Martin v. Landreaux , 33 La. Ann. 676 ( 1881 )

The opinion of the Court was delivered by

Levy, J.

This action is brought by Mrs. Martin, a married woman, against the heirs of Pierre Landreaux, to recover the sum of $6762 25, the amount alleged to be due her by her husband and which she has lost, owing to the negligence and fault of the said Pierre Landreaux, as Recorder of Mortgages, to register or inscribe in the proper book of mortgages, the marriage contract between herself and husband, John Dawson, and by such negligence and failure other creditors have exhausted the property of her said husband to her prejudice and loss, by reason of the non-recordation of said marriage contract in the book prescribed by law.

The contract was entered into on the 5th of March, 1885, and was recorded on the same day in the Book of Donations, in the office of Recorder of Mortgages for the parish and city of New Orleans. The said Pierre Landreaux (now deceased) was at that time holding the office of Recorder of Mortgages.

It appears that in 1872 certain judgment creditors of the husband, Dawson, seized his property, and plaintiff, who had also sued him, obtained a judgment for $6762 25, with wife’s privilege and mortgage, and seized under execution the same property which had been previously seized by the other judgment creditors. On oppositions the conflict of seizures and privileges was decided against Mrs. Dawson and in favor of the first seizing creditors, who took all the proceeds of the sales, the amount of which exceeded Mrs. Dawson’s judgment. The decision of the Supreme Court, in 26 An. 534, was to the effect that the registry of the marriage contract, made by the Recorder in the donation book, was erroneous and without effect, and did not operate as a mortgage on the husband’s property. In that case the Court held, that the “ wife’s mortgage as to her husband’s property, existed without the registry, but when the system of this class of mortgages was changed, registry became necessary, and some of the modes prescribed for the registry of the various kinds of mortgages, was essential.” It was further held, that the object of Article 1541, Code of 1825, (which was in force when the marriage contract was executed and recorded, viz: in 1835) “was not to give notice of the wife’s mortgage upon her husband’s property for the protection of her dotal or other rights, but to operate as notice of the property donated, its status and the inability of the donor, probably, or his creditors to, in any manner, affect said property. It relates only to the property embraced in the act of donation, its title and character.”

The existence and effect of the wife’s mortgage upon the property of her husband, at the time of the registration of the marriage contract in the Book of Donations, were not dependent upon any registry. Being a constitution of dowry, the inscription in the Book of Donations operated as a notice of the legal mortgage with which it was affected, and, at that time, its registry in the Book of Mortgages would have accomplished, under the law in force, nothing more than was done by its registry as actually made in the Book of Donations. Long before the necessity for recordation in the mortgage book arose, to cause the contract to operate as a mortgage, Pierre Landreaux had ceased to fill the office of recorder. There is no evidence in the record to show any demand upon him to register the instrument otherwise than he had already done; no legal benefit would have accrued to the plaintiff by such registry during his term of office; and if there was loss resulting from any such failure to register, we are at a loss to perceive on what principle, applicable to the state of facts herein, such loss should be borne by the defendants representing Landreaux, the Recorder. It is asking too much to require him to have foreseen future legislation, and he might well ask why the plaintiff herself did not have the registry made prior to the time fixed by the Constitution of 1868, in order to keep alive her privilege and mortgage theretofore accorded by law.

This view of the case disposes of it, and to our minds sustains the judgment rendered in the lower court. -

The judgment appealed from is, therefore, affirmed with costs.