State Ex Rel. Etheridge v. Ariail

Supreme Court of Louisiana

State Ex Rel. Etheridge v. Ariail

138 So. 517, 173 La. 711, 1931 La. LEXIS 1935

CourtSupreme Court of Louisiana

DecidedNovember 30, 1931

DocketNo. 29816.

StatusPublished

This text of 138 So. 517 (State Ex Rel. Etheridge v. Ariail) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Etheridge v. Ariail, 138 So. 517, 173 La. 711, 1931 La. LEXIS 1935 (La. 1931).

Pincite

Opinion

O’NIELL, C. J.

This is a proceeding by mandamus to compel-a clerk of court, ex officio recorder of mortgages, to omit from a mortgage certificate the record of a tutor’s bond, which the relator signed as surety. He had an opportunity to sell a town lot in Pineville, provided he could furnish a clear certificate of mortgages; and he applied to the recorder for such a certificate, there being no mortgage recorded against the property. The recorder insisted upon showing on the certificate the record of the tutor’s bond, which was recorded in the mortgage records. The relator was compelled therefore to resort to this mandamus proceeding. The district judge gave judgment in favor of the relator, making the writ of mandamus peremptory, and the recorder has appealed. Be has not filed a brief or presented any argument in support of his appeal. Our opinion is that there is no merit in it. The tutor’s bond, though recorded in the mortgage records, was not a mortgage or .lien on the property of the relator, as surety on the tutor’s bond. The Civil Code itself, in article 3041, declares that suretyship does not create a mortgage on the property of the surety unless he expressly agrees that it shall have that effect.

The judgment is affirmed.

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O’NIELL, C. J.

This is a proceeding by mandamus to compel-a clerk of court, ex officio recorder of mortgages, to omit from a mortgage certificate the record of a tutor’s bond, which the relator signed as surety. He had an opportunity to sell a town lot in Pineville, provided he could furnish a clear certificate of mortgages; and he applied to the recorder for such a certificate, there being no mortgage recorded against the property. The recorder insisted upon showing on the certificate the record of the tutor’s bond, which was recorded in the mortgage records. The relator was compelled therefore to resort to this mandamus proceeding. The district judge gave judgment in favor of the relator, making the writ of mandamus peremptory, and the recorder has appealed. Be has not filed a brief or presented any argument in support of his appeal. Our opinion is that there is no merit in it. The tutor’s bond, though recorded in the mortgage records, was not a mortgage or .lien on the property of the relator, as surety on the tutor’s bond. The Civil Code itself, in article 3041, declares that suretyship does not create a mortgage on the property of the surety unless he expressly agrees that it shall have that effect.

The judgment is affirmed.

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Bluebook (online)

138 So. 517, 173 La. 711, 1931 La. LEXIS 1935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-etheridge-v-ariail-la-1931.