State ex rel. Landry v. Broussard

• Decision Date: 09 December 1937
• Docket Number: 1767
• Citation: 177 So. 403
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE ex rel. LANDRY v. BROUSSARD, Clerk of Court, et al

177 So. 403

STATE ex rel. LANDRY v. BROUSSARD, Clerk of Court, et al

No. 1767

Court of Appeal of Louisiana, First Circuit.

December 9, 1937

J. O Broussard, of Abbeville, for appellant.

Kibbe &amp Bailey, of Abbeville, for appellee.

OPINION

OTT Judge.

The relator, Duclas Landry, seeks by mandamus to compel the clerk of court and recorder of Vermilion parish to cancel and erase from the records of the parish the inscription of a special mortgage and vendor's privilege given by him on January 24, 1918. On the date mentioned, relator purchased two tracts of land from Aurelien E. Broussard for a recited consideration of $ 3,500, of which amount $ 500 was paid in cash, and the balance was represented by ten promissory notes of relator for $ 300 each, due January 2, 1919, and annually thereafter; the last note maturing on January 2, 1928. These notes bore interest from date and were secured by a vendor's privilege and special mortgage on the property conveyed. The act of mortgage and vendor's privilege was duly recorded in the mortgage records of the parish on February 9, 1918, and the same was reinscribed on February 16, 1927.

The first four notes were paid. Nothing was paid on the principal of the last six notes aggregating $ 1,800. The last payment was made on May 2, 1930, to apply on the interest, and which paid the interest to June 4, 1928.

These six notes are held by the Latrielle Estate, Inc., of Jennings, La., and this holder was made a party to these proceedings. The erasure and cancellation of the inscription of the vendor's privilege and special mortgage is sought on the ground that the inscription resulting from the recordation of the act of sale in the mortgage records, and its re-inscription therein in 1927, have prescribed under article 3369 of the Revised Civil Code, as amended by Act No. 50 of the year 1924, and for that reason the effect of the registry has ceased to exist; that the notes identified with the credit sale and special mortgage have prescribed under article 3540 of the Revised Civil Code.

The holder of the notes appeared and filed an exception of no cause or right of action which was referred to the merits. This defendant then filed an answer denying that the notes were prescribed and averring that the reinscription of the act preserved the vendor's privilege and special mortgage to January 2, 1939.

The case is before us on an appeal by the holder of the notes from a judgment ordering the erasure and cancellation of the vendor's privilege and special mortgage.

A mortgage is accessory to a principal debt which it is designed to strengthen and secure, from which it results that, when the principal debt is extinguished, the mortgage falls with it. R. C.C. arts. 3284 and 3285. Therefore, where the debt, or the principal obligation, is represented by a note and the note becomes extinguished by prescription, the mortgage securing the note becomes without effect as there is no longer anything to secure, and no further reason for the mortgage to continue. Shields v. Brundige, 4 La. 326; Auguste v. Renard, 3 Rob. 389. There is no dispute in this case in so far as the prescription of the six notes is concerned, as more than five years elapsed from the last payment in 1930 until the suit was filed in 1937, and no interruption of prescription is alleged or proved in the interim. It follows that the special mortgage securing the notes is no longer in effect.

But counsel for the holder of the notes contends that the vendor's privilege does not fall on the prescription of the notes as this privilege is separate and distinct from the special mortgage and is part of the sale itself and arises from the nature of the debt. It is true that a vendor's privilege...