Succession of Hutchings

11 Rob. 512

Opinion

Bullard, J.

*

The administrator of the estate of William Hutch-ings deceased having filed a tableau of distribution and a classification of the debts due by it, opposition was made by the administrator of the estate of James L. Johnson, deceased, on the ground that the estate of his intestate had a mortgage on all the real estate of Hutchings, recognised by the Supreme Court, and that the administrator had failed to place on his tableau the said estate, as a mortgage creditor for the balance due, to wit, $765 49, with nine per cent from the 1st of April, 1837.

The sum thus claimed is the balance ultimately found due to Johnson's estate, by a judgment of this court, rendered at the September term, 1841, (19 La. 437,) upon a contract, much discussed in this court, in the cases of Hutchings v. Field et al. and the Same v. Johnson, 10 La. pp. 245, 257. That contract, it will be perceived by referring to it as recited in the report of those eases, was intended to secure to Johnson and others the reimbursement of certain sums which they had engaged to pay for Hutchings, to the Bank of Louisiana. Johnson treated it as a contract of sale of certain real estate and slaves. But this court held, that it had not all the essentials of a sale, but was father in the nature of a mortgage, accompanied by delivery. Johnson Was, therefore, held to account for the services of the slaves during several years while in his possession, in compensation of the amount paid by him in bank, and the result was the balance above mentioned.^ It is now contended, that his estate is entitled to be set down as an hypothecary creditor, in virtue of that contract, for the balance thus found due. To this it is answered that, whatever have been the character and effect of the contract between the parties, it never was recorded in the proper office, so as to give it effect as such against third persons; and that if it had been, it is prescribed by the lapse of more than ten years without reinscription.

It is clear that a mortgagee, whose title has not been duly recorded, is not entitled to be classed as an hypothecary creditor as it relates to other creditors having mortgages duly recorded. In tbe case now before ns, it is not shown that the contract, which we construed to be a mortgage and not a sale, was ever recorded in either of the parishes where the property was situated and Hutchings had his domicil.

The court, therefore, did not err in overruling the opposition,

Judgment affirmed.

Simon J. being interested in this case, did not sit on the trial.