Succession of Villalobos

3 La. Ann. 477

• Court: Supreme Court of Louisiana
• Decided: May 15, 1848
• Status: Published

Opinions

The judgment of the court was pronounced by ,

Kme. J.

Evariste Marin filed an account of his administration as curator of Argote y Villalobos, on which he placed himself as the assignee of Joseph Vargas, one of the heirs, for $800, to be first paid out of the funds falling to the share of that heir. Gaston Brusle and Madame Wiotte, opposed the account, claiming to be themselves the owners of the entire share of Vargas, and praying that the amount of the inheritance devolving upon him should be paid over to them. Several other oppositions were filed in the lower court, but the controversy, as presented to us, is confined to the respective rights of Marin and of these opponents, to the share of Vargas. The oppositions to the claim of Marin were sustained, and he has appealed.

It appears from the evidence that Vargas passed an act under private signature, in which he declared that, desiring to secure Marin against the consequences of two endorsements, he transferred to the latter all his rights in the succession of Argote y Villalobos, intending that Marin should retain in his hands the funds to be derived from that source, and pay himself, by preference over all other creditors of Vargas, for any disbursements made as the endorser of two notes, for $400 each. The act was recorded in the office of the register of conveyances. Marin took up the notes, some time after the I3th of May, 1847. Subsequently to the execution of this act, Vargas transferred to Brusle and. Madame Wiotte his rights in the succession of Villalobos, to the extent of $1,471 72. And still later, on the 2d November, 1846, he executed a third act, by which he transferred to Madame Wiotte his remaining rights in the succes. sionof Argote y Villalobos, reserving the right of repurchase within a specified time. In this last act he recites the previous partial transfers of his hereditary rights, and, among them, that to Marin, and declares that they are not to be affected by this sale; and that, in the event of his inheritance being insufficient to satisfy the previous claims upon it, the vendee is not to be responsible for their payment.

On the 28th of September, 1846, Murrell issued an'execution, under a judgment which he obtained against Vargas prior to the date of any of those transfers, in virtue of which he caused all the rights of Vargas in the succession to be seized, without regard to the previous transfers. At the sheriff’s sale they were adjudicated to Parra, who ceded them to Madame Wiotle.

Secs. 3, 5 of the stat. of 20 March, 1827, establishing an office for the registry of conveyances in New Orleans, relate to the registry of such acts of transfer as convey the title to property, and not to acts intended to secure an endorser against the consequences of his en-doz’sement. The recording of an act of mortgage or pledge in the office of the register of conveyances in the city of New Orleans, is not notice to third persons. C. C. 3318, 3319,3125.

ON an application for a re-hearing, Lewis and Bermudez, for the appellant, urged that the stat. of 20 March, 1827, ss. 3, 5, has modified the Civij ■Code, so as to make the registry of acts such as that executed by Vargas in the office of the register of conveyances in New Orleans, equivalent to their registry in the office of a notary public.

It is clear that the contract between Marian and Vargas was not a sale but a pledge, by which the former gave his rights in the succession to secure the latter against the liability he had incurred as endorser. The act was under private signature, and could only produce effect against third persons by being registered in the office of a notary public. C. C. 3125. That formality was not observed. The only registry of the act was in the office of conveyances, which is not such a compliance with the law as to give it effect against third persons. Murrell’s seizure covered all the interest of Vargas which had not been previously alienated ; that interest passed by the sheriff’s adjudication, and is now owned by Madame Wiotle. It is true that the latter acknowledged the precedence of Marin’s claim over her own in the second act from Vargas to herself, and could not successfully oppose that act to Marin’s claim ; but she has since acquired the rights of Vargas by a title superior to the second transfer made to her, and superior to any claim that can be asserted by Marin. She holds under Parra, who was not affected by the pledge, nor by the second transfer to Madame Wiotle, which was made while the rights of Vargas were under actual seizure at the suit of Murrell. .

Judgment (firmed.