the rule which obtains in England and most of the United States, that notice to a party constitutes such an equity as entitles Mm to protection. The statutes of England relating to the registry laws, which apply to certain counties only, as well as those of several of the States, are not similar to ours on the same subject. The decisions under those statutes, as to what will serve the holder of an unregistered deed, forms no part of our jurisprudence. Nor has the doctrine ever been recognized by this court, that possession under an act of sale, not recorded, was sufficient evidence of notice to creditors and subsequent purchasers to defeat the operation of the registry laws. In the case of Toulane v. Levinson, 2 An. 789, we said : ‘ The theory that notice is equivalent to registry, in relation to conveyance of real property, we do not understand to have been adopted in our jurisprudence.’ ” “ The subject,” continues the Chief Justice, “ has been several times under consideration, and the difficulties attending every mode in which laws of that description have been carried into effect, in different countries, have been examined and weighed. The only cases in which there has been any exception to the effect of the registry of conveyances, are those of gross fraud on the part of purchasers.” Splane v. Micheltree, 2 An. 265 ; McGill v. McGill, 4 An. 269.
After these repeated decisions of the court, it would seem needless to quote further authorities.
All I can say is, here are the statutes which are absolute, and thei-e are the decisions recognizing their binding force. 'Why should we not follow them ? See also Bullard & Currys Dig. p. 603, and Armstrong v. White, 10 An. 609.