Harney v. Quaglino

1 Teiss. 230, 1904 La. App. LEXIS 56

• Court: Louisiana Court of Appeal
• Decided: May 16, 1904
• Docket: No. 3448
• Status: Published

Opinion

DUFOUR, J.

This suit to compel defendant to take title is met with several defenses, one of which alone is corroborated by ttie evidence that tne property was encumbered witn a minor’s mortgage when plaintiff purchased it. The answer to this made by the plaintiff is that Act 170 of 1898, section 63, under which the right operates as a cancellation of all encumbrances, and that under Art. 233 Constitution of 1898, her title, being more than 3 years old with possession in her, is protected by three years from attack.

May 16, 1904. Rehearing refused May 30, 1904.

That the owner, tutor of his minor children and the children themselves could not under the circumstances, annul the title may be true, but, conceding this, the real issue is as to what passed to the purchaser at tax sale.

Section 63 of the Act of 1898 provides that a sale under it “shall operate as a cancellation of all conventional and judicial, mortgages.” The inclusion of two kinds of mortgages is necessarily an exclusion of the third, the legal mortgage which the law grants to minors on the property of their tutors.

R. C. C. 3287, 3311, 3314.

The fact that the general mortgage originally existing by operation of law on all the immovables of the tutor was, with the advice of a family meeting, restricted-to particular property, does not convert the mortgage from a legal to a conventional one.

The tax purchaser took only what the statute gave him, and it did not bestow protection against the minors’ mortgage, which will be effective until emancipation or majority.

The fact that their claim may be exercised some day is suggestive of danger and litigation; hence, the defendant’s refusal to accept title is warranted.

Judgment reversed, and plaintiff’s demand rejected at her cost in both Courts.