
    
      TRUDEAU & AL. vs SMITH'S SYNDICS.
    
    East’n District.
    
      Jan. 1823.
    
    Appeal from the court of the first district.
    Whether the vendor's privilege be lost, if the deed be not recorded in the parish in which the land lies.
    Workman, for the plaintiffs.
    The petitioners, who are the heirs of the late Zenon Trudeau, brought this suit to obtain the payment of a debt due to them by the insolvent, as a part the price for which they had sold their plantation to him, and for which they contend that they are entitled to the vendor’s privilege on the thing sold. This claim was opposed by Morrison and Whitehead, on the ground that the vendors are not entitled to this privilege, inasmuch, as they have not recorded the act from which it arises, in the manner which it is said the law prescribes. The court below decided in our favour, and the opposing parties have appealed from that decision.
    The plantation in question is situated in the parish of St. Charles. The deed of sale, by the petitioners to Smith, was passed on the eighth day of October, in the year of our Lord one thousand eight hundred and sixteen, before the judge of the parish of St. James: it was recorded, however, in the office of the judge of St. Charles, on the seventeenth day of March, in the year of our Lord one thousand eight hundred and twenty-one; and in the office of the recorder of mortgages, in this city, on the twenty-sixth day of July following. Three instalments of the price, amounting to the sum of 75,000 dollars, were unpaid when Smith failed.
    The privilege claimed in this case, is one of those considered by our laws, and by the general sentiment, as among the most sacred.
    The right of the seller of immoveable property, to his lien upon it for the price unpaid, can hardly be taken away or impaired, without violating the principle of property itself. By the Roman lawyers it was held, that the property sold did not belong absolutely to the purchaser until the price was fully paid. However that matter may be among us, it is clear, from an attentive examination of our statutes, that the vendor's privilege, on the thing sold, is not one of those liens which requires to be recorded in order to be preserved.
    It is maintained, in the first place, that the act of sale of this plantation, to Smith, can have no effect against the opposing creditors, who claim a preference under conventional and judicial mortgages; because it was not recorded indue time, according to the law of the year one thousand eight hundred and ten, 3 Martins Dig. 140. The seventh section of that statute declares, that “ no notarial act, concerning immoveable property, shall have any effect against third persons, until the same shall have been recorded in the office of the judge of the parish where such immoveable property is situated.” This law might have been invoked in favour of a bona fide third party, to whom the Trudeaus might have made a sale of the plantation, after they had sold it to Smith. But it can be of no use to our present antagonists, who claim as mortgagees of Smith. It is on the validity of the sale to him that their right, whatever it may be, to the proceeds of this property, depends: if the sale to Smith is invalid, as to them, Smith had no right whatever to mortgage the plantation in their favour.
    The great error which pervades the whole argument on behalf of Morrison, lies in considering him as a third party. He is no third party, in the sense of the law. He claims under Smith, as a purchaser from Smith, or as Smith’s heir might do: and he cannot therefore stand, with respect to the force and validity of his mortgage, in a better situation than Smith himself does or could do, with respect to the validity of his purchase.
    The act of sale stipulates, that a portion of the price shall be paid down, and the remainder in four annual instalments; to secure which, the buyer consents to, and the seller reserves a mortgage and privilege on the estate.
    Although the word mortgage is used in this, as in most other acts of the kind, it is evidently superfluous or even improper, unless the privileged mortgage be understood.
    The mortgage, generally, is defined, by the Code, to be a contract by which a person affects the whole of his property, or only some part of it, in favour of another, for security of an engagement, but without divesting himself of the possession.
    From this definition it follows, that a purchaser cannot grant a mortgage by the act of sale by which he acquires the property. Until that act is completed, the property does not belong to him. What is commonly called the vendor’s mortgage in such cases, is really the right or the privilege, which is not granted by the purchaser, for as yet he has nothing in it to grant, but which is reserved by the seller with the purchaser's consent.
    
      The Civil Code, 452, art. 4, divides mortgages, at first, into three classes, viz—the conventional, the judicial, and the legal or tacit mortgage.—Afterwards, there is another classification of them, (art. 29)—into simple mortgage. and privileged mortgage. The simple mortgage includes the three sorts already specified. These three have this common character, that they give to the creditor no other preference of right, over his debtor’s property, than that which the date of his title or of its recording affords to him; according to the rule, the first in time is paid first. But the fourth kind, the privileged mortgage, or, as it is otherwise called, the privilege, is that which derives from a privileged cause, which gives a preference over the creditors who have only a simple mortgage, though of a prior date. Such is the privilege of the vendor, who has the preference over every other creditor for his payment, on the real property he has sold—Code, same art. last paragraph. Between this last mentioned privilege, and the legal mortgage, there is another very important distinction, viz.—that the legal mortgage affects the whole of the debtor’s immoveable property, while the vendor’s privilege attaches only on the property sold. No two liens are more distinct in their nature and character, than that lien which has the effect of a legal mortgage, and that which the vendor possesses for the security of the price of his property.
    The Code, 454, art. 16-17, enumerates several cases, where the legal mortgage takes place; and declares, that there is no legal mortgage, but in the cases directed by the law. It declares also, art. 27, that the legal mortgage is not required to be recorded. And again, in the section on the registering of mortgages, p. 464, art. 54, it expressly ordains, that privileges on moveables as well as on immoveables, and legal mortgages, (always discriminating between privileges, and legal mortgages) have their effect against third persons, without any necessity of being recorded. But afterwards, in the year 1813, the general assembly thought fit to make a different regulation—so far as respected legal mortgages only. They passed an act requiring those mortgages to be recorded, and declaring that all liens of any any nature whatever, having the effect of a legal mortgage, which should not be recorded agreeably to the provisions of this act, should be utterly null and void, except between the parties thereto.
    This is the act principally relied upon to defeat our claim. But it is evident from what I have already stated, that our case is not comprehended in this provision. Ours is the privilege accorded to the vendor of immoveables on the estate sold, pursuant to the provision of the Civil Code, 470, art. 75. We contend, that we have a privilege, not a legal mortgage, on the property in question. Our lien, on the one hand, is prior to all mortgages, whatever might be their date. This characteristic of the vendor's lien is evidently from its nature, independent of any legal provision: for the purchaser could not mortgage it, until after he had acquired it.—And, by a wise provision of the Code, 452, art. 7, he could only then mortgage it, subject to the conditions on which his right on it depended. On the other hand, we do not pretend, that our lien has the extensive effects of a legal mortgage. It does not, as a legal mortgage would do, affect the whole of the debtor’s immoveable property. We claim our privilege only on the property sold.—Our privilege then, or privileged mortgage, is not the same, nor has it by any means the same effects, as a legal mortgage; it comes not therefore within the provisions relied upon of the act of the year 1813.
    This court cannot say, that our privilege ought to have been recorded as a lien having the effect of a legal mortgage, unless they are prepared to adjudge, that if it had been recorded, as that, act prescribes, it would have affected the whole of the debtor's immoveable property.
    I am well aware, that in the Spanish writers on the subject of mortgage and privilege, a good deal of vagueness and confusion may be found. The privilege is sometimes called a legal or tacit mortgage. But even in the Spanish law, the nature and effects of these different species of liens, are clearly pointed out and discriminated, although their names are confounded. In our Civil Code, the names as well us the things themselves are kept perfectly distinct. The privilege, or privilege mortgage as it is sometimes called, is separated from all the other three species of mortgages—the conventional, the judicial and legal—by a boundary which cannot be mistaken. In the Napoleon Code, from which the best part of our Civil Code is taken, the privilege is always denominated by that single word. Our legislators have probably thought that it might be proper to use the words, privileges and privileged mortgages, in order to distinguish the privilege on moveable, from the privilege on immoveable property.
    The supposed intentions of the legislature are appealed to. What, it is asked, could they mean by a legal mortgage, but a mortgage imposed or created by law? When the words of a statute are of clear and precise signification, those words alone are to be regarded. The words of the statute have an evident reference to the definitions and distinctions of the Civil Code; and, if it were necessary, it were easy to show why the legislature did not comprise the privilege along with the legal and judicial mortgage. The act enumerates most of the different species of contracts, judgments, decrees, &c., having the effect of those kinds of mortgages, and then includes, in one sweeping clause, all liens whatever having the effect of a legal mortgage. Would it have been right, would it have been possible, to require the registry of all privileges in like manner? of the privileges of funeral charges, law charges, the charges for medical attendance and the like? But of all privileges, that of the vendor on the estate sold by him, for the price of it, seems the least to require being registered. It is a privilege which must appear manifest on the act of sale itself. If the seller acknowlege, in that act, that he has received the price, in the notary’s presence—or out of it, with the proper renunciation of the exception non numeratae pecuniœ—then there is an end of the vendor's privilege. If the price, or any part of it, appear due, then how can the privilege be unknown? Does any person of common prudence or understanding, purchase, or lend his money on the mortgage of property, without examining the title deeds? The privilege of a lawyer, a physician, a builder, may be hidden; but the privilege of a vendor can never be concealed from him who will take the trouble to make proper inquiries. You say, the deed to Smith was not registered in the proper office, and therefore you could not have cognizance of it. Why then did you lend your money, or accept of a security upon this plantation? It is not enough, as has been contended, to inquire what mortgages exist on an estate for which you are about to make a contract. You must inquire whether the other party has any right to it, and how far he may lawfully dispose of it. Suppose our adversary, instead of taking a mortgage on, had purchased this estate, would such a purchase be held valid against the former vendor’s privilege? If he examined the act of sale, he would have notice of the incumbrance. If he did not, he must take the property subject to all the risks arising from his own negligence and imprudence, if indeed something worse might not be imputable to one who would act in such a manner. Our citizens are already sufficiently addicted to hazardous speculations on property in this state. Let no undue encouragement be afforded to those speculations, in which fraud might act under the mask of carelessness.—I put an imaginary case, without designing to make any imputation in the present instance, in which, indeed, no fault appears beyond the imprudence of taking an insufficient security.
    On behalf of the opposing party, claiming under a judicial mortgage, we are told that his case is particularly favourable. He obtained a judgment for a just debt. He saw that Smith had possession of a large estate— he gave him credit on it, and had no business to inquire into his titles. And why did, he do so ? Why did he not first inquire whether the estate was paid for? Is there any thing better known among us, than that such estates are usually sold on a long credit; and that the seller has a privilege upon them for the price due?
    This court has already decided some cases under the act of the year 1813, agreeably to the principles I have endeavoured to maintain. In Lafon vs. Sadler, it was held, that the builder’s privilege on the house built, was not comprehended within the provisions of that statute, and was therefore valid, though it was not recorded. This judgment was rendered in June, 1816; and the legislature, at their next session, amended the act of the year 1813, by ordaining, that in all cases exceeding $500, no architect, &c. should enjoy, with regard to a third party, any privilege, unless he should have entered into a written contract, and recorded it within the time prescribed by law. In the various acts which have been passed upon this subject, the legislature never think of requiring a record of the vendor’s privilege. If they ever intended to require such a record, it must have occurred to them on several occasions—as when they were amending the Civil Code, by ordaining that legal mortgages should be recorded; and, on the subject of the builders privilege, when they passed the law of the year 1817, occasioned probably by the decision in Lafon vs. Sadler. The legislature thought, no doubt, that it was useless to insist upon the registry of a privilege which could not be concealed from any one who acted with ordinary caution.
    The principle of the decision of Lafon vs. Sadler, has been confirmed by this court in the cases of Millaudon vs. New-Orleans Water Company, 11 Martin, 278, and Jenkins vs. Nelson's Syndics, ibid. 137.
    To this claim of the vendor's privilege, is opposed, first, an act in favour of Morrison, which is considered as a mortgage. It is drawn in the common law form, viz. a deed of sale, defeasible on the payment of money. It is dated the 23d June, 1819; acknowleged in the Fayette circuit court, the 22d day of the same month and year—(there is an error, perhaps a clerical one, in the dale,) and recorded in the parish of St. Charles, the i 5th day of May, 1820.
    
      We maintain, that this deed is not valid as a mortgage, to affect immoveable property in this state. It is a principle of universal jurisprudence, that immoveable property can only be disposed of, agreeably to the laws of the state in which it is situated. Our code has made exceptions to this principle, in favour of certain wills and marriage-settlements; but not, I believe, in favour of any other contracts respecting real property. With regard to the contract of mortgage, our code is particularly rigid. It declares, p. 452, art. 6, that there is no conventional mortgage, except that which is expressly stipulated in the act of writing made between the parties; it is never understood, and is not inferred from the nature of the act. This provision, respecting the nature of the act, is as strict as that which declares that a mortgage,verbally stipulated, is not valid; and it would surely not be contended that a verbal mortgage, though it might be good in some other state, would bind real property in Louisiana. Our law has also ordained, Acts of the year 1817, 124, § 9, that no conventional mortgage shall be valid, unless the sum. for which the same shall have been given, be certain and explicit. Now, in this deed to Morrison, we find that although a sum is mentioned, to secure which the act is given, yet the amount really to be secured is uncertain, depending on the event of a law-suit.
    This court, it is true, has decided in the case of Baron vs. Phelan, 4 Martin, 88, that a bill of sale, taken in connexion with another instrument of writing, by which it appeared that the property was given to secure the payment of a debt, could be considered only as a mortgage of that property. If this decision should still appear compatible with the prohibitory provision of the code which I have just cited, it must be on the ground that agreements are to be construed according to the manifest intentions of the parties. But, on the very same ground, this mortgage must be held void, according to the act of 1817.
    For, on examining with attention the condition of defeasance, it will be seen that the sum, for which this mortgage was really given, was not certain at the time of executing the deed; that although a certain sum was stated, yet that it was the true and manifest intention of the parties, that the amount of it should ultimately depend upon a contingent event. So that, whether the decision of the court be for or against us on the first ground of exception, this act cannot be held valid as a mortgage, in this state.
    The next opposition is on the part of Whitehead, who claims under a judgment duly recorded in the parish of St. Charles, May 17th, in the year 1821. Our deed of sale, the court will recollect, was recorded there on the 17th of March, of the same year. But it is objected, (and the fact is admitted by the attorney on record,) that this recording of ours, was made without any order of court. This circumstance can have no effect on the question of precedency of claims. If the law ever did intend that the vendor’s privilege must be recorded, it is only, as the law itself declares, Civil Code, 464, art. 52, in order to protect the good faith of third persons, and to prevent fraud; and again, 1st Martin's Digest, p. 704, the legislature declare, in the last section of the very act on which our opponents rely, that the formality of recording prescribed by this act, is required solely for the benefit and information of the public. If the parish judge has recorded the deed, without being duly authorized to do so, he and he alone is blameable. The deed once recorded, none of the evils, against which it was the sole purpose of the law to provide, can be apprehended. But, I feel so confident on the principle ground of our defence against Morrison’s claim, which will equally support us against the claim of Whitehead, that I do not suppose the court will feel it necessary to enter into any investigation of this last point.
    Hennen, for the defendants.
    The questions now presented for the decision of the court, arise from the conflicting claims made by two creditors to the proceeds of a plantation, the property of I. K. Smith, an insolvent debtor: James Morrison, on the one part, claiming 15,000 dollars out of them, by virtue of a mortgage, the first recorded in the parish where the land is situated; and the heirs of Trudeau, on the other, asserting their right to the whole by privilege as vendors.
    
    The facts of the case are few and undisputed; the law only, arising thereon, is the source of controversy.
    On the 8th October, 1816, the heirs of Trudeau sold to the insolvent, by a deed of sale given before the parish judge of the parish of St. James, the tract of land situated in the parish of St. Charles; the proceeds of which are now in litigation. By the deed a special mortgage was reserved in favour of the vendors on the premises; but it was not recorded in the parish of St. Charles (where the land is situated) until the 17th of March, 1821.
    On the other hand, James Morrison urges, that he should be paid in priority to the heirs of Trudeau, the amount of his mortgage, which was duly executed in the state of Kentucky, in the common law form usual in that state, on the 23d of June, 1819; and recorded, by order of the judge of the district court, in the parish of St. Charles (where the land is situated) on the 15th May, 1820; nearly one year prior to the recording of the mortgage of the heirs of Trudeau.
    Two instalments of the purchase-money, amounting to 50,000 dollars, had been paid by Smith previously to his failure; since which the heirs of Trudeau, by an order of seizure and sale, granted on the mortgage stipulated in the deed of sale, have caused to be sold by the sheriff, the plantation for $80,000: a sum barely sufficient to cover their demand: and have become themselves the purchasers and possessors of the plantation; which was the only property in the state that the syndic if the insolvent has received for the payment of the just debts of his numerous creditors.
    A judgment against the syndic has been obtained by Morrison, for the amount of his mortgage; which he insists should be paid by the syndic, out of the proceeds of the sale of the plantation, prior to the payment of any other creditor.
    Such in substance are the facts, out of which the present controversy springs; the solution of which involves the decision of but a single point of law: Does the vendor of real estate preserve his privilege thereon, for the purchase-money unpaid, if he neglects to record the deed, which creates his privilege, in the parish where the land is situated? If this question is solved in the negative, as I maintain it should be, there will be no difficulty on any incidental question arising out of the cause.
    The privilege of the vendor on real estate cannot exist under our laws, in any other way than by the deed of sale. For as lands can be conveyed by deed only, (Civ. Code. 311, art. 241.) it follows as a corollary that the privilege which is created by the contract of sale, cannot exist or be proven in any other way than by the contract itself. But we may advance a step further, and assert, that if on the face of the deed the privilege does not exist, the proof of it could not be drawn from other sources; such as a counter-letter, &c.; and if the vendor has acknowledged the payment of the purchase money, no privilege would exist for the payment of the notes &c., which may have been taken instead of money. These principles are fully established by various authorities; Domat. l. 3, tit. 1, § 5, n. 4, in notis; 1 Persil, Régime Hypothécaire, 158, 9. 10 Merlin. Répertoire de Jurisprudence. 29. verbo Privilége de Créance. It then may be safely asserted, that the privilege of a vendor of real estate, as the accessory of the contract of sale, derives as well its existence, as its force from the contract only, as far as third persons are concerned. The contract of sale may subsist in full force, while the privilege of the vendor may have been waived or destroyed. With these principles established, let us look at the positive provisions of the statutes of the state on the subject. The first act of the legislature, to which I will call the attention of the court, is that of 1810. 3 Martin's Dig. 138. By the fourth section of this act, “no instrument stipulating a mortgage shall have any effect against third persons, except from the day on which the same shall have been recorded in the office of the judge of the parish where the hypothecated property is situated." The mortgage therefore of the heirs of Trudeau, which was stipulated in their favour by the insolvent, is clearly of no effect or validity against his creditors, who assuredly are third persons. And though the heirs, in their petition, have availed themselves of this mortgage to obtain thereon the order of sale of the plantation, under which they have re-entered into possession; so plain are the words of this section of the statute, that no claim by virtue of their mortgage has been urged: indeed, it appears to be abandoned.
    It is the privilege of vendors, however, which their counsel insists has not been lost. Let us then examine that hold. The seventh section of that act, 3 Martin's Digest, 140, goes on to enact, that "no notarial act concerning immoveable property shall have any effect against, third persons, until the same shall have been recorded in the office of the judge of the parish, where such immoveable property is situated." By this section it is evident, that between the contracting parties notarial acts or deeds of sale, are to have full validity and effect; as to them they are good to all intents and purposes. Now the privilege of the vendors of the plantation to the insolvent, as an accessory of the contract of sale, was good against him; but I insist that, from the plain words of the act, it can have no force against, third persons. It is only by virtue of the notarial act of sale, that this privilege can be established or enforced, as I trust I have already shown. The heirs of Trudeau must resort to the notarial act of sale, as the only means of establishing their privilege; and against their vendee they had a right to use it; but against third persons, “it shall have no effect," whatever may have been its validity against the contracting party. The argument drawn from this section appears to me perfectly conclusive against the privilege asserted by the heirs of Trudeau against Morrison, a third party. The only answer attempted to be given by their counsel, to the conclusion which I have drawn from it, is that if this deed is not valid against third persons, then the sale itself to Smith is not valid; and he could not mortgage the estate to Morrison. But this by no means follows. On the contrary, the deed of sale is valid so far as it conveyed the estate to our debtor. The statute does not make the act of no effect whatever; but act of no effect whatever; but only declares that it shall have no effect against third persons. The object of the statute was to protect and favour third persons; not to produce an effect against them, but to do something for them. It is not the sale, that Morrison wishes to set aside and annul: it is that privilege which the heirs of Trudeau say they are entitled to by the deed, for the payment of the balance of the purchase-money, he combats: it is that this privilege may have no effect, against his mortgage duly recorded, that the statute is invoked; and this, court will pronounce, I trust, that it shall not have any effect against him, as the statute directs. But it is said, that the great error of the counsel of Morrison is in considering him a third party. Certainly, there cannot be a greater error, than to consider Morrison as one of the parties to the deed; who alone by the provisions of the statute are to be bound by it. The statute protects all persons but parties; and whoever was not a party to the deed, must be considered as included under the denomination of "third persons." The creditors, both of Trudeau and of Smith, have a right, as third persons, to urge the provisions of the statute, so far as the notarial act of sale might have any effect against them. The counsel of the heirs of Trudeau, admit that their creditors might do so; and I think it too plain, to need further argument, that the creditors of Smith have the same right; for both classes of such creditors must, be considered, as regards the contracting parties, third persons.
    The counsel for the plaintiffs, however, insists that all privileges and legal mortgages have their effect against third persons, without any necessity of being recorded, according to the provisions of the Civil Code, 465, art. 54. If such was the law, it has been repealed. First, by the act of 1810, already cited, so far as privileges are created or exist by notarial acts, which are to have no effect against third acts, which are to have no effect against third persons unless recorded; and, secondly, by the act of 1813, 1 Martin's Dig. 700, which begins by enacting that all securities; sales of lands, or slaves made by public officers; all marriage contracts; all final judgments and awards, shall be recorded within ten days, &c. in the office of the parish judge of the parish where they are to effect lands or slaves; and concludes in the following words; "and all sureties, sales, contracts, judgments, sentences or decrees aforesaid, and all liens of any nature whatever, having the effect of a legal mortgage, which shall not be recorded agreeably to the provisions of this act, shall be utterly null and void to all intents and purposes, except between the parties thereto."
    My reasons for maintaining that this part of the Code was in part repealed by the act of 1810, have already been given. If any doubt could remain with respect to the intentions of the legislative act of that year, the subsequent act of 1813 has most assuredly rendered the subject perfectly clear. Privileges and legal mortgages by the ancient laws of the country, existed to so great an extent as to render the purchase of real estate and slaves in a high degree hazardous; and against the secret privileges and tacit mortgages,which might exist thereon, no diligence or foresight could provide for the security of the purchaser against all molestation. The evils attendant on such a state of things had long been felt and deplored by the community; the act of 1810 remedied but a small portion of the evils existing; and in order to effectually and adequately put an end to them, the legislature enacted the statute of 1813, which requires all liens of any nature whatever, having the effect of a legal mortgage, to be recorded in order to give them any validity against third persons.
    But the counsel for the plaintiffs contends, that the act of 1813, has not impaired their lien of vendors; and that such lien or privilege was not intended to be embraced by its provisions. His argument is founded on the definition of the word mortgage, found in our Code; and on the distinction which he thinks there is between a legal mortgage and the privilege of the vendor. That he has taken an erroneous view of this part of the subject, I propose next to show; and to satisfy the court that, as well by the act of 1813 as by that of 1810, the privilege of the vendor of real estate is lost, as regards third persons, if not recorded. The whole argument rests upon showing that the privilege of a vendor of real estate is something not included in the terms. "a legal mortgage;" for if such privilege is nothing in effect but a legal mortgage; if it is a lien having the effect of a legal mortgage, the statute requires it to be recorded, to have any validity against third persons.
    We are first referred to the definition of a mortgage in the Civ. Code, 453,art. 1. “The mortgage is a contract by which a person affects the whole of his property, or only some part of it, in favour of another, for security of an engagement, but without divesting himself of the possession thereof.”
    Nothing, certainly, can be more unfortunate than this definition. Instead of the definition of a genus, it gives that of a species; it is but the description of a conventional mortgage, when it should have included the other two species, legal and judicial. Omnis difinitio in jure civili, periculosa est; rarum est enim, ut non sub-verti possit. Dig. 50, 17, 202. Nothing, therefore, favourable to the argument of the counsel for the plaintiffs, can be deduced from such definition. Without regarding then this oversight in our legislators, let us examine into the division and classification which they have made of mortgages.
    We are informed (Civ. Code, 653, art. 4) that there are three sorts of mortgages:
    1. The conventional,
    
      2. The judicial, and
    3. The legal or tacit.
    Again, it is stated (idem, 457, art. 29) that under another view, mortgages may be divided into.
    1. The simple mortgage, and
    2. The privileged mortgage.
    But furthermore, we learn (ibid. art. 30) that mortgages may be divided into,
    1. The general mortgage, and
    2. The special mortgage.
    Now it is evident that all mortgages, of every nature or sort whatsoever, must be either general or special; that is, must effect some one particular or special immoveable; or, in general, all the immoveables of the debtor. The terms general and special, therefore, include all sorts of mortgages.
    It is equally evident, I think, and undeniable that every mortgage of whatsoever nature or sort, must be either a simple or a privileged mortgage. The four terms, therefore, general, special, simple, and privileged, are merely descriptive of the nature or effects of the different sorts of mortgages: which are three, the conventional, the judicial, and the legal. This distribution and division of mortgages is that of Domat, l. 3, tit. 1. § 2, from whom it would seem the framers of the Code intended to borrow it. There are, then, but three sorts of mortgages known to our Code; and under some one of the three, every mortgage may be classed, whether it is general or special, simple or privileged; which words are solely intended to mark the qualities that may attach to them.
    Now the privileged mortgage, or as it is otherwise called the privilege of the vendor. Civ. Code, 457, art. 29, cannot be ranked either among the conventional or the judicial mortgages.—There is but one other class of mortgages in which it can be placed; the legal: and to that it evidently belongs.
    "A legal mortgage (according to the definition of our Civ. Code, 454, art. 15) is that which proceeds from the law, without any express covenant of the parties; but which is, notwithstanding, grounded on a tacit consent, which the law presumes to have been given by him on whose property it grants this mortgage; therefore it is also called,in law,a tacit mortgage.” This definition is as correct a description of the privileged mortgage, or privilege of the vendor, as language can give. The Code then proceeds to give various examples of the legal mortgage; but after enumerating many, cautious us against supposing that they are all. "To the divers sorts of legal mortgages mentioned in this title, must be added those which may have been omitted in the above enumeration, and which may have been established in other parts of the present Code."
    
    It is worthy, however, of very particular remark, that among the number of legal mortgages enumerated directly following the definition of a legal mortgage, the framers of the Code, 457, art. 23, have placed an example of the privilege of the vendor of real estate. “ Co-heirs have a legal or tacit mortgage on the property which has been the object of partition, from the day of that partition, for the warranty of their respective portions, as well as for the returns of money on the shares." For, on consideration of the nature of the contract of the partition among co-heirs, it is certain, that in the partition of real estate, they are mutually vendors and vendees; and therefore this tacit or legal mortgage is to secure the vendor his purchase-money. Such is the view taken of this mortgage by the civil law writers. Ferriere, Dictionnaire 
      de Droit, verbo Soulte. "Soulte, est une somme qui se paye en forme de supplément par un des copartageans a l'autre, pour faire par ce moyen que leurs lots soient égaux. Ainsi souvent dans un partage un immeuble est mis dans un lot, à la charge que celui auquel il échoira, sera obligé de recompenser les autres copartageans en argent, pour rendre toutes les portions égales.
    
    
      Ce terme vient de solvere; car c'est une espece de solution ou de payement qui se fait aux autres copartageans de la portion qu'ils pouvaient avoir dans un immeuble.
    
    
      Pour ce qui est du privilége de la soulte de parsage il est sur le total de l'heritage qui la doit; et non pas sur une partie sculement."
    
    9 Merlin, Répertoire de Jurisprudence, verbo Partage, 38; "Les biens composant le lot de chaque copartageant, sont hypothéqués par hypothèque privilégiée, à toutes les obligations qui dérivent du Partage, telles que sont le retour en deniers ou rentes dont ce lot est chargé. l'obligation de garantie envers les cohéritiers auxquels sont échus les autres lots, les rapports des sommes données ou prêtées à quelq'un des cohéritiers, et enfin toutes les prestations personnelles dont un héritier peut être tenu envers ses cohéritiers.
    
    “Cette hypothèque privilégiée doit produire son effet dans le cas même où le Partage a été fait sous 
      
      seing-prive." 10 Merlin, Répertoire de Jurisprudence, verbo Privilége de Créance, 13. "Le cohéritier réclamant sur les immeubles de la succession, une soulte ou la valeur des biens dont il a été évincé, doit être considéré comme un vendeur d'une portion des biens qui devaient composer son lot; et qu'ainsi, son Privilége, à cet égard, se confond el s'identific parfaitement avec celui du vendeur."
    
    See also, 15 Pandectes Francaises, 183. 1 Persil, Régime Hypothécaire, 185. Code Napoleon, n. 2103, § 3.
    But to return to the point which I have undertaken to establish; that the privilege of the vendor is included under the class of legal or tacit mortgages. This privilege is expressly termed a mortgage; Civ. Code, 457, art. 29; and the privilege of the vendor, used in the English text, is termed in the French, l'hupothèque du vendeur. In this point of view, the writers on jurisprudence have always regarded it; vain therefore is it for the counsel of the plaintiffs, to maintain that a privilege is something different from a mortgage.
    
      "L'hypothèque, est un réel sur une chose appartenante au débiteur, qui tend à assurer l'exécution de l'obligation, au moyen de la préférence qu'elle attribue au créancier nanti de ce droit, sur les autres créanciers.
    
    
      
      La preférénce a pour cause, ou la faveur due à la créance, ou la propriété, soit du contrat, soit de l'accomplissement des formes qui donnent à l'hypothèque son efficacité.
    
    
      Cette difference dans les causes caractérise deux genres d'hypothèques, dont l'um conserve le nom d'hypothèque, et l'autre prend celui de Privilége.
    
    
      Le Privilége n'est done, à proprement parler, qu'une hypotèque privilégiée.
    
    
      En effet, le Privilége est undroit accessoire à une créame, puisqu'il ne peut appartenir qu'a un crèancier. Le Privilége est un droit réel sur une chose et sur le prix provenant de la vente de cette même chose. Ce droit réel affecte la chose engagée, de manière qu'il la suit dans les mains de tout possesseur, du moins lorsqu'elle est immobilière.
    
    
      Tous ces avantages sont communs à l'hypothèque et au Privilége: leur caractère distinctif consiste en ce que les hypothèques prennent leur rang de la priorité de l'inscription ou du titre, au lieu que le Privilége obtient la préférence sur toutes les créances hypothécaires, lors même que le titre serait postérieur en date." 10 Merlin, Répertoire de Jurisprudence,verbo Privilége de Créame, 7,
    The counsel for the plaintiffs, it is true, acknowledges, that the privilege of the vendor is a mortgage: but maintains that it is not included in he three sorts of mortgages, conventional, judicial and legal, into which the Code has divided all mortgages: and, in order to show that there must be a fourth sort of mortgage, he refers us to a definition, or quality, which he supposes will attach to all legal mortgages; i. e. that a legal or tacit mortgage affects all the estate of the debtor against whom it exists. But this is not true; certainly as it regards some of the tacit or legal mortgages mentioned by the Code, particularly as to that of co-heirs, Civ. Code. 457, art. 23, for the reasons already adduced by me, to prove that such legal or tacit mortgage is, in fact, nothing more than the privilege of the vendor of real estate. The argument then attempted to he drawn from this source by the counsel of the plaintiffs, must be considered as without foundation. And in contradiction to him, I. may boldly assert, that the lien of the vendor of real estate and that of a co-heir, are not, distinct m their nature and character, but perfectly analogous, if not identical; though the one is termed a privileged mortgage, and the other a tacit or legal mortgage.
    All the distinctions and definitions by which it has been attempted to prove that there are more than three sorts of mortgages known to our laws, having been shown to be unavailing: it must necessarily follow, that the title of mortgage created by an act of sale, must be ranked among legal or tacit mortgages.
    To the instance already adduced from the Civil Code, of a vendor’s privilege being termed a tacit or legal mortgage, another may be added from the Spanish law, which is still in full force; that of a minor on his real estate sold. 1 Sala, 385. Part. 5, 13, 25. Several other instances of what are termed in the Civil Code, privileges, or privileged mortgages, being denominated in the Spanish law,tacit mortgages, may be found in the Curia Philipica, 364, Hypoteca, n. 31, 32, 33 and 34. And in Ferrari's Bibliotheca, verbo Hypotheca, n. 1, 20.
    
    It must appear then most satisfactorily, I apprehend, that the term legal mortgage, agreeably to the definition and use which is made of it in the Civil Code, and by the writers on the Spanish law, embraces mortgages which affect only a particular immoveable; and it should not be restricted to mortgages only, which affect the whole real estate.
    We now, then, naturally arrive at the main part of the controversy. What mortgages did the legislature mean to include under all liens of any nature whatever, having the effect of' a legal mortgage?” Not those only specified in the title of the Civil Code, which treats of legal mortgages; for we are told, Civ. Code, 456, art. 26, that some may have been omitted in the numeration there made; and therefore, all which may have been established in other parts of the Code are to be added. But to these, we must add, such as existed and were established by the Spanish law; for they were never repealed. We then may safely assert, that all legal or tacit mortgages established in any part of the Civil Code, or known to the Spanish law, were in the view of the legislature; and that it was intended to make them all "utterly null and void to all intents and purposes, except between the parties thereto," if not recorded agreeably to the provisions of the act of 1813.
    It is not barely legal mortgages, whether established by the Civil Code, or the Spanish Jurisprudence, that are declared to be null it not recorded; but every “lien of any nature whatever, having the effect of a legal mortgage.” Legal mortgages, technically so termed, must be recorded; all liens also, which have the same effect. The term lien, is familiar to the common law; and in its most usual acceptation signifies an obligation, tie, or claim annexed to, attaching upon, any property; without satisfying which, such property cannot be demanded by its owner; droit de retention. In which acceptation of the word, the property is supposed to be in the possession of the creditor, holding it from the debtor, until the lien shall be discharged. In this sense, it is evident it was not intended to be used by our legislature, as the property to be affected is supposed to be in the possession of the debtor.
    The lien of the vendor of land for the purchase-money, is well known to the common law; Sugden's law of vendors, c. xii. 7 Wilson's Bac. Abridg. 147. And has the same effect as our legal or tacit mortgage, so far, as regards the land sold; and corresponds precisely, with one of the legal or tacit mortgages specified in our Civil Code, 457, art. 23.
    That the privilege of the vendor of real estate may properly be termed a lien, is apparent from the interpretation given to the term in the common law books. “Lien, is a word used in the law, of two significations: personal lien, such as bond, covenant or contract; and real lien, as judgment, statute, recognisance, which oblige and affect the land. Terms de Ley"—Jacob's law Dictionary, verbo Lien. Such liens as these then, "which proceed from the law without any express covenant of the parties; but which is, notwithstanding, grounded on a tacit consent, which the law presumes to have been given by him, on whose property it grants this mortgage" (Civ. Code. 454. art. 15) or lien, were contemplated to be embraced by our legislature under the expressions, “all liens of any nature whatever, having the effect of a legal mortgage.” Two cases, in which the vendors of real estate hold this mortgage, have been adduced by me; one from the Civ. Code, 457, art. 23, that of co-heirs; and one from the Spanish law, 1 Sala, 385, that of a minor, for the purchase-money of his real estate when sold.
    From this view of the subject, I think it appears evident, that the legislature intended to make it imperative, on the vendor of real estate, to record the act which creates his privilege or lieu, to render it valid against third persons.
    A docket for the purpose of recording "acts 
      
      of sale, donations, judgments, or other titles of mortgages” has always been kept by the register of mortgages, both under the Spanish and American governments. See Civil Code, 467, art. 62. Novisima Recopilacion, l. 10, tit. 16, Ll. 1-3. And under both governments it was required that creditors, who have a privilege or a mortgage on immoveable property, should register their titles in the cases, and in the manner directed by law, in order to pursue their claim against the property in the hands of third persons. Civil Code, 460, art. 41. Nov. Recopilacion, ibid. All prudent and diligent persons, enregistered with the recorder the titles which gave them a privilege or a mortgage; particularly the vendors of real estate, as we may safely infer from the fact, that no such controversy as the present has heretofore arisen before our courts.
    The interpretation which I have given to our statutes, in the above view of the vendor’s privilege, brings back our jurisprudence to the same principles that existed under the Spanish law; which, in my opinion, should be considered as a corroborant argument, in favour of the intentions that I have maintained the legislature had in enacting the institutes 1810 and 1813. As a general principle of the Spanish law, the vendor of real estate held no lien or privilege on it, when sold on credit, except where a mortgagewas expressly reserved and duly recorded.
    “Si al fiado fue vendida la cosa, no se tiene en ella ni en su precio la prelacion del dominio por la deuda de su precio, despues de la tradicion. 6 posesion, por transferirse por ella el dominio en el comprador, y mediante el derecho en sus acreedores, segun una ley de Partida, y unos textos del derecho civil, y lo tienen Bartulo, Baldo, Angelo, y Alexandro, y comunmente los Doctores. Y en duda, entregandose la cosa vendida al comprador, es visto haber fé de precio, ó ser al fiado, sino es que el vendedor pensase que luego se le habia de pagar, como lo dice Gregorio Lopez." Curia Philipica, 415. Prelacion, n. 8.—“If any thing has been sold on credit, the vendor has no privilege on it for the purchase-money, after a delivery of the possession; because thereby the dominion over the thing was transferred to the purchaser, and by law to his creditors; according to a law of the Partidas; several texts of the Roman civil law; the opinions of Bartulus, Baldus, Angelus, Alexander, and generally of the learned. The delivery of possession, in a doubtful case, would be considered as proof of a sale on credit, unless it was understood that payment was to be made immediately." See Part. 3, 28, 46. Febrero, part 2. l. 3, c. 3, § 2, n. 186, 7. Salgado, in Labyrinth. Credit, part 1. c. 14, n. 78. Nov. Recop. l. 10, 16, 1-3. Pothier, Contrat de Vente, n. 318, 322, 3.
    How far the counsel of the plaintiffs is supported, in considering the privilege of the vendor of real estate of the most sacred character, may he easily inferred, after a consideration of the above cited authorities. No such privilege,as he contends for, was known to the laws of Spain or Rome; and if this novel privilege was introduced into our jurisprudence by the Civil Code, it was repealed by the statutes of 1810 and 1813. No one instance of enforcing such a privilege, can be produced from the records of our courts, and I trust there never will be.
    I have disposed of the principal obstacle raised against the validity of Morrison's mortgage I will now briefly answer the minor objections, which have been made to it.
    It is said, that no mortgage is expressly the act of writing made between the parties; and that the sum for which the mortgage is supposed to be made, is not certain and explicit. From the proof, in the statement of facts which comes up with the record, it is shown that apt and legal words are used in the instrument for constituting a mortgage, agreeably to the manner of forming such contract in the state where it was made. The intentions of the parties is very manifest from the words which they have used: and they were no more bound to use any technical expressions and phrases, than they were to confine themselves to a particular language. The words of the English language, which the parties have used, admit of no doubt in the mind of any one acquainted with it, as to the meaning of the contract which they intended to form. Equally clear is the writing, in showing that a sum certain and explicit, was agreed upon as to the amount of the mortgage; which was stipulated to secure the payment of a promissory note of § 15,000, given by Smith to Morrison, for which, when paid, Morrison was to account for, in the manner stated in the contract.
    In short, the contract is precisely such an one as has been recognised as valid by the decisions of this court; Bacon vs. Phelan, 4 Mart. 88. Le Fevre vs. Boniquet's Syndics, 5 Mart. 481: it was recorded before any other mortgage in the office of the parish judge, of the parish where the land is situated; and therefore, it should be paid, in priority to every other claim, out of the proceeds of the plantation of the insolvent.
    
      Hawkins, for the claimant Morrison.
    On the 8th day of October, 1816, Trudeau conveyed to John Kelty Smith, the land and slaves, the proceeds of the sale of which, is involved in the present controversy.
    The deed of sale was executed before the judge of the parish of St. James, the land and slaves sold and conveyed being situate in the parish of St. Charles.
    The deed, from Trudeau to Smith, was not recorded in the parish where the property is situate until the 17th March, 1821, several years after its execution, and not then legally admitted to record, wanting the order of the judge for that purpose.
    Upon examining this act of sale, it is found in the usual form, vesting complete title in the vendee Smith; and stipulating (as is uniformly done in Louisiana, where it is contemplated to give a lien on the property sold) on the face of the same deed, a mortgage on the estate in favour of the vendor Trudeau.
    The purchase-money agreed to be paid by Smith, was $125,000, 25,000 in cash, and the residue in annual instalments of 25,000 dollars.
    Two instalments ($50,000) were paid by Smith. In the month of March, 1821, Smith became insolvent, and failed to pay two of the remaining instalments.
    After Smith’s insolvency, but before the last instalment became due, Trudeau obtained an order of seizure and sale, under his mortgage stipulated in the deed to Smith; and at the sale, caused at his own instance, Trudeau became the purchaser at the price of $80,000, of the same plantation and same slaves, which he had sold Smith for $125,000.
    Trudeau has refused to pay over any portion of the purchase-money, claiming to retain the same in his hands, to the exclusion of all other creditors, upon the ground of his privilege as vendor.
    James Morrison, one of the creditors of John K. Smith, has interposed a claim for $15,000, and interest for several years; and which he claim to he paid (out of the proceeds of the sale of Smith’s plantation, so purchased by Trudeau,) as a creditor of the first rank. His claim is based on a conventional mortgage and judgment, relative to which the record exhibits the following facts.
    More than two years previous to Smith’s failure, Morrison having obtained a judgment against him in the state of Kentucky for upwards of $45,000, with the view to secure the payment of $15,000 of this judgment, Smith, on the 23d June, 1819, executed to Morrison the conventional mortgage made part of the record.
    On the 15th May, 1820, Morrison’s mortgage was duly recorded by order of the district judge in the parish of St. Charles, where the mortgage property is situate, it being on the same plantation and slaves sold by Trudeau to Smith.
    
      Morrison also prosecuted his claim on this mortgage to judgment, against the syndic of the estate of John K. Smith, in New-Orleans.
    His mortgage was also recorded in the mortgage-office at New-Orleans, prior to its being recorded in the parish where the property is situate.
    At the date of the mortgage executed by Smith to Morrison, the latter had obtained the judgment for $45,000, and which judgment was afterwards confirmed by the supreme court of the state of Kentucky, as appears by the decree of that tribunal, also made part of the record before this court.
    At the date of the sale of Smith’s plantation, when Trudeau became the purchaser, Morrison’s was the only mortgage recorded in the parish where the property was situate, and was so certified by the recorder of mortgages for that parish.
    Shall Trudeau retain the whole purchase-money bid by him for Smith’s plantation and slaves, upon the ground of his privilege as vendor? Or, shall he be decreed to pay Morrison $15,000, with interest and costs, upon the ground that Morrison’s conventional mortgage, recorded in the manner pointed out by law, secures priority of payment?
    Pursuing the order marked out by the opposing counsel, I will examine, first, the nature of the vendor's privilege upon the real estate and slave; and then the validity of the conventional mortgage relied on to support the claim of Morrison.
    I. As to the nature and effect of the vendor’s privilege. In Louisiana, as far back as precedent furnishes a guide, it has been customary where the vendor was disposed to retain a lien on the estate sold, in the same instrument, by which he passes the title, to stipulate a mortgage for the purchase-money remaining unpaid. This mode of proceeding is peculiar to ourselves. For in our sister states, the usage has been, first to pass by one instrument, title to the vendee; and then by a separated deed, executed by the vendee, mortgage and hypothecate the estate to the vendor.
    The deed from Trudeau to Smith is such as was usual, and contains alike the clauses of sale, enfeoffment and warranty of title, vesting it fully and to every legal intent in Smith. Nor do the subsequent clauses of hypothecation in the same deed at all weaken the validity of the the title vested in Smith. Accompanied, as it was, by delivery, it was as perfect as one laws could make it.
    In treating of the property in the thing sold, it is declared. "If a man deliver a thing into the possession of one to whom he had sold it, and the buyer had not paid the price, nor given any security, or pledge, nor stipulated any term for payment, the property in the thing sold will not pass to the buyer, until he had paid the price therefor. But if he had given any security or pledge for the payment of the price—or had stipulated a term therefor, or if the seller had trusted to him for the payment of it—then the property in the thing will pass by delivery, notwithstanding the price has not been paid, and the purchaser will remain bound to pay for it thereafter."—Partida, 3, tit. 28, l. 46, Moreau and Carlton's translation.
    
    Thus we find our laws recognising, in its fullest extent, the validity of the title passed from Trudeau to Smith.
    If this law be sound, then Smith had the right to mortgage, sell, or dispose of this estate to third persons in any manner he thought proper. And the title by which he acquired this estate, is just such as are in daily use, with which our citizen are most familiar, and the nature and effects of which they most distinctly comprehend.
    No right or title can be vested in real estate or slaves, but by writing. Civil Code, 310, art. 241. No mortgage, verbally stipulated, is good, nor can one he created but by writing. Civil Code, 452, art. 5. These laws were known and familiar to the proprietors of estates, at the date of Trudeau’s sale to Smith. They seem to have recognised the force of these principles, and hence, you find their deed of sale drawn in the usual form, vesting title in Smith, and "hypothecating and mortgaging" the estate sold for the purchase-money.
    All these, however, say the able counsel of Trudeau, were acts of supererogation; that the hypothecary clauses, by which Trudeau obtained a mortgage, were nullities; and that neither the contracting parties, nor the judge drawing the notarial act, understood their rights, or their duties—nor did the vendor need the clauses of mortgage in his deed to Smith.
    It is not surprising that this ground is taken, for, only let this deed from Trudeau to Smith be deemed, what the parties knew and stipulated it was, a deed of conveyance, with mortgage upon the estate sold, to secure the purchase-money, and there is no longer any ground for controversy. For the counsel for Trudeau has had the candour to admit, that, if their deed be a mortgage, as relates to the vendor, his rights are gone; for he has failed to place his mortgage on the records of the parish, necessary to its validity, as regards third persons.
    But let us deem the stipulations of mortgage in this deed, as mere surplusage; and then test it by the principles of law already quoted, will it support the doctrine of privilege contended for by Trudeau’s counsel?
    It has been already shown, by authority from the Partida, if the purchaser give any security or pledge for the payment of the price, or stipulate a term therefor, or if the seller trusts for the payment, then the property in the thing passes by delivery, notwithstanding the price has not been paid. Suppose the deed from Trudeau to Smith was an ordinary deed of conveyance, without stipulations of mortgage, and stating, “that for and in consideration of $125,000, secured to the vendor by the six promissory notes of the vendee, payable in yearly instalments; would the vendor still have retained his lien, by way of privilege, against subsequent purchaser or mortgagees?
    If this doctrine were to prevail, it not only prostrates the authority of the Partida, but involves an absurdity, in requiring of purchasers of property impossibilities.
    To whom must subsequent purchasers look for information, as to whether the purchase-money, for an estate sold on credit, has been paid ?
    
      He can look alone to the possessor of the estate with whom he contracts; and if he be a corrupt man, by exhibiting feigned vouchers of payment, or collusion with his vendor, he may receive the full value of an estate from an innocent third purchaser, and then wrest the property from him, upon the ground that the original purchase-money had not been paid the prior possessor and vendor.
    
    It was to prevent frauds like these, that our legislature have required, all liens to be recorded where the property is situate.
    How often is it the case, that the original vendors of property, sold on credit, reside in foreign countries. Adopt the principles contended for by the opposite counsel, and no man would be sale in purchasing property, once sold on credit, until he had pursued all former vendors, whatever be their distance or place of abode, to ascertain if they had been paid the purchase-money, stipulated for. It was to obviate evils like this, that our legislature have declared, that all liens, not recorded in due time where the property is situate, shall be void as to third persons.
    Let us follow the opposite counsel back to the Civil Code, and it is not believed, be has there found for his client, a shelter free from difficulty, or one entirely satisfactory to his own vigilant and discriminating mind. He protests against the deed, of his client to Smith, having secured the benefit of a
    1st. Conventional mortgage.
    It is not pretended that it is a
    2d. Judicial mortgage.
    Nor will he permit it to be considered a
    3d. Legal or tacit mortgage.
    Our Code proceeds, under another view, to the divisions of simple mortgage and privilege mortgage, general mortgage and special mortgage ; and the opposite counsel is equally unwilling to permit his clients’ stipulations of mortgage in the deed to Smith, to give it the character of either simple mortgage, privilege mortgage, special mortgage, or general mortgage.
    For, although in one part of the argument he seeing In consider the privilege of the vendor, and privilege mortgage as convertible, and they are, by the Civil Code, made one and the same thing; yet finally, he takes the only position which even furnishes argument, and declares, “we contend that we have a privilege. Our lien on the land is prior to all mortgages, whatever be their date.”
    
    It was found necessary to take from this instrument (and this too in despite of its covenants) every feature which would give it the character of even a privileged mortgage; notwithstanding the Code (p. 456, art. 29,) says “the privileged mortgage, or as it is otherwise called, the privilege, is that which derives from a privileged cause, which gives a preference over the creditors who have only a simple mortgage, though of a prior date.
    “ Such is the privilege of the vendor, who has the preference over every other creditor, for his payment, on the real property he has sold.”
    Were we confined, in our views of this subject, to the Civil Code alone, it would be difficult to discover the ground of this solicitude to take from the writing, on which the plaintiff relies to support his claim, even the character of a privilege mortgage. But the difficulty is removed, the moment we turn our attention to the statute of 1810, passed two years after the adoption of the Code, where it is declared—
    "No instrument, stipulating a mortgage, shall have any effect against third persons, except from the day on which the same shall have been recorded in the office of the judge of the parish, where the hypothecated property is situated." 3 Martin’s Dig. 138, § 4.
    It has not been contended, that the privilege of the vendor cannot be stipulated in the act of sale. On the contrary, the counsel for the plaintiff has acknowledged that, “It is a privilege which must appear manifest on the act of sale itself. If the seller acknowledge, in the act, that he has received the price in the presence of the notary, or out of it, with the proper renunciation of the exception of non numeratas pecunise then there is an end of the vendor's privilege.”
    Let us strike out of the deed from Trudeau to Smith, all the stipulations of mortgage and hypothecation, or rather, to meet the views of the opposite counsel, let them be converted into mere stipulations of the vendor's privilege—the privilege of the vendor being declared by the Civil Code to be nothing more nor less than the privilege mortgage; and subsequent statute (1810) having declared, that no instrument stipulating a mortgage shall have any effect against third persons, except from the day on which the same shall have been recorded in the office of the judge of the the parish where the hypothecated property is situated, it appears to my mind, that the counsel for Trudeau has but one possible alternative to escape the imperitive operation of this statute—and that is, by proving to the court, that a privileged mortgage is no mortgage at all.
    
    We have shown by the provisions of our Code, that title to land and slaves cannot pass without writing—that no mortgage can be created but by writing—that the privilege of the vendor is nothing more nor less than the privilege mortgage.
    
    Our adversary has shown, that the privilege of the vendor must be expressly stipulated on the face of the deed, or there is an end of the privilege. To stipulate it, gives it at once the character of a privilege mortgage, and then the statute of 1810 embraces all instruments stipulating a mortgage.
    
    It is in vain to say, that the legislature did not contemplate including the vendor's privilege, because the Civil Code was then before them, and they saw that this privilege was, in fact, the privilege mortgage; and it was one of the cases contemplated, and expressly embraced, by that act.
    If any doubt remained, it would be removed by a subsequent section of the same statute, which declares, “No notarial act, concerning immoveable property, shall have any effect against third persons, until the same shall have been recorded in the office of the judge of the parish where the immoveable property is situated.” 3 Martin's Dig. 140, § 7.
    This little section imposes on the counsel of the plaintiff, not only the task of establishing the deed from Trudeau to Smith to contain no stipulations of mortgage, but he must also show, that it is not a notarial act, and that it does not concern immoveable property.
    Upon this subject our legislative body were influenced by the dictates of common sense, and have exercised that soundness of judgment calculated to put down all controversy, and to remove all doubt as regarded the recording of instruments controversy, and to remove all doubt as regarded the recording of instruments affecting real estate. They saw the Civil Code crowded with privileges of various kinds—they saw too, perhaps, what the opposite counsel acknowledges to have existed, some confusion in the Civil Code, as to the several mortgages; and, after first speaking of all instruments stipulating a mortgage, they then engraft a section, declaring, “ that no notarial act concerning immoveable property,” &c. The word “ concerning,” here employed by the legislature, gained in comprehensiveness, though it lost in technicality; evidently intending, and actually embracing every description of writing which could, in any wise, affect real estate.
    Were it not for the seeming importance which the plaintiffs have managed to give this cause, the counsel for Morrison might be permitted to rest the argument here, relying upon the positive provisions of a statute for protection of his rights. We are told, however, that this statute does not embrace instruments stipulating a lien or privilege in favour of the vendor.
    This view of the subject might well have been anticipated, for nothing is more natural to counsel, in a bad cause, than to meet the force of authority, by protesting against its applicability.
    Let us see if the interests of our client will not find additional protection, from a second statute.
    The value of all laws and systems, can alone be tested by their application to the practical operations of society.
    However admirable our system, as regards mortgages and privileges, it was not only competent, but the duty of the legislative body, to prescribe the performance of certain duties to those claiming the benefit of either. They have done so ; and in the construction of these statutes, we need only resort to the well established rules of interpretation, and inquire—What was the evil contemplated to be remedied? What was the new duty required to be performed?
    
    Prior to the statute of 1810, the evil was, the door opened to fraud in keeping secreted from public inspection liens on real estate and slaves. Without altering the nature of the lien—without taking from it, its full force as between the contracting parties, the legislature simply imposed the duty of causing the instrument stipulating the lien to be recorded where the property was situated, to give it any validity as regards third persons: and they supposed, at the moment, they had gone far enough. But between the year 1810 and year 1813, new difficulties arose—new evils presented themselves. It was, in fact, only about that period that the abstract principles of the Civil Code, began to be tested by experience, and the adjudications of the supreme court.
    What were the evils which the legislature of 1813 was called on to remedy? They arose in permitting a long list of liens, arising from legal or tacit mortgages and priviliges, (having their existence only in the private contracts of the parties, and the discharge of duties in the administration of estates, &c.) to operate upon property, to the prejudice of third persons, who had no knowledge of the existence of these liens.
    
    No unbiassed mind can read this latter statute without, at once, coming to the conclusion, that the legislature contemplated to embrace, and, in fact, has embraced, every possible case in which real estate and slaves can be affected by liens of any description whatever.
    They first begin with a special enumeration of cases, and say—
    
      1st. All securities to be furnished by tutors.
    
      2d. Administrators of estates.
    
    
      3d. Curators,
    
    
      4th. Executors,
    
      5th. Guardians,
    
    
      6th. Officers of the government.
    
    
      7th. By persons employed in public service.
    
    
      8th. All sales of slaves or lands by sheriffs.
    
    
      9th. All marriage contracts,
    
      10th. All final judgments,
    
    
      11th. All awards confirmed by judgment.
    
    
      12th. All marriage, contracts made out of the state, where the parties move here to reside, “ shall be recorded,” &c.
    
    Where lands or slaves are affected, the recording to be in the "parish where they are situated."
    
    "And all sureties, sales, contracts, judgments, sentences or decrees aforesaid, and all liens of any nature whatever, having the effect of a legal mortgage, which shall not be recorded agreeably to the provisions of this act, shall be utterly null and void, to all intents and purposes, except between the parties thereto." 3 Mart. Dig. 700.
    We are told, however, that this statute is a mere nullity—that it has no application—that the liens embraced by it, are liens having the effect of a legal mortgage, and that the plaintiffs’ is no legal mortgage, but purely a privilege. And by way of repealing authority, we are carried back five years, to the following article in the Civil Code:—
    
      "Privileges on moveables as well as immoveables, and legal mortgages, have their effect even against third persons, without any necessity of being recorded." Code, 464, art. 54.
    
    There is but one way in which the plaintiffs’ counsel can avoid the force of this statute, and that is, by establishing to the satisfaction of the court, that his privilege is no lien; for if his privilege be a lien, then, to use his own forcible language, the “ rights of the vendor are gone.”
    It is not a very pleasant task to pursue a discussion into the mazes of technical refinement, but it must in this case be done, if from no other consideration, than that of respect to the talents so gravely employed in leading on the discussion.
    
      There is a distinction between liens and privileges. All liens cannot be reduced to the head of privilege. But it is difficult to conceive of a privilege affecting real estate, that would not be considered a lien. Few words are employed, even by lawyers, so comprehensive in their nature, as that of lien. "It is a word used in law of two significations; personal lien, such as bond, covenant, or contract; and real lien, a judgment, statute, or recognisance, which affect the land." Terms de ley.
    
    It signifies an obligation, tie or claim, annexed to, or attaching upon any property. Jacob’s Law Dict. tit. Lien.
    
    A lien then is produced by bond, covenant or contract, by judgment, statute or recognisance.
    
    The costs of an attorney are a lien upon the deeds or papers in his hands, (and their liens naturally present themselves as the first in order.) The factor has a lien upon the goods in his hands, for any balance due him from his principal. The common carrier has a lien for his charges. In Louisiana, parish judges have a lien upon the estate in their hands, for all fees, charges, &c. It would occupy unnecessary time to enumerate all on specific liens. The whole list of mortgages and privileges, known to our law, are considered liens, and so treated in the Code.
    
    In the very definition of mortgage, (Code, 452, art. 2,) they are spoken of as producing a lien on the things subjected to their operation.
    That privileges are considered liens, the opposite counsel has relieved us from the necessity of supporting by any other than his own authority ; for he has told us, in the commencement of his argument, “The right of the seller of immoveable property, to his lien upon it for the price unpaid, can hardly be taken away or impaired, without violating the principle of property itself.”
    And again, in the same page, he repeats, “The vendor’s privilege, on the thing sold, is not one of those liens which requires to be recorded in order to be preserved.”
    Still keeping in view the true character of his privilege, he adds, “Our lien, on the one hand, is prior to all mortgages, whatever might be their date.”
    Had the learned counsel been a member of the legislative body, in the year 1813, he would, no doubt, have been called on to pen the statute before us; and unless the views he now takes of the nature of privilege and lien be altogether unsound, he would have employed the very language of the statute. And upon reviewing and scrutinizing his labour, he would have had abundant cause of self gratulation in the comprehensiveness of the terms employed ; for he would have found no lien could escape their operation; no, not even a privileged lien.
    
    But, we are again met by another argument, in which we are told, that the privilege of the vendor is not embraced in this statute; because, after the words “and all liens of any nature whatever," the legislature have added the words “ having the effect of a legal mortgage."
    
    Now, although we have not urged that the privilege of the vendor is a legal mortgage, I think we may with great propriety urge, that the privilege of the vendor, is one of those liens, having the "effect of a legal mortgage."
    
    The Civil Code, art. 54, p. 464, before referred to, declares them to have precisely the same effect; which is, “ that both privileges and legal mortgages have their effect against third persons, without being recorded.” The opposite counsel will not complain this argument, because, if his lien has not the effect of a legal mortgage, it is not worth a straw. But we are urged to press the argument much further, and to come to the conclusion, that because the legislature speak of "All liens, of any nature whatever, having the effect of a legal mortgage" they therefore mean, none but liens given by legal mortgages; and the plaintiffs’ not being a lien by legal mortgage, but purely a lien by privilege; consequently, his lien is not embraced in the terms “ all liens of any nature whatever.”
    I leave my adversary in the full enjoyment of the benefits likely to flow from such premises, and such conclusions.
    We do not presume too much when we say, our client’s rights find full protection in the letter, as well as the spirit of the laws, to which we have adverted.
    The reason and policy of the law, and justice of the case, is also with us. No difficulty or confusion, could have arisen under the provisions of our Civil Code, but for the introduction of the 54th art. before referred to, giving effect to privileges and legal mortgages against, third persons, without requiring them to be recorded.
    It was a provision, which found its way into the Code without reflection as to its consequences, and evidently in contravention of several previous provisions. My colleague must have satisfied the court, that it was too, in derogation of the laws which existed previous to the adoption of the Code.
    
    In examining the provisions of the Code, as to the registry of mortgages, and several others, it was clearly the object of its framers, to require the recording of both privilege and mortgages, to affect the rights of third persons.
    I need only cite a single article under the head “of the effects of mortgages against the third possessor,” where it is declared, “That creditors, who have either a privilege or mortgage on immoveable property, or on slaves, may pursue their claim on them into whatever hands they may happen to pass, to be paid out of the proceeds in the order of collocation, agreeably to their privileges or mortgages, provided their titles have been registered in the cases and manner directed by law. Code, p. 460, art. 41.
    
      Is not this duty of recording, so as to affect the rights of third persons, founded on the soundest policy? Has it not received the sanction of all states with whose jurisprudence we are conversant?
    
    As to the evil arising from the doctrine for which we contend, there are none. The case now before the court is, perhaps, the only one that will arise; for, if any one has been so improvident as not to discharge a duty, so plainly pointed out by more than one statute, he has abundant security in now having his mortgages and liens recorded where the law directs. The importance of this case, therefore, is made to grow out of the wealth and influence of the family with whom we have to contend ; and never had a litigant so little cause of complaint.
    He sold a plantation to Smith for $125,000 —received fifty thousand dollars. In all probability, a considerable portion of the $45,000, advanced Smith by Morrison, was paid to Trudeau. When his subsequent instalments became due, that is, two of them, he seizes the estate, and under his own order of seizure and sale, becomes the purchaser—gets back the same plantation and slaves for the balance of purchase money due him—and pockets $50,000, clear gain from Smith—a sum, sufficient in itself, to cause his bankruptcy; leaving Smith's other creditors without a cent. And yet, the sympathies of the court have been appealed to, on account of the hardness of the plaintiffs' case. The court is earnestly urged to violate the provisions of two statutes; and to do so, by giving an interpretation to the stipulations of mortgage, in the face of the deed to Smith, in direct opposition to the evident meaning of the parties.
    If this instrument is no mortgage, how was it that Trudeau was so ready to seize and sell the estate, under the laws made for the benefit of mortgagees? It was a very good mortgage when he desired to sell the estate ; and a still better one when it enabled him, by the amount of his own claim, to put down all opposition in bidding, and obtain the estate for the balance due him. But it becomes no mortgage at all, when he is asked to pay Morrison’s debt, secured by mortgage; and that mortgage duly recorded, certified, and made known to Trudeau at the day of sale.
    
      But I do not impeach the sale. We only ask what the law will award; and that is, payment out of the proceeds of sale. Under what circumstances do we ask it?
    Morrison finds Smith enjoying a large sugar estate; and he had then enjoyed it upwards of two years after the sale to him by Trudeau. Smith assures him that the estate is free from incumbrance. In fact, he stipulates on the face of the mortgage to Morrison, that the estate is free from all incumbrances whatever. Morrison receives the deed, forwards it to his agent at New-Orleans, who, upon examination in the general mortgage office of this city, finds no lien or mortgage on the estate, as Smith had covenanted; and there causes Morrison’s mortgage to be recorded.
    Finding, however, the law requiring his mortgage to be recorded in the parish where the land and negroes were, to make it valid as regards third persons, the records are there examined; no mortgage or lien in favour of Trudeau or any one else, is found; under a second order of a judge, Morrison’s mortgage is again recorded; and he is now before this court, seeking only about one-fourth of the amount due him by Smith, with no hope of ever obtaining a dollar should his claim be rejected.
    I will say nothing as to the hardship of the case. Let it speak for itself. I will not weaken the force of the appeal.
    Our attention has been called to the provision of the Code which declares:—
    "They who have on the property which may be duly mortgaged, only a right either depending on a condition, or subject to be annulled or rescinded in certain cases, can only consent to a mortgage subject to the same conditions, or to the same rescission." Code, 452, art. 7.
    If this principle be applicable to the covenants, creating a mortgage in Trudeau’s deed, we have at hand a conclusive answer.
    The law, for wise and good purposes, has declared, that if you sell your estate, and retain liens on it by conditions in your deed of sale, you shall give notice to the community, of the conditions on which you have sold your estate, by spreading your deeds on the records of the parish where your property lies. In other words, that you shall not be accessory to gross frauds, by giving an apparent wealth to your vendee, in the possession and enjoyment of a large estate, and by which, at some distant day, you are, through the agency of secret liens and conditions, to ruin innocent and bona fide third purchasers. The very object of the law in requiring the recording of liens affecting real estates was, that subsequent purchasers and third persons might, by looking at the public offices of record, there see the conditions on which estates are held ; and then the force of the principle, from the Code just cited, would have its full effect. The article to which our attention is called, speaks too of "property which may be duly mortgaged," and no property can be duly mortgaged as regards third persons, without being duly recorded.
    
    Our adversary attaches a much more sacred character to his privilege, than the Code from whence he draws the doctrines that govern it. He speaks of it as being blended with the very principle of property itself.
    We find several instances, where the privilege of the vendor is lost, even though the property remain in the hands of the vendee.
    “When for want of moveables, the creditors who have a privilege (on real estate) demand to be paid out of the proceeds of the immoveables, in concurrence with the creditors who also have a privilege on said immoveables, the payments must be made in the following order:—1st. funeral charges ; 2d. law charges ; 3d. charges respecting medical attendance, physician, druggist, &c. ; 4th. the salaries of the person who lent their services during the last year, or what is due on the current year; 5th. the price of the subsistence furnished to a debtor, and to his family, during the last six months, by traders in retail, as bakers, butchers, and the like; and during the last year by tavern keepers and boarding house." Code, 468, art. 73, 470, art. 77.
    And then comes the privileges of the creditors, mentioned in the 75th art. of the Code, same page—to wit, the privilege of the vendor.
    
    Here you find a long list of claims, in some cases sufficient to exhaust the whole proceeds of sale of a plantation of inconsiderable value, actually preferred and paid, prior to the vendor of the same estate.
    And why is this done? For the reason already urged, that the possession of the estate gives those who hold it a credit with society, which the law will not permit to be abused.
    In treating of donations it is declared that, "where there is a donation of property susceplible of mortgage, a transcript of the act containing the donation, must be made within the time directed for the transcript of mortgages, in a separate folio book, &c.
    "The want of transcription, may be pleaded by all persons concerned; except those who were charged to cause the transcription, or their assigns, and the donor." Code, 222, art. 62—64.
    In treating of the duties imposed on beneficiary heirs, who claim with the benefit of inventory, the law provides, that, after the usual advertisements, if the heir pay even ordinary creditors, and there be an insufficiency of funds, privileged or mortgaged creditors, who have not presented their claims, lose the benefit of their liens; even though on the very estate sold, and out of which ordinary creditors have been paid. Code, p. 170, art. 113.
    And why is this inroad made upon what our adversary would deem, the sacredness of his privilege? Simply because the law requires, that he who claims by privilege, should within a given time exhibit his lien, and cause it to be enforced, or let other creditors controvert its legality; and having failed to do so, the law deems it a nullity. Is this law less binding? Is its reason, or the policy on which it is founded, less forcible, than the positive and repeated provisions of our statutes, requiring the recording of all notarial acts, mortgages, and liens affecting real estate, to give them validity against third persons?
    
    By adverting to the decisions of our supreme court, they will be found to sustain the principles for which we contend.
    The first, is that of Lafon vs. Sadler, 4. Mart. p. 476. There the lien supported was that of privilege, resting purely on the rights of the plaintiff as a builder. His lien was not created by writing. No writing was, in fact, necessary. The law created the lien when the work was performed ; and the court very properly decide, that expressing the terms of the contract in writing, or by notarial act, could not strengthen the privilege which already existed. But the chain of reasoning evidently shows, that if the lien in that case (as in this) had been created by writing, and that not recorded as, directed by law, the lien would have been void, as to third persons.
    This case was decided by the court in June, 1816. In the ensuing session we find that body again employed on this subject; and their principal object was to remedy the evil growing out of liens secured to builders of houses, ships. &c.; and they require, "That in all claims exceeding $500, no architech, undertaker, or other workman, shall enjoy with regard to a third party, any privilege or legal mortgage, on any immoveable properly, ship, vessel, or watercraft, on account of any work, furniture, building or repairs; unless they shall have entered into a written contract, and which shall be recorded by the recorder of mortgages, parish judge," &c. Sess. Acts, 1817, 122, § 7.
    Thus we find the legislature, from time to time, legislating with the express view of closing the door against the evils of which we complain.
    If it was sound policy to give the world notice of liens on buildings and ships, where the sum demanded only amounted to $500, by causing the lien to be recorded; how much stronger the reason for requiring the vendor to record his lien, where it is not unusual to give long credits, and where estates are frequently sold for sums amounting to princely fortunes?
    They have so legislated, and by as many as three distinct statutory provisions, all made in relation to real estate and slaves; and passed since the adoption of the Code.
    
    The section of the act of 1817, just referred to, shows most conclusively also, the intention of the legislature when speaking of legal mortgages and privileges.
    
    They were evidently deemed one and the same, and hence the use of the words. “No architect, undertaker or other workman, shall enjoy with regard to a third party, any privilege or legal mortgage on any immoveable property without recording,” &c.
    The case of Millaudon vs. New-Orleans Water Company, (11 Martin's Rep. 278.) comes next in order. There the privilege was claimed on a moveable, to wit, an engine, and enforced upon a provision of the Code, in regard to moveables, but in no wise whatever affecting the case now before the court.
    The next case is that of Jenkin’s vs. Wilson's Syndics, where the court are called onto decide the rights of the builder claiming a privilege. Not a non-recorded privilege; for the contract upon which his lien was founded had been recorded ; and that too, by order of a judge. But the omission was, that it had not been recorded within ten days.
    
    I cannot serve my client more essentially, than by using the strong illustration of his rights, furnished by this court in the case just referred to.
    “In Lafon vs. Sadler, 4 Martin, 476, (say the court,) we held that the notarial act was only the evidence of a fact, from which the plaintiffs’ privilege resulted ; in the present case, the writing is of the very essence of the appellees.”
    "Lafon having built Goodwin’s house, had ipso facto, by law a tacit lien, (and here too the supreme court deem privilege, just what the opposite counsel does,a lien.) His having reduced to writing the contract which fixed the manner in which the house was to be built, and the payment effected, did not create his right. Having a lien by law, and made a contract which did not modify his right, he was allowed to avail himself of his stronger title, that which resulted from the law.
    
      "Here the plaintiffs' lien," (it is unfortunate for the plaintiff that the court go so often hand in hand with the legislature in the application of lien, to what the plaintiffs counsel must have purely privilege, or his client will have nothing) “is not independent from the writing ; for the writing is the very essence of it. Here the writing is essential in the plaintiffs' recovery, and he defendant may resist its introduction, unless it has been recorded according to law." Jenkins vs. Wilson's Syndics, 11 Martin, 436—7. And the court decreed the writing null, solely upon the ground that it was not recorded within ten days. What additional authority does Morrison’s case require?
    It has been admitted by the opposite counsel, that Trudeau’s “privilege must appear manifest upon the act of sale itself.” If this be correct, and no rational mind can question it, then it is created” by the ad of sale; and consequently, in the language of this court, “ the plaintiffs’ lien is not independent from the writing; for the writing is of the very essence of it.”
    The lien of the builder was a privilege. The lien of the vendor, say the counsel, is a 
      privilege. The statutes require both to be in writing—both to be recorded. Shall the failure to record, as the law prescribes, be fatal to one, and yet furnish protection to the other?
    The second branch of the subject, the nature and validity of Morrison's mortgage, presents itself.
    It is a mortgage executed in the state of Kentucky, familiar to the laws of that state; and its execution duly authenticated conformably to the act of congress. Ingersol's Dig. 77.
    Neither the execution nor authentication of this instrument, however, have been controverted by the opposite counsel; but its effect is attempted to be shaken upon two grounds:
    1st. That it is a conditional or defeasible sale and no mortgage.
    2d. That it is uncertain as to the sum of money secured.
    That it is purely a mortgage, the whole nature of the transaction, as well as the instrument itself, conclusively shows. It is in the usual common law form, except as to conditions of re-entry, grown into disuse by the interposition of courts of equity; furnishing on the one hand, the equity of redemption; and on the other, the right of foreclosure by seizure and sale; both, features familiar to the laws of Louisiana. And we shall be aided on this subject by the fact, that there is no essential difference in the principles recognised by courts of equity in our sister states (as regards mortgages) and the courts of this state. The only difference is, that here the mortgagor remains in possession of the property mortgaged, whilst in other states, they not unfrequently surrender the use of the mortgaged property to the mortgagee, and especially when the security given is slender. President Pendleton has told us, that in Virginia, (where the system of jurisprudence is, the same with that of Kentucky,) “In recurring to the nature and principles of mortgage, they were borrowed from the Civil law” 1 Wash. Rep. 19; and for the nature of this mortgage, see Powel on Mortgages, and the precedent there given.
    There is a strong and marked distinction between a conditional or defeasible sale, and mortgage. In the former, an actual sale must take place; founded upon a consideration paid, (and this consideration must bear some proportion to the value of the estate sold, to escape the imputation of fraud) coupled with condition, that if the money be not repaid on a given day, then the right to become indefeasible.
    
    The mortgage, on the other hand, is a deed of conveyance, for the security of money, vesting the right and title in the mortgagee, but conditioned to he void upon the faithful payment of the money secured; and if the money be not paid, then the right of foreclosure attaches to the mortgagee, and the equity of redemption to the mortgagor.
    In examining instruments of both description, whatever be the peculiar language employed in the contract, the essential and governing rule of interpretation is, the real object of the contracting parties. 1 Call Rep. 280-7. 2 Call Rep. 429. 1 Hardin's Rep. 6. And a mortgage has ever been considered in the nature of a “security for money.” 1 Bibb.Rep. 528, The deed from Smith to Morrison, stipulates a mortgage, and must therefore be considered as a security for money.
    
    In adhering to the rule, that the “ true intention of the parties should govern such contracts,” the courts of sister states, as well as this tribunal, have adjudged deeds of sale without condition, and voting complete title, to take the rank only of mortgage securities and permitted the introduction of other testimony, to establish the object of the parties, in the execution of the writing. 1 Wash. Rep. Ross vs. Norvell, 14 ; Barron vs. Philan. 4 Mart. 88. Is there any thing in Morrison’s mortgage bearing the semblance of sale, defeasible or indefeasible? What, sell a large sugar estate and seventy slaves, purchased by Smith at the price of $125,000, to Morrison for the sum of $15,000! ! !
    According to the authorities just quoted, if the instrument had not stipulated a mortgage but had purported to convey perfect tide, this court would have decreed the title void, in favour of either Smith or his creditors, could it have been established by other testimony, that the positive sale was only intended as a security.
    
    Shall Morrison be in a worse condition by having in good faith obtained, what was contemplated to be given, a mortgage, stipulating the same as a security for his debt?
    But how is our adversary to be benefited by making this a defeasible deed ?
    It will greatly oblige Morrison to have it so considered; for Smith having failed to pay the $15,000, on the day appointed, the deed lost its defeasible character, and the estate became completely vested in Morrison; and, as the opposite counsel insists on it, we pray of this court to decree us the restoration and enjoyment of our property.
    As to the second objection, that Morrison’s mortgage is not sufficiently certain, the argument is answered by an attentive perusal of the instrument itself.
    The express sum secured is "fifteen thousand dollars;" it was not to be enlarged or diminished, nor was the sum secured in any way to depend on subsequent events. The subsequent stipulations in the mortgage, are altogether personal, as to Morrison. The $15,000 was to be paid on a given day ; and if not paid, the benefit of a foreclosure, by order of seizure and sale, at once attached to Morrison. No covenant is introduced affecting this sum, or the lien given to secure its payment. And that the payment was to be enforced through the lien, if Smith did not pay at the day fixed, is strengthened by the subsequent stipulation, that Morrison was to refund any amount received from Smith, should the surpreme court of Kentucky decree a less sum than the 15,000 dollars.
    How 111 could he refund 1 unless he had first received? And it was to secure the receipt, that the mortgage was given.
    If any doubt could be entertained on this subject, it is removed by authority from Bibb's Reports, as to what constitutes uncertainty in a mortgage; and by the testimony of judge Turner who deposes as to the validity and force of this mortgage, according to the laws where it was made. See 4 Bibb's Reports, 288.
    Morrison’s having obtained his judgment for $45,000 prior to his mortgage, produced certainty as to that sum. Nor was this certainly weakened by the confirmation of this judgment by the supreme court of Kentucky, and this too, prior to the pretended recording of Trudeau’s mortgage.
    It has, however, been urged to the court that, as regards real estate, our courts will not permit it to be affected in any other, than the manner pointed out by our own law’s. Fortunately for our client, it is not at all necessary to controvert this position ; the laws of this state, and those of Kentucky where the mortgage was executed, agreeing m every essential, requisite to the validity and force of this mortgage.
    There, mortgages cannot be created but by writing. Such is the law here. Nor can the mortgage have effect against third persons, unless duly executed and recorded as the law directs. Such is the law here. There, the intention of the parties, as to the nature of the instrument, is the governing rule of interpretation; such is the law here.
    It will not be seriously contended, that parties, competant to contract, cannot execute a mortgage in a sister state on property in this. This would go to vacate all contracts made out of this state; for, what is this mortgage but a contract ?
    This court, as also the tribunals of justice throughout the union, are in the daily practice of enforcing contracts made out of the state, where their execution is decreed; and no principle is better established, than that they will be enforced as to their nature and effect, according to the laws of the state where made. 3 Dallas, 370. See Lynch vs. Postlewaite, 7 Mart. 70; 1 Gallison, 371 ; 7 Martin, 352 ; 1 Peter's Rep. 74; Morris vs. Eve, 11 Martin, 730.
    
      All that this court, or any other any governed by sound principles, can with propriety do is, to take care that they do not enforce contracts, made elsewhere, in violation of the established rights of property, and to the prejudice of society here.
    
    It could not be asked of us, for instance, to permit real estate to be affected other than as the laws of our country require. Nor, that we should exempt citizens of other states from the performance of any duty we think proper to prescribe, in order to give their contracts or liens force and validity as to property in Louisiana.
    But this court have gone farther, in the case of Whiston vs. Stodder & als. Syndics, than we ask them to go. They decided in that case, that a lien attaching by the laws of a foreign country would follow property removed into this state, and be enforced here. 8 Martin's Rep. 135.
    We only ask of the court to give Morrison's mortgage the force and effect that would be given to similar contracts by the laws where made, and they are precisely similar to our own. Nor do we rely alone on this principle for protection. Upon presenting Morrison's 
      lien for enforcement, we take upon ourselves the task of showing, and we have clearly established, 1st, that his lien is created by writing, and in the same manner authorized by the laws of this state; and secondly, that he has performed all the duties which our laws require, so as to give his lien full force and effect.
    A decision in our favour preserves the sanctity of our laws, violates no principle of property, and in no wise prejudices the established rights of our citizens.
    If the plaintiffs’ lien has not the preference, to whom does censure attach? Where was the negligence which took away its priority? At his own door, in disobeying the positive injunctions of our own laws as to the duties enjoined, to give his lien validity, as regards third persons.
    I will close this argument, on the part of Morrison, by calling the attention of the court to two provisions of our Code, which clearly show, our legislative body looked to the enforcement of mortgages from sister states.
    In treating of mortgages and the several sorts, it is enacted, that "judgments rendered in the other states or territories of the United States, give a mortgage validity only from the day, when their execution has been ordered by one of the judges of this territory.
    "Conventional and judicial mortgages cannot operate against a third person, except from the day of their being entered in the office of the register of mortgages in the manner and form directed by the Code." Code, 454, art. 12, 14.
    
      Workman, in reply.
    In the elaborate and ingenious arguments of the learned counsel, on the other side, I find nothing that can overthrow my clients’ claim. A written instrument is unquestionably indispensable for the vendor’s privilege on immoveable property; for without such an instrument, that species of property cannot be legally sold: but She counsel goes too far when he maintains, that the proof of the existence of the privilege cannot he drawn from any other source. If it appears conclusively from the deed itself, that the price has been fully paid, then indeed there can be no question about the privilege for that price. But if it is shown, that the payment has been made only by notes, then the privilege will exist for the amount of those notes, should they not be paid. This has been determined repeatedly, even in the case of the less solemn privilege of the vendor of moveable property.
    
      
       This law has been considered as now in force by the two gentlemen, appointed by the legislature, to translate such parts of the Partidas as are law. I am happy to find my argument supported by their unbiassed judgment. Should the opinion of the court coincide with us, the controversy which has arisen in this cause, may be easily decided.
    
   The important question, whether the mortgagee of Smith can be considered as a third party, in the legal sense, is slipped over, by the opposite counsel, very smoothly. He tells us, laconically and confidently, that whoever was not a party to the deed, must be considered under the denomination of a third person. Then the heirs, or the legatees, or the vendees of Smith, as well as his mortgagees, would be third parties : and he who has no title at all, or but an imperfect or conditional one, to an estate, may, nevertheless, transmit that estate by a good title to another. The idea of a third party does, ex vi terminorum, exclude the principal party, his representatives and ayants-cause, that is all those who claim immediately from or through him.

I am not surprised, that the gentleman finds the definition of mortgage in our Civil Code to be an unfortunate one. It is so, for his cause at least. From this definition, as the counsel himself understands it, our claim, whatever it may be, cannot be considered as a simple conventional mortgage; for the vendee had no right or property in the estate sold, until he accepted of the sale of it. Neither, according to the definition (C. C. 454, art. 15) can our claim, as it is represented by the adverse party, be a legal mortgage; a legal mortgage being that which proceeds from the law, without any express covenant of the parties—and our claim being expressly covenanted for, and reserved by the parties themselves. What then can our claim be?—a privilege or privileged mortgage, and nothing else.

It is too late now for the parties to object, that we have proceeded on our privileged mortgage, as if it had been an ordinary conventional mortgage. In whatever manner the estate in question might have been sold, whether at our suit, or by the syndics of Smith, we should have been entitled to our privilege on the proceeds. But the counsel expressly state, that they do hot wish to set aside the sale that has been made : neither do we.

Of the true meaning of the word lien, no doubt can be entertained. If the legislature had enacted, that all liens whatever, not duly recorded, should be null and void,&c. I presume, all privileges like ours would have been included in that enactment. If the legislature intended to do, what it is erroneously said they have effectually done, they would have ordained, either that all liens whatever,—or all liens having the effect of a legal or privilege mortgage,—not recorded, &c. shall be null and void. But our legislature never did, and never intended to do any such thing. They could not do this without destroying all the privileges given on real property for funeral charges, law charges, charges for medical attendance, for salaries of persons hired, for subsistence, et cetera; privileges, most of which it would be impracticable to record in the manner the act prescribes for liens having the effect only of a legal mortgage. The construction, contended for, of the last part of the first section of the act of 1813, cannot be maintained without depriving all those entitled to the privileges above mentioned of their liens on the debtor’s immoveable property.— But it is already well settled, that no such effects have been produced by that act. This court has so decided in the cases I have already cited; and the legislature have confirmed the principle of the decisions in those cases, by modifying, in the act of 1817, the law in respect to one particular kind of privilege, to wit, the builder’s privilege, when his claim should exceed 500 dollars. The act of 1815 required the registry of all liens having the effect of a legal mortgage. The act of 1817 requires the registry of one, and only one species of lien having the effect of a privilege mortgage. If the legislature, in 1817, intended to require the registry of any other kinds of privileges, or liens having the effect of a privilege mortgage, they would have expressly designated and enumerated them.— This provision for the record of one sort of privilege, or privileged mortgage, on immoveable property, is a decided exclusion of the legal necessity of recording any others. And thus, as one of the counsel very justly observes, we find the legislature, from time to time, legislating with the view of closing the door against the evils of concealed liens : yet at no time, though they have had many years to meditate on the subject, have they legislated in this manner respecting the vendor's, or the physician’s, or the lawyer’s privilege on the immoveable as well as on the moveable property of their debtors.

The court took time to advise.  