Cumming v. Biossatt

2 La. Ann. 794

• Court: Supreme Court of Louisiana
• Decided: September 15, 1847
• Status: Published

Opinion

The-judgment of the- court was pronounced by

Rost, J.

This is a third opposition,, in which three several mortgage creditors claim to-receive, by preference, the proceeds of the judicial sale of » slave..

In¡1835, Lewis Hoffman and Bis wife, believing themselves to be domiciliated in the parish; of Rapides, paying taxes and exercising their civil'and political rights in said parish, executed in favor of the Canal and Banking Company, apon- their homestead and a slave, a mortgage, which was duly recorded in the parish of their-supposed domicil. The priority of this mortgage in the parish of Rapides is admitted. In 1838, Biossalt obtained against Hoffman a judgment, which was also recorded in the parish of Rapides.. In 1841, Hoffman gave,upon the same slave, a mortgage, which was at first recorded in the parish of Rapides, and afterwards transferred to the present plaintiff, who, in 1842, had it recorded in the-parishof Catahoula, where Hoffman had previously gone to reside. The slave was seized under the judgment of Biossatt, and the plaintiff, as well as the Canal Bank, claim-from the sheriff the proceeds of the sale. The court below ordered the plaintiff to be paid by preference, and the other parlies appealed.

The plaintiff asks the affirmance of the judgment on two grounds: 1st. That Hoffman never had his domicil in the parish of Rapides, and that the recording of mortgages in that parish against him, on the slave in controversy,, could not affect the right of third persons. 2d. That his mortgage was the only one recorded in the parish of Catahoula, where Hoffman resided, and had his domicil, in 1842.

It is in evidence that the boundary line between the parishes of Rapides and Avoyelles, was run and marked by a surveyor after the removal of Hoffman to Catahoula, and that his house was found to be within the limits of (he parish of Avoyelles. The jurisdiction previously exercised over it by the parish of Rapides was tho result of a common error, which, under the maxim of the law, “ I’errear commune fait le droit,” cannot prejudice tho rights acquired by mortgage creditors during its continuance.

The other ground involves a question of registry, which was.newwhen raised in this suit. It has since been settled by two decisions of the Supreme Court, in which we concur. Hoopeŕ v. Union Bank of Louisiana, 10 Rob. page 63. The New Orleans Improvement and Banking Company v. Jewell, 11 Rob. page 20.

The reinscription in the parish of Catahoula was not necessary to preserve mortgages inscribed in the parish of Rapides, where Hoffman had his domicil, de facto, .when the .right of mortgage accrued.

It is therefore ordered,that the judgment in this .case -be reversed, ¡and that that the Canal and Banking Company be paid by preference out of the proceeds .of the sale of the slave York, after deducting costs, the sum of §375, with,interest at the rate.of eight per cent per annum from the 20th May, 1843, until paid, and §4 for costs of protest. It is further ordered that if any surplus remain, it be paid over .to the seizing creditor, Biossatt, up to the amount of his judgment, interest and costs. It is further ordered that if any balance remain after those two claims are satisfied, it be paid o,v.er to tho plaintiff; and that the .said plaintiff pay the costs in both courts.