The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-12-15

uon or want OF service except appearing and au-
swerlng to the merits that the proof of the SER
vice OF citation is not matter en- pals and there
can be no evidence of ii but the sherif's return
unless service be waived By the appearance Of the
party. That the service must appear by mat
ter OF record snd no parol evidence of il can be
received. ~. r., article 206, Harris vs.. Alexan-
der, r. 30C
Tested by these elementary rules, the citation
IN the case of Perroux vs.. LIE Blanc, as evidenced
by the original return. was clearly defective.
There is no allegation of agency in the petition,
and admitting that lie Blanc, Jr. 4 Co., in electing
ss their domicil the Office of Beocq, Noblom &
Co., In New Orleans, elected 1t as place to re-
ceive citations, it does not appear by the original
return that the service was made at this elected
d0micil, nor does it appear the service was made
upon person apparently above the age of four
Teen, living IN the house. &c. p, 1885, Dol l6 L..
$50; IL L., $40 The defendant seeks to avoid
these conclusions by contendng that the election
OF the Office of Bellocq, Nobom& Co. as a domicl
was mandate to this firm, and each of its men,
bers TO accept services of citations. In support
OF This proposition his counsel have cited French
commentaries and decisions on Art. Ill of the
Code Napoleon, and have urged that although
that article is not 10 be found in our Civil Code
yet Us equivalent is TO be found in G. c.,
Art. IL.
The court, after citing various authorities,
decides as follows:
We think, then, that the judgment in question
In he case at bar must rest upon the facts evil
dtnctd by the original return. and for the reasons
gwen above must be annuled. II, as matter of
fact, 'he service of citation was proper the de.
fendsnts herein can still proceed to perfect
JUGS meDt in the case, since the present Judgment
being snnulled there can be no objection to such
amer dment Of the return as will make it conform
t. the truth.
II is therefore ordered and adjudged that the
judgment appealed from be avoided and reversed,
and that there be judgment 10 favor of the plain
tits agai st be defendants, avoiding and snnung
the judgment OF the sixth District Court of New
Orleans IN favor of l.. e. Perroux VS.. villeneuve
Leblanc Jr., & Co. ia the case numbered I3. 927
OF the docket of said court that the order of in
Junction issued herein on the 9th February, 1866,
be made perpetual and that the defendants pay
the cOsIs of both courts.
ASSOCIATE JUSTICE W. G. WILEY.
No. l4O0-Bank of New Orleans, appellant, VS..
Il. Toledano X Taylor A. J. Du6lho third on
poneDt, appeees-Elmore King for appellant;
j. l.. TIssot for appellees. Appeal from THIRD
District Court of city of New Orleans.
On the 18th December, 1868, the defendant
Taylor, interviewed In the marriage contract be-
tween his daughter and third opponent aud in
consideration Of the marriage made q donation a.
dowery unto his daughter of two lots Of ground
with the improvements thereon, situated in this
city.
The donation was made and accepted in proper
form and the act was duly registered in the mort.
gage Office, parish of Orleans in a book OF dona.
tons kept in that Office In 1866 plaintiff received
judgment against the defendants. based upon an
ndebtedness which accrued subsequent to the
donation and levied upon the property donated.
To iesist the sale OF this property A. Duho the
husband OF the daughter of the donor, Instituted
THIS proceeding OF third opposition and injlnctioo.
On the trial in the court below there was judg.
ment in favor of third opponent perpetlally en-
joining plaintiffs from selling the property In
question, and decreeing judgment against plain
tits tor $500 special damages as attorne vs. fees
and costs. Plaintiffs have appealed.
The question presented to Us for determination
is whether the third opposition title TO the prop.
erty seized was inscribed in the manner required
by law so as to gise effect to the donation as
against third persons.
Plaintiffs conteId that this donation was trans.
fer or conveyance of the property, and should
have been registered in the conveyance office in
pursuance of act 1927 page 1885, but the third oppo-
nent insists that the donation was duly inscribed
in the book of donations in the mortgage Office |
pursuant TO article l54l, Civil Code and that an |
inscription In the conveyance office was unneces. |
saIy.
The act of 1855 created the Office of convey. |
be inscribed In that Office. II this act Of donation
amounts 10 conveyance, IL should have been re |
corded In the conveyance Office and need not have
been registered in the book of donations ia the |
mortgage office. This court has often held that |
possession under an act OF sale is not Sufficient |
notice TO creditors ard subsequent purcha sers to
1efect the registry laws, IA a. Ala and the au-
borteis then cited.)
Does the title of the donee depend upon the law
prescribing the forms of alterations snd the mode |
)f registry thereof? Or does 1t depend upon
compliance with the law prescribing the forms OF |
donations inter riros, and the mode of registry |
hereof
Would this act Of donation of the lots, properly
'rawn up by the notary, have been valid ii re-
corded in the conveyance Office and not in the |
book OF donations in tie mortgage office?
We think not. Article l54l, Civil Code, says
When the donation comprehends property that
nay legally be mortgsged the act Of donation, as
veil as The act Of acceptance, whether the accep-
ance be MADE by the same or separate act, must be
registered within the time prescribed for the
egisiry Of mortgages, in separate book kept for
hat purpose by the register Of mortgages, which
book shall be open TO the inspection of all parties
occurring it," Article 1851. Civil Code, rquires
he recorder of mortgages for the parish OF Or
cans 10 keep three registers one for conventional
mortgages and privileges, another for judicial
no. tesges, and third ito record all donations
which have TO undergo that formslity."
What was the object of registering the act in
he book Of donations 10 the mortgage Office IL
was evidently to give notice TO give II effect as
iganst third parties. Ii was notice in the man
Ter pointed out by law. We think the consttu-
ion of dowery in this case was neither an sena-
Jon nor a mortgage; tina. the act did not irreyo-
ably invest the donee with ownership; that
he validity OF the act and its effect against third
persons Is based upon the articles of the Civil
code prescribing the forms of donating inter
he act of 1855, prescribing the mode of registry of
of immovable property does not ap-
)ly to donations inter uiUos that neither the act
# 1877 nor the act of 1855 repeals article l54l,
)ivil Code, which prescibes the form of register.
Dg donations inter UiUOs.
Plaintiffs brief cites us TO the language of act
# 1855, page 1856, which declares " that no no
srial act concerning immovabe property shall
ave any effect against third persons until the
anne shall have been recorded in the office of
Parish recorder or the register of conveyances of
be parish where such immovabe property il sit
lated. If this language is to be construed to
mean all acts ehectiag immovable property, then
mortgages as well as donations inter uiUOs must
,e registered in the Office of the conveyance, aud
to infer that this act repeats the article of
he {. G. prescribing the form of registering acts
II mortgages ana acts of donation inter UicOs
.oon - 20 NOV uofrevo~~kss-p~vvv -srsvrvrots--t
ion of that act. Plaintiffs contend that If Art.
SAL, c. c. is not rept aed by the statues of regis.
ration that that article has application to mar.
ispe contracts. We think Articles 1927 and 23I7 |
y c. c. completely refute this position of plain.
Inc. Art. l727, c. c., reclsres that +" every dona
ion inter r1uoS though made by marriage con.
ract 10 the husband and wife, or to either of
hem, is subject to the general rules prescribed
or donations made under that title" The dow.
ry OF Mrs. Duflho was settled by her father at
me when he was able to do so; it was donation
az 10 ha |