Wilson v. Lowrie

101 So. 549, 156 La. 1062, 1924 La. LEXIS 2150

• Court: Supreme Court of Louisiana
• Decided: June 20, 1924
• Docket: No. 25366
• Status: Published

Opinions

By the WHOLE COURT.

LECHE, J.

Plaintiff, having obtained a judgment against defendant, seized an oil drilling outfit, together with other movable effects used in connection therewith, as the property of defendant. Thereupon the Oil City Iron Works intervened in the suit and filed a third opposition, claimed ownership of the property, and, in the alternative and in the event its ownership was not recognized, it prayed that its rights as mortgagee and its privilege as vendor of the seized property be declared superior in rank to the claim of plaintiff, and that it be paid by privilege and by preference over’ plaintiff out of the proceeds of sale of the property.

From a judgment partly in favor of plaintiff and partly in favor of third opponent the latter has appealed.

The only contest in this court is whether a chattel mortgage in favor of third opponent on 1,500 feet of 4-inch pipe is valid and binding, and whether third opponent is entitled to a vendor’s lien and privilege on 600 feet of 6-ineh pipe, all of said pipe, measuring 2,100 feet, being part of the property seized by plaintiff.

The apparent inconsistency in third opponent’s claim for the ownership of the property and, in the alternative, for the recognition of mortgage and privilege rights thereon does not seem to have been taken advantage of by plaintiff, and the case was decided in the lower court and presented in this court as if the claim of ownership had been abandoned, and we will assume that it has for the purpose of this opinion.

1. The 1,500 feet of 4-inch pipe was sold by third opponent as part of a drilling outfit to Martin & Long, a copartnership engaged in drilling oil wells and operating under the firm name of “the Oil Well Drilling Company.” The drilling outfit, including the 1,500 feet of pipe, was mortgaged by the vendee to the vendor. It had been delivered by the vendor to the vendee at Arcadia in the parish of Bienville, and the act of mortgage was inscribed in the proper records in Caddo parish, the domicile of the vendor, and also in the parish of Bienville, where delivery was made.

Subsequently the 1,500 feet of pipe was removed from the parish of Bienville to Delhi in the parish of Richland, where it became the property of John J. Lowrie. The act of mortgage was not recorded in the parish of Richland, and the first question presented for decision is whether the mortgage still affected the property after its removal from the parish of Bienville into the parish of Richland.

Our opinion is that according to the provisions of the statute a chattel mortgage only affects property while such property is situated within the parish in which the mortgage has been recorded. To hold otherwise would be to impose upon- every purchaser of mortgageable movables the duty to search the records of every parish in the state before he could safely acquire an incumbered title to the same.

The statute (Act 198, p. 372, of 1918) provides in section 2 that, in order to affect third persons without notice, the act evidencing the mortgage shall be recorded in the office of the recorder of mortgages in the parish where the property shall then be situated, and also in the parish in which the mortgagor resides. Section 5 provides that the mortgagor shall not move the property mortgaged from the parish where said mortgage is given without the written consent of' the mortgagee designating the parish or parishes to which same may be taken, and to preserve such mortgage against third persons in such cases it shall be the duty of the mortgagee to have a copy thereof recorded in the parish or parishes to which said removal is permitted.

- It is thus as clear as language can make it that the mortgage does not follow the property when the property is removed into a parish in which the mortgage has not been recorded. The language immediately following in the same section accentuates this construction of the law by penalizing a purchaser in the amount of the debt due the creditor when he purchases a mortgageable movable without requiring from a nonresident owner and vendor an affidavit that there is no mortgage on the property nor any money due for the purchase price thereof. If the mortgage followed the property, there would be no necessity for this penalty, as the property would pass into the hands of the purchaser incumbered with the mortgage.

We are therefore of the opinion that the 1,500 feet of á-inch pipe, when seized by the sheriff as the property of Lowrie, was unincumbered, and passed into the hands of the sheriff free of the chattel mortgage under Which third opponent bases its claim.

2. The vendor’s lien and privilege claimed by third opponent on the drilling machinery, and especially on the 600 feet of 6-inch pipe, was, in our opinion, lost when the pipe was seized in the hands of Lowrie.

It is admitted that the 6-inch pipe was sold by third opponent to Long, or to Martin, & Long, or to the Oil Drilling Company, apparently the same concern. Of course, as long as the pipe .was owned and possessed by that vendee, it was affected under the law with third opponent’s vendor’s lien and privilege, but the- moment it passed into the hands of Lowrie as the latter’s property that privilege ceased. This is not disputed by third opponent, but opponent contends that, its original vendee being unable to pay the purchase price, Lowrie was substituted. as its vendee with the same effect as if Lowrie has been the original purchaser. The evidence does not sustain this contention. In order to substitute • Lowrie as a vendee, it would have been necessary that all three of the parties consent to the transaction, that the pipe be returned by Long, or Long & Martin, to third opponent, and that third opponent make a direct sale to Lowrie, Not only did the parties fail to do this, but it is shown that third opponent refused .to sell directly to Lowrie, as it lacked confidence in Lowrie’s financial responsibility.

The judgment of the district court maintaining plaintiff’s prior rights on the 1,500 feet of 4-inch pipe and on the 600 feet of 6-inch pipe is correct and should be affirmed, and for the reasons stated.

It is so ordered.