Vance v. Vance, Ex

• Citation: 108 U.S. 514,2 S.Ct. 854,27 L.Ed. 808
• Parties: VANCE and another v. VANCE, EX'X, etc
• Decision Date: 07 May 1883
• Court: United States Supreme Court

108 U.S. 514

2 S.Ct. 854

27 L.Ed. 808

VANCE and another v. VANCE, EX'X, etc.

May 7, 1883.

C. W. Hornor, for plaintiff in error.

E. M. Hudson, for defendant in error.

MILLER, J.

This is a writ of error to the supreme court of Louisiana. In a proceeding in the state court of Louisiana the plaintiff in error recovered a judgment against the defendant in error, as executrix of the succession of her husband, S. W. Vance, for the sum of about $75,000, due from him to plaintiff in error as her natural tutor. The sum thus found due was the result of an accounting concerning this tutorship during the period between October 15, 1859, and May 18, 1877. Article 354 of the Civil Code of Louisiana, in force when this tutorship began, says: 'The property of the tutor is tacitly mortgaged in favor of the minor, from the day of the appointment of the tutor, as security for his administration, and for the responsibility which results from it.' The court of probate, which adjusted this account, decreed in favor of the plaintiff in error that her mortgage privilege for the sums and interest found due her be recognized on all the lands owned by Samuel W. Vance, the deceased tutor, on and after the fifteenth day of October, 1859. From this branch of the decree certain creditors of the deceased tutor, who had been permitted to intervene, appealed to the supreme court of the state, and that court reversed the decree of the probate court by deciding against the existence of this mortgage privilege. The ground on which this privilege was denied is found in article 123 of the constitution of the state of Louisiana, adopted in April, 1868, which is as follows:

'The general assembly shall provide for the protection of the rights of married women to their dotal and paraphernal property, and for the registration of the same; but no mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this state shall cease to have effect against third persons after the first of January, 1870, unless duly recorded. The general assembly shall provide by law for the registration of all mortgages and privileges.'

The legislature did pass the act of March 8, 1869, No. 95: 'To carry into effect article 123 of the constitution, and to provide for recording all mortgages and privileges.' Session Acts 1869, p. 114. Section 11 reads:

'That it shall be the duty of the clerks of the district courts of the several parishes in this state to make out an abstract of the inventory of the property of all minors whose tutors have not been required by law to give bond to their tutorship, such abstract to describe the real property, and give the full amount of the appraisement of all the property, both real and personal, and rights and credits, and to deposit such abstracts with the recorders of the several parishes, whose duty it shall be to record the same as soon as received in the mortgage-book of their parish; such abstracts to be made out and deposited with the recorders by the first day of December, 1869, and recorded by the first day of January, 1870. This section to apply only to tutorship granted before the passage of this act, and any failure of the clerks or recorders to perform the service required by this section shall subject them to any damages that such failure may cause any person, and shall further subject them to a fine of not less than one hundred nor more than one thousand dollars, for the benefit of the public school fund, to be recovered by the district attorney or district attorney pro tem. before any court of competent jurisdiction. Such abstracts, when recorded in any parish in which the tutor owns mortgageable property, shall constitute a mortgage on the said tutor's property until the final settlement and discharge of the tutor. The fees for making out and recording such abstracts shall be the same as the fees prescribed for the clerks and recorders for other similar services, and shall be paid on demand by the tutor, or, if the minors have arrived at the age of majority, by them; and if no responsible person can be found, then any property owned by the minors for whose benefit such services were performed, shall be sold to pay the same; and if no person or property be found to pay the same, then the parish shall pay the same, and have recourse against the person or property of any person for whose benefit the services were performed.'

The case comes to this court on the proposition that, as thus construed, the constitution and statute of Louisiana impair the obligation of her contract with her tutor concerning his duty to account for her estate in his hands, and also violate the provision of section 1, art. 14, of the amendments to the constitution of the United States.

The view of the supreme court of Louisiana on this matter is very clearly presented in the following extract from its opinion in the case:

'Waiving the question (which is certainly a debatable one) whether or not the obligations and mortgages existing against the natural tutor in favor of his ward arise or spring from contracts, we think the plaintiff's argument untenable, in that it assumes that article 123 destroyed or impaired plaintiff's mortgage obligation in the sense of the constitution of the United States. Had the article simply declared the abolition and extinction eo instanti of all tacit mortgages, there would have been the case presented by plaintiff's argument. But it did nothing of the sort. It fixed a future day, reasonably distant, and declared that such mortgages would perempt, prescribe, or cease to exist as to third persons unless recorded by that date.

'It is in its nature a statute of limitations. The right of the state to prescribe the time within which existing rights shall be prosecuted, and the means by and conditions on which they may be continued in force, is, we think, undoubted. Otherwise, where no term of prescription exists at the inception of a contract, it would continue in perpetuity, and all laws fixing a limitation upon it would be abortive. Now, it is elementary that the state may establish, alter, lengthen, or shorten the period of prescription of existing rights, provided that a reasonable time be given in future for complying with the statute.' See Cooley, Const. Lim. 376; Story, Coust. p. 236, § 1385.

These observations seem to us eminently just. The strong current of modern legislation and judicial opinion is against the enforcement of secret liens on property. And, in regard to real property, every state in the Union has enacted statutes holding them void against subsequent creditors and purchasers, unless they have actual notice of their existence, or such constructive notice as arises from registration.

The constitution of Louisiana introduced this principle, and did it with due regard to existing contracts. It did not change, defeat, or impair the obligation of the tutor to perform that contract. It did not take away or destroy the security which existed by way of lien on the tutor's property, nor as between the tutor and the ward did it make any change whatever. But it said to the latter:

'You have a secret lien, hidden from persons who are dealing every day with the tutor on the faith of this property, and in ignorance of your rights. We provide you a way of making those...