Duplessis v. His Creditors

11 Rob. 4

• Court: Supreme Court of Louisiana
• Decided: May 15, 1845
• Status: Published

Opinion

SimoN, J.

The syndic of the insolvent estate of Thomas and James Duplessis is appellant from a judgment discharging a rule by him obtained on Fergus Gardére, a third possessor of certain property formerly belonging to the said insolvent estate, but which was sold at publie auction and adjudicated to W. F. C. Duplessis, to show cause why the said property should not be seized and sold to satisfy a claim of the said syndic, amounting to $1,359 T5, due by the said W. F. C. Duplessis as a contribution to the legal and privileged expenses and charges of the estate, to be paid out of the proceeds of the sale of the property as being subject to a privilege for the payment of the said sum.

It appears from the record that William F. C. Duplessis, who was the holder of notes bearing a first mortgage on certain real property surrendered by the insolvents to their creditors, became the purchaser thereof at the sale made by the syndic. He did not pay the price, but retained it in his hands; and as it had been anticipated that the proceeds of the property sold would be subject to a contribution for the privileged expenses of the estate, the purchaser gave to the syndic an obligation, in sólida with S. Blossman as his surety, to secure the payment of the amount which he might ultimately have to contribute. The sale to W. F. C. Duplessis was not recorded in the office of the Recorder of Mortgages, and no lien or mortgage was reserved in the syndic’s sale to Duplessis.

In the mean time, the property was sold by Duplessis to Francois Gardére, and the Recorder of Mortgages delivered, for the purposes of the sale, a clear certificate of mortgages; and on the 5th of May, 1840, Francois Gardére sold the same property to Fergus Gardére, the defendant in the rule.

On the 7th of March, 1842, the syndic filed his account or tableau of distribution, in which he charged the property purchased by Duplessis with a contribution for the legal and privileged charges and expenses, amounting to $1,359 75, and the tableau was duly homologated. Neither Duplessis nor his surety having paid the amount, a rule was taken upon them by the syn-die, and a judgment was rendered against them, in solido, for the said sum, being the amount which, according to the tableau of distribution, the said Duplessis is bound to contribute. In December, 1842, a fi. fa. was issued against Duplessis and Bloss-man, which was returned as stayed by order of the plaintiff’s counsel; and on the 3d of March, 1843,, an alias fi. fa. having also been issued, the same was returned by order of plaintiff’s attorney, as having expired before it could be executed; whereupon, a third writ of fi. fa. having been issued, which was levied on the property in the hands of the present defendant, and discontinued by order of the Parish Court, as appears by the sheriff’s return, the rule under consideration was moved for and obtained.

We think the rule was correctly discharged. It is not pretended that the. third possessor of the property purchased by Duplessis was aware that the latter was bound to pay a part of the price thereof, as a contribution to the amount necessary to pay the legal and privileged charges, and that a mortgage and privilege still existed on the said property to secure the payment of such contribution: Neither the act of sale, nor the prods-verbal of adjudication were recorded in the mortgage office; no lien, mortgage, or privilege was reserved by the syndic, who had permitted the purchaser to retain the price, so as to apply the funds to the extinguishment or satisfaction of the mortgage notes which he held 'against the insolvents; and unless the ap-pellee had expressly assumed the payment of the contribution, we cannot see any reason why he should be made liable for its amount.

Our Civil Code, art. 3238, provides, that the “ vendor of an immovable only preserves his privilege on the object sold, when he has caused to be duly recorded, at the office of the Recorder of Mortgages, his act of sale, whatever may be the amount due to him on the sale”; and arts. 3314 and 3317 require that all mortgages should be recorded, and provide that such mortgages are only allowed to prejudice third persons, when they have been publicly inscribed on records kept for that purpose. Here, when Duplessis sold to Franqois Gardére, the appellee’s vendor, who paid him the full price of the property, the Recorder of Mortgages gavera clear certificate of mortgages, because none existed upon his books, as none had ever been recorded; and it is perfectly clear that the failure of ¿the appellant, to preserve his mortgage and privilege in the manner directed by law, must have the consequence of disabling him from exercising them on the property in thejiands of innocent purchasers who are not personally liable for the debt.

Judgment affirmed.