Pedesclaux v. Legaré

The opinion of the court was delivered by

Spencer, J.

On the 23d May, 1868, plaintiff obtained' a judgment against her husband for $9050, with legal mortgage, etc., also dissolving-the community, and restoring to her the administration of her separate estate. This judgment was advertised, but no execution was ever issued thereon, or other steps taken to satisfy it.

On 3d April, 1869, her husband, Landry, bought from Mrs. Walker, by public act passed in New Orleans, a sugar plantation situated in Ascension parish, for $40,000, of which $10,248 36 was paid in cash, and for the balance the vendee assumed a "pre-existing mortgage on the property, and gave notes at one and two years. The vendor reserved special mortgage and vendor’s lien on the property to secure the credit part of the price. This act of sale and mortgage was recorded simultaneously in the conveyance and mortgage books of Ascension, on the 14th April,. 1869.

Landry having failed to pay the price, the vendor’s mortgage and-privilege were foreclosed by Dr. J. C. Legaré, the holder of the notes,, and the property was adjudicated to him in August, 1871, at less than-the debt due. In August, 1876, Dr. Legaré sold the plantation to the-*384•defendant. About a year later (in 1877), the plaintiff commenced the present suit, which is an hypothecary action to subject said plantation •to her legal mortgage.

The plaintiff’s theory is, that the law in force in April, 1869, required, In order to preserve the vendor’s lien, that the act of sale and mortgage •should be recorded in the mortgage office “on the day of the passage of the act.” And strangely enough, counsel for defendant has discussed this •case at great length, upon that hypothesis.

When counsel agree as to what the facts of a ease are, we feel •obliged to accept their conclusions ; but not so as to the law. We take •the law from the Co dp, and not from the counsel. The Eevised Civil Code of 1870 was adopted only on the 14th March of that year. The ■provisions of that Code, therefore, are inapplicable to this case, and we must look elsewhere for the law governing it.

Art. 3240 of the Code of 1825 provides that the vendor’s privilege ■on immovables is “ valid against third persons from the date of the act, if It has been duly recorded, that is to say, within six days of the date, if the act has been passed in the place where the registry of mortgages is Jcept, or adding one day more for every two leagues from the place where •the act was passed to that where the register’s office is kept.”

This article was amended and re-enacted in 1868 (see Act No. 126, •approved September 29th), so as to read as follows : “ The privileges ■enumerated in the two preceding articles'” (i. e. those of the vendor and of architects, etc.,) “ are valid against third persons from the date of the ■■ recording the act or evidence of indebtedness, as provided in the foregoing articles.” The “ foregoing articles'” referred to simply require these privileges to be recorded in the mortgage registry of the parish where the property is situated. They fix no time within which the recording is to be done, under pain of forfeiture of privilege, as did the original •art. 3240, and as did art. 3274 of the Code of 1870, which has been amended by act of 1877.

There was not therefore in existence on the 3d April, 1869, any law ■fixing a delay within which registry must be made in order to preserve the existence of the vendor’s lien. On the contrary, the act of 1868, above quoted, provided that that privilege should be valid against third persons from the day it was recorded. There was no law forfeiting the privilege. There was no law which authorized a court to say that where an act was passed on the third and recorded on the fourteenth, the privilege was not preserved. The plaintiff’s claim is by no means • an equitable one, in that it is an effort to appropriate to herself property which her husband bought and never paid for; and that to •the prejudice of the vendor, who had not only a legal but moral right • of revendication for this failure to ,pay. We are not disposed in *385•the interest of such a demand to extend forfeitures of just rights by 'implication. Nothing short of a positive enactment would justify our holding plaintiff’s claims to be superior to those of the vendor.

We have said that as between a mortgage and a privilege the question of priority of registry could not arise ; that if the privilege existed at all it of necessity primes all mortgages as being higher in its nature. Jacob vs. Preston, 31 An. 518.

The vendor’s privilege in the case before us did exist and was preserved by the registry on the 14th April. No law declared its forfeiture for failure to register on the 3d April, 1869.

If we applied the rule of the original article 3240 of the Code of 1825, the registry on 14th April was seasonable, for it is more than ten leagues from New Orleans, where the act was passed, to the parish seat of Ascension, where the property was situated.

We hold, therefore, that the vendor’s lien was in full force in 1871, and that the sale thereunder passed the property to the purchaser free of plaintiff’s alleged mortgage.

This view dispenses us from considering the many intricate questions raised and discussed by counsel.

The j udgment appealed from is affirmed with costs.

Rehearing refused.