West v. His Creditors

West's counsel, desiring to know of West, what property should be seized, he gave up the certificate in controversy to the counsel, who had it seized, and it was, with other property, advertised to be sold, in the country, at the plantation on which West lived. About the time this certificate was issued, or shortly previous, a creditor of West's, who lived in Kentucky, had the amount attached in Washington for an old debt; whereupon, West became very active in the defence of the suit, and procured and carried on papers and copies of records, to prove that he had given up the certificate, or demand it represented, to his creditors, and that Bennett was still his syndic. By this means the certificate was released from the attachment, and got into the possession of the counsel of the wife of West, who gave it up to the sheriff as before stated. There is no evidence to show that Bennett has ever been discharged as syndic, and it appears that, until this claim was adjusted, there was very little or nothing for him to administer. The last suit of Mrs. West against her husband, with the judgment, execution and proceedings thereon, were given in evidence; as also the proceedings of West in bankruptcy, in the United States court, which were commenced shortly after his wife had obtained her judgment, and the amount of the certificate in controversy was placed on the schedule, as a part of the assets surrendered. The appointment of the assignee is shown, and the discharge of West as a bankrupt.

The judge below overruled all the exceptions of West, those filed by his wife and the assignee in bankruptcy, and gave a judgment directing the clerk of the court, in whose possession the certificate is, to deliver it to Bennett, the syndic, to be by him administered for the use of the creditors; and West is directed to deliver up all or any other property he possessed at the date of the forced surrender. From this judgment Mrs. West, and the assignee of West have appealed.

As to the various grounds of objection raised by the insolvent, it is not necessary to say anything, as he is not a party to the appeal.

As to the plea to the jurisdiction of the District Court, again raised by the assignee of West, it is sufficient to say, that we have once decided it against him, and see no reason to change

West v. His Creditors.

our opinion now, supposing that the party has a right to interpose such an exception to a tribunal into which he has come of his own accord. As to the two other exceptions, we think the judge did not err in overruling them. An intervenor who claims property in controversy between other parties, cannot interfere therein any further than to prove his right to the property. He cannot contest the plaintiff's claim against the defendant, nor urge any irregularities in the suit. 8 Martin, 55. He cannot plead exceptions having for their object the dismissal of the cause. 4 Mart. N. S., 488. 5 Ib. N. S. 501. 1 La. 434. 3 La. 183.

The books in which the

As to the right of the assignee to claim the certificate of indebtedness on the Mexican government, we are further of opinion, that the court below did not err in rejecting his claim. The evidence shows most conclusively, that this was a debt owing to West by the Mexican government, not only previous to the surrender of his property in 1821, but to his application for a respite in 1819. By refusing, or neglecting to put it on his bilan at the latter period, or not surrendering it in 1821, when ordered, he has not acquired any right to it, nor can he, by putting the debt on his schedule when he went into bankruptcy, take it away from the syndic of the creditors, and deprive them of a fund out of which they are entitled to be paid. This debt was in fact as much given up as any other, in 1821. entries were made relating to it, were given up; efforts were made to collect it, or get it recognized by the debtor. They were fruitless for a long time, but at last successful. We consider it very immaterial, whether the syndic had only a right of administration under the act of 1817 relating to voluntary surrenders, or a vested right under the act of 1826, which is supplementary thereto. In one capacity or the other, he has a right to the fund, to be applied to the discharge of the debts existing at the time when Lloyd & Harrison's proceedings terminated in a judgment. It is not material to the assignee, whether Bennett recovers as administrator for the creditors under the first cession, or as owner for their use. The fact of putting this certificate and its amount, on the schedule in the United States Court, confers no better title to it than West had. He had none; nor had he possession at the time. When that schedule was made, West had already de

West v. His Creditors.

livered the certificate to the attorney of his wife; and when the assignee was appointed, it was deposited in court under its order. Suppose the syndic had commenced proceedings against the assignce, as it is urged he should have done, the answer at once would have been, that no such certificate was in his possession. The bankrupt law vests in the assignee all the rights and property which the bankrupt owns at the time of his failure, and nothing more. No property can be acquired by a party's going into bankruptcy and putting it on his schedule. If possession should accompany the act, the assignee could hold it until legally divested by the owner; but if not, he must prove his right, which, in this case, he has failed to do. It is possibly true, that the bankrupt law of Congress did suspend all the laws of the State relative to cessions of property; but it certainly applies to cases arising after its passage, and not to estates in a course of administration when it was enacted. The rights of the creditors under the state law were fixed, and must be determined according to it, in all cases where the proceedings were in existence, previous to the bankrupt

act.

As to the first exception filed by the counsel of Mrs. West, that she cannot understand why she is made a party, or what is sought from her, &c., we think the court did not err in overruling it. The documents served on her show plainly, that the object of the syndic was to get possession of a certificate of indebtedness held by West, which is sufficiently described, which was for the benefit of the creditors whose claims existed prior to the surrender. Upon this certificate it was discovered, that Mrs. West had some lien or right, by virtue of a seizure under her execution, and it was to enable her to assert her claim, that it was suggested that she should be made a party.

As to the second exception, that the proceeding by rule is illegal, we believe the judge was correct in overruling it. It will be remembered, that in the beginning, this proceeding was against John K. West alone, for the purpose of compelling him to surrender all the property he possessed to the syndic of his creditors. This, in the first opinion we gave, we said was correct; and that no proceedings could be too prompt and summary, to compel a ceding debtor to give up all the property his creditors were VOL. VIII.

17

Macarty v. Landreaux, Recorder.

entitled to have surrendered to them. It was incidental to, and connected with the original proceeding, which is still open, and will so continue, until the syndic renders his account and shall be discharged. If Mrs. West had set up any title to the certificate in question, and had had it in possession, it is clear that the proper remedy to recover it would have been by a regular suit; but as it was seen that only a privilege or lien was claimed, it was thought best to give her an opportunity of asserting it, which she has declined to do, and we shall not decide on it; but this does not affect the original proceeding, nor stand in the way of a judgment.

The exception as to the jurisdiction of the court, is disposed of by what has already been said in this opinion, and in that given in June last. We have no doubt as to the jurisdiction of the District Court, to compel the production of the certificate, and its delivery to the person rightfully entitled to it.

Upon the merits, we have only to say, that as Mrs. West sets up no claim to the certificate in question, but only denies the right of the syndic to recover it, there is no question as to that right. We have stated the evidence very fully, and it is sufficient to convince the most sceptical, that the debt to West from the Mexican government, was owing previously to his failure in 1819 and 1821; and that his then creditors are entitled to the benefit of it as their common pledge, to be regulated by their respective rights and privileges, if any exist.

It is, therefore, ordered, that the judgment of the District Court be affirmed; the appellants paying the costs of their respective appeals.

LOUIS BARTHELEMY MACARTY v. PIERRE LANDREAUX, Recorder of Mortgages for New Orleans.

A mortgage, duly recorded, can be erased from the books of the recorder only by the consent of the mortgagee, or by a judgment decreeing such erasure. C. C. 3335, 3336. It is the property of the mortgagee, and cannot be destroyed by any act of the recorder.

Macarty v. Landreaux, Recorder.

A mortgagee cannot maintain an action against a recorder of mortgages for damages for the mere act of erroneously erasing a mortgage, where no attempt has been made to enforce the mortgage. As the act of the recorder could not destroy the mortgage, even against an innocent purchaser, who had bought on the faith of a certificate of there being no mortgage on the property, he can be made liable to the mortgagee for such damages only as may result from the fact of the mortgagee's recourse against the mortgaged property being rendered thereby more difficult and expensive. But the recorder will be responsible to the purchaser, for any loss to which he may have been subjected by the error. The certificate of a recorder of mortgages as to the existence or erasure of mortgages, is only prima facie evidence of the facts stated in it.

APPEAL from the District Court of the First District, Buchanan, J.

Roselius, for the appellant. This is an action to make the recorder of mortgages responsible for the consequences of erroneously erasing a special mortgage, on certain real property, in favor of the plaintiff. The facts of the case are succinctly set forth in the petition-the granting of the mortgage; its registry; its having been illegally cancelled and erased by the defendant; the sale of the property, subject to the mortgage, to an innocent purchaser, without notice; and the inability of the mortgagor to pay the debt; with other circumstances to fix the liability of the defendant.

To this petition the defendant filed two exceptions: First, "that even admitting all the allegations in the plaintiff's pe tition, no right of action is shown against the defendant; and secondly, that, at all events, the action is premature, as the plaintiff has not alleged any unsuccessful attempt to recover his debt, either by personal action against the parties liable, or hypothecary action against the property."

The District Court sustained the second of these exceptions, and dismissed the suit. From this judgment the present appeal is taken. It is difficult to conceive on what ground the opinion of the District Court can be sustained. The judge refers to the 3335th article of the Civil Code, which declares that mortgages can only be "erased, by consent of the parties interested, and having a capacity for that purpose; such consent to be evidenced by a release, or by a receipt given on the records of the court rendering the judgment on which the mortgage is founded." The rule here laid down supports the pretensions of the plaintiff. The plaintiff complains, that the mortgage has been cancelled by the defendant, in violation of this very article of the Code. The liability of the recorder of mortgages for the loss sustained by the plaintiff, in consequence of the mortgage having been improperly erased, is too clear to require argument. Article 3358