Gulf South Bank & Trust Co. v. Demarest

• Decision Date: 11 January 1978
• Docket Number: Nos. 8587-8590,s. 8587-8590
• Citation: 354 So.2d 695
• Parties: GULF SOUTH BANK AND TRUST COMPANY v. Francis J. DEMAREST, Recorder of Mortgages. GULF FEDERAL SAVINGS AND LOAN ASSOCIATION OF JEFFERSON PARISH v. Francis J. DEMAREST et al. SECURITY HOMESTEAD ASSOCIATION v. Francis J. DEMAREST et al. DELTA INVESTMENTS OF NEW ORLEANS, INC. v. Francis J. DEMAREST et al.
• Court: Court of Appeal of Louisiana — District of US

Page 695

354 So.2d 695

GULF SOUTH BANK AND TRUST COMPANY v. Francis J. DEMAREST, Recorder of Mortgages.

GULF FEDERAL SAVINGS AND LOAN ASSOCIATION OF JEFFERSON PARISH v. Francis J. DEMAREST et al.

SECURITY HOMESTEAD ASSOCIATION v. Francis J. DEMAREST et al.

DELTA INVESTMENTS OF NEW ORLEANS, INC. v. Francis J. DEMAREST et al.

Nos. 8587-8590.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 11, 1978.

Steven R. Plotkin, New Orleans, for Mr. and Mrs. Jack J. Weiss.

Nicholas J. Gagliano, Mmahat, Gagliano, Duffy & Giordano, Metairie, for Gulf Federal Sav. and Loan Ass'n of Jefferson Parish.

Edmond G. Miranne, Miranne & Miranne, New Orleans, for Security Homestead Assn.

Francis J. Demarest, Recorder of Mortgages in pro per.

Before REDMANN, SCHOTT and BEER, JJ.

REDMANN, Judge.

Mr. and Mrs. Jack J. Weiss appeal from a judgment which declared fraudulent and null, and ordered erasure of, cancellations of mortgages. The mortgages affected the home the Weisses bought at a time when the fraudulent cancellations made it appear that the property was freed of those mortgages. We affirm.

Because this matter began as a mandamus proceeding, we first note that Caumont v. Hickey, La.App.Orl.1936, 165 So. 488, 491, held mandamus unavailable; Caumont reasoned that to "erase the cancellation" is not a "ministerial duty" (see La.C.C.P. 3863) because the cancellation was itself a ministerial duty under C.C. 3374. However, in our case no party excepted to the unauthorized use of summary procedure and therefore that objection to the form of procedure is waived; C.C.P. 926. Zimmer v. Fryer, 1938, 190 La. 814, 183 So. 166, shows that the substance of the relief sought is available in an ordinary proceeding (although the recorder was not there a party). See also Carrere v. Reddix, 1947, 211 La. 566, 30 So.2d 432, dismissing for lack of interest the Recorder's appeal from a judgment "reinstating" a cancelled mortgage. We hold the objection to mandamus waived.

We also dispose preliminarily of the homeowners' argument that "between two equally innocent parties, a burden should fall upon the party more able to bear it." Counsel asserts that this is "well settled legal doctrine" but cites, and we find, no supporting authority. Such a doctrine might deprive appellants of their home if a forger sold it to a buyer poorer than they and thus less able to bear the loss. One bears a burden under our laws because of one's contract (or quasi-contract) undertaking the burden, or because the law imposes the burden, as to repair damage caused by one's fault or by persons or things under one's control. Absent contractual or delictual liability, that one is wealthy does not oblige one to shoulder another's loss.

Appellants also suggest that we hold the Recorder of Mortgages liable "for failure to take such steps as would discourage or eliminate such fraudulent cancellations as have caused this heavy burden." This we cannot do because appellants have not sued the recorder. The approach commends itself to the Legislature because it would, by insurance, C.C. 3394, spread the risk of loss so that it not destroy the hapless homeowner. Some relief for persons in appellants' position ought to be provided. The Digest of 1808, p. 466, art. 60, gave relief: it provided that the omission of a recorded mortgage from the recorder's certificate left the property, "saving the responsibility of the (recorder), free from the charges omitted in the hands of the new possessor . . . ."

That 1808 provision was deleted from the Civil Code of 1825. More recently, in Acts 1970 No. 609, requiring recorders to maintain liability insurance (rather than an inadequate bond), the Legislature again expressed the intent to protect innocent persons harmed by errors on the part of the recorder. The courts, too, have enforced the recorder's liability under C.C. 3394 when discrepancies are shown between the fraudulent notes and the mortgage's description of the original notes; Fisher v. Levy, 1934, 180 La. 195, 156 So. 220. One may assume that the Recorder's "omitting to mention" recorded acts within C.C. 3394 means omitting to mention acts whose inscription has not been cancelled in accordance with the Code or other statutory requirements (e. g., R.S. 9:5167). Whether the present cancellations were authorized by law is not an issue in this case.

Appellants stress their freedom from fault, although they concede the mortgagees' equal innocence. They also claim protection of "the legal doctrine that persons in good faith buying real estate or acquiring a mortgage or lien on realty can rely on public records in determining ownership or encumbrances of real property".

This argument overstates Louisiana recordation law. It omits to address the problem of the radical invalidity of forged instruments affecting land: if a good-faith mortgagee could lose his mortgage because a fraudulent release...