dissenting. I must content myself with expressing. my dissent, not having strength to develope, at any length, the reasons on which it is founded. My views, generally, in re lation to the late bankrupt law, are expressed at length in the case of Clarke, assignee, v. Rosenda and another, ante, p. 27. This case, it appears to me, presents a dilemma. Either the United States Court, sitting in bankruptcy, has,*or it has not, plenary jurisdiction over the whole subject of mortgages, and has a right-to decide on the rights of mortgagees. If it has, then it follows, that that court may order evidences of mortgages to be erased and may direct the Recorder, as a ministerial officer, to perform *58the act. Upon that supposition, what has a State tribunal to do with the matter ? Since when have the State courts become the auxiliaries of the federal tribunals, and been expected to play so poor a part, as to lend their aid blindly, in registering their decrees and ordering State officers to carry them into effect. I find nothing of this kind in the constitution, or jurisprudence of the United States.
Again : if we are to pronounce ourselves upon the right of second mortgagees, and upon the authority of the Recorder to efface from the record the evidence of their rights, then it must be done with proper parties before us — auditis audiendis. Who are the parties before us ? None other, as I understand it, than the assignee and the Recorder of Mortgages. None of the parties, whose rights are to be affected by this proceeding, are before us ; nor have they had an opportunity to be heard, by forming a contestatio litis. In the case of Gasquet v. Dimitry, we refused to order the Sheriff to erase the mortgage, without hearing the mortgagee. Our venerable senior, who does not sit in this case, delivered the opinion of the court in that, 6 La. 453,
Does the Recorder of Mortgages wish to shelter himself behind the authority of this court, he must bring with him those whose rights are to be affected by the act required to be done by him. Otherwise, it is clear the mortgagees would not be precluded, either by his acts, or even by the judgment of this court. The Recorder of Mortgages does not represent those whose mortgages are inscribed upon his register. If the mortgagees had been made parties in the Parish Court, they might have denied the existence of any judgment in the District Court of the United States against them. They might have shown, that the proceedings on the part of the first mortgagees were illegal and void, and that, consequently, their rights are not to be impaired. In fine, they might have placed their case in such a form before the court, claiming under the act of Congress to have their rights as mortgagees secured and protected, as, in the event of a judgment here, in the highest State court, against them, they might have prosecuted a writ of error to the Supreme Court of the United States. ■ Instead of that, what have we ? An assignee of a bankrupt, who asserts in his favor a judgment of the Bankrupt Court, and a Re*59eorder of Mortgages, who has no more interest in the case than the clerk of this court, and who has not, in relation to mortgagees, any facultas standi in judicio. I cannot consent to aid in such a proceeding, in which, we either merely carry into effect the judgment of a court of the United States, or decide upon important questions without having before us, as parties, those whose interests and rights are to be affected by our judgment.
My opinion, therefore, is, that the judgment of the Parish Court should be reversed.
Judgment affirmed.