The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-03-30
sr AssocrArE JusrrCr wYLEY.


No. 2050--Brinon Koontz W. Jno. fanny,
therif. ct al Appeal from the Thirteenth JUDI.
cisl District Court parish Of ConcoFdie. Mayo d
Spencer for plaintiff and appellants; Il. b. shaw
for defendant and appellee.
This 10 . contest between mortgage creditors
for the proceeds Of the sale Of plantation in the
parish Of Copcordia.
On 10th Nay, 1856, A. T. welch executed the
On 9th Feb. 1859, he made another mortgage
bearing on the same property in favor Of the de-
fepdspt Mrs. Mary E. Shaw.
On 18th September. 1861. Mrs. Shaw applied to
the recorder TO erase the mortgage OF piainti1,
because the same had not been transcribed within
ten years. Plaintiff enjoined the recorder from
making the erssure. This injunction was dis
solved BY the district court, and on appeal by
plaintiff TO this court the recorder was required
TO erase plaintiffs mortgage, which he did. lsee
the case of Britton 4 Koontz vs. Norment re-
corder, ct al, reported last year, decided BY this
oOS5 sSsv Proceeded to foreloss her mort
gage, when plaintiff made third opposition and
epjoined the sheriff from applying the proceeds OF
the sale 10 the Judgment OF Mrs. Shaw, under
which be was selling the property; .,.,..a.
This injunction was dissolved ana pian'ns
PLANTING contend that their mortgage has not
lost its priority in rank over the defendants;
lst. Because the transcription Of their mort
gage was rendered unnecessary by the lnscrip-
ton Of the Shaw mortgage, wherein their note
and mortgage are clearly set forth. =.
3D. Because Mrs. Shaw had full notice OF their
mortgage, the same being mentioned In the certi-
6cate Of mortgage embraced In her own mort
gage, and she cannot be considered third party.
Sd. Because their mortgage contains the TACT
de non aliendndo. and the subsequent mortgage
TO Mrs. Shaw was made 70 violation OF tnas iac''
II viii not require serious argument to refute
the first position Of plaintffs The inscription OF
Mrs. Sbaw's mortgage embracing the mortgage
certi6cate wherein the previous mortgage OF
.lofus d IL nntQ
ton Of plaintfs' mortgage. The mere recital In
her mortgage that plaintiffs had inscribed their
mortgage against the same property Is not aiegal
Art. 1888 Of the G. G. informs MS In what man
ner mortgages must be reinscribed. IL declares
that the effect OF the inscription ceases II they
have not been renewed within ten years, IN the
same manner In which they were first made"
PLANTING second position 10 also untenabie.
The recital of their mortgage In the certificate en-
braced in Mrs. Shsw's mortgage did not make her
party 10 their mortgage. nor DID IL give her any
further notice than she already had from the reg
istry of their mortgage. The previous inscription
Of PLAINTIFF mortgage gave them superior rank
over the defendant and ell junior mortgage credi-
tors during the awful period Of its inscription.
Having failed to reiascribs their mortgage within
ten years PLAINTIFF Host the right Of priority, the
| effect of the inscription. @. O. 1888.
| This right did notresult from any notice Judi
cisl or extra Judicial which Mrs. Shaw might have
OF the existence Of their mortgage. but It resulted
4 ALONE lrOm tuc iubphiPtioh honA SeAA4PAJahb "@~~
Plsisiifis cannot invoke the registry laws to
| establish their priority on the proceeds In the
hapds Of the sheriff resulting from the sale OF the
| property under Mrs. Shsw's mortgage, because
they have lost the right Of priority which these
laws gave them by failing to renew their inscrip.
ton within ten years ss required by said laws. .
R. l66. 4l9; 2 A. 100; Is A. 500. ..
The third position Of plaintiffs is also Invalid:
The fact de non dliendndo contained In planting
| mortgage did not render inscription unnecessary.
and the subsequent mortgage to Mrs. shaw nun
| and void.
sty of notice TO any third possessor OF the mort
gsged property, that plaintiffs could proceed TO
foreclose their mortgage, contradictory with tne
mortgsger. Just the same as II the property re-
| manned in the hands Of the mortgsger. The OBJ
ject Of that clause Was to prevent the delays Of .
hypotbecsry action In case the property might
be sold. II did net dispense with the necessity OF
inscription and transcription. Inscription wa.
against third pers5ns and transcription within ten
years was absolutely essential TO preserve thai
effect for longer period. G. O., 1914, 1888.
Il Is therefore prdered that the Judgment ap
pealed from be affirmed with costs. sr
by ASSOCIATE JUSTICE J. @. rALIAFsRno.
No. ll45-Eugvne Lasere vs. Eugene Rocherear
& Co. ct al. Appeal from the Sixth Distric
Court of New Orleans. A. and NJ. VOORHEES, fol
| plaintiff and appellant; J. Magner and @. e
| Schmidt for defendant aud sppellees; Miles Taylo
for Samuel Moore and Mrs. @. Bullitt and hus
band, appeees. a4.g4 -
The plaintiff sues to snnul the sale made vit
ereclaiUd, under the following circumstances
After the taking Of New Orleans by the nationa
forces in the spring Of 1862, the plaintiff benI
what was termed " Q registered enemy OF tn
United States" and q resident OF the city. re
ceived o military order dated May 8, 1868, .
leave the parish for the socalled Confederacy be
| fore the 18th Of that month.
In conformity with this order II seems from th
.. | evidence that he went TO Mobile about the end o
the month of May, 1868, where he continued TO re
side until that city was captured In April, 1865,
| which time be returned to New Orleans Abou
six months after his departure from New Orleans
, in 1863 the defendants being mortgaged creditor
, |, Of the plaintiff by act importing confession Q
judgment, obtained orders of seizure and sal
against the mcrtgsged property. ETC., and sfte
usual process the property was sold.
In the month Of November, 1865, the plainti
instituted suit TO snnul the sale OF his property
, various grounds. Judgment was rendered in fsyo
, Of defendants and the plaintiff has appealed. To
court, after reasoning the case at consdorsbl
| length, decides:
1t is, therefore, ordered, sdjudred and decree
that the Judgment Of the District Court be afirme
| with costs. ...