Cain v. Bouligny

7 La. 159

• Court: Supreme Court of Louisiana
• Decided: March 15, 1844
• Status: Published

Opinion

Simon, J.

This is an appeal from a judgment ordering a mandamus to be issued, commanding the Recorder of Mortgages of the parish of Jefferson to erase from the records of his office the bond of the appellee, as Marshal of the City Court of Lafayette, which the Recorder certifies as creating a general mortgage.

The law by virtue of which the City Court of Lafayette was established, was passed on the 2d of April, 1835. Bullard & Curry’s Digest, 229. It is true that by the 6th section of this law, the Marshal to be appointed is to give a bond in the manner prescribed for sheriffs, conditioned for the faithful and honest discharge of the duties of his office, which bond is to be filed with the clerk of the court; and that by the 10th section, the bond so given by the Marshal may be cancelled in the manner provided by law for cancelling sheriffs’ bonds.

But, the Civil Code, art. 3280, declares, that there shall be no legal mortgages but those which arerecognized by that Code ; and among the laws passed subsequently, there is but one which establishes a legal mortgage on the estates of sheriffs, for the purpose of securing the due performance of their duties, and the due payment of all sums for which they may be liable as collectors of taxes. B. &. C.’s Digest, 729, § 126. This law is not applicable to marshals, and we must, therefore, conclude, that the recording of the appellee’s bond cannot have the effect of a general mortgage on his property ; and that the inscription was properly ordered to be erased. 8 Mart. N. S. 244, 316. 2 La. 48.

Judgment affirmed.

*

A mistake into which the court fell, in preparing the opinion in this case, as to the laws creating mortgages on the estates of sheriffs, having been subsequently corrected by Simon, X, the opinion is published as corrected. — Repórter.