
    No. 512.
    Thomas B. Lee v. R. C. Cummings and Paulina Pickett. Charles E. Alter et als. Intervenors.
    On sixth February, 1857, Mrs. Pickett conveyed to Cummings the usufruct for life of the Chalk Level plantation by act under private signature. On twentieth November, 1865, Cummings mortgaged to Mrs. Pickett the Chalk Level plantation, A. H. Leonard accepting the mortgage as agent of Mrs. Pickett, who thereby, it is alleged, as well as those who might claim under her, was estopped from denying Cummings' title to said plantation, because she had accepted a mortgage from him and thus tacitly acknowledged him as owner thereof. On the twenty-fourth of November, 1866, Alter recorded a judgment which he had obtained against Cummings in the parish of Bossier. On third July, 1866, Mrs. Pickett mortgaged the Chalk Level plantation to Lee to secure ten notes for $10,000 each.
    On the second September, 1866, Mrs. Pickett, hy act under private signature, renounced in favor of Lee the priority of her mortgage acquired from Cummings.
    On the seventh of December, 1872, the Chalk Level plantation being sold at the suit of Lee and purchased by the Union Bank, the proceeds of this sale are now the subject of this controversy.
    Prior to the sale, the Citizens’ Bank, the Union Bank and Mary B. Conner had filed their opposition, alleging that they held notes secured in the same mortgage from Mrs, Pickett to Lee, which said notes Lee had indorsed to them and therefore they were entitled to be paid by preference over Lee out of the proceeds of the sale of the mortgaged property. Alter also filed a third opposition setting up his mortgage rights.
    The inquiry is limited to the validity and extent of Alter’s rights as against plaintiff and the opponents, the Citizens’ Bank, the Union Bank, and Mary B. Conner, in relation to the proceeds of the sale.
    Cummings had no title from Mrs. Pickett which had effect as to third persons, because none was recorded in the book of conveyances in the recorder’s office of the parish of Bossier. It was not disclosed to the public, when the mortgage of Mrs. Pickett to Lee was granted, and there is no evidence that it has ever been disclosed by registry in the parish of Bossier, where the Chalk Level plantation is situated. The registry in the mortgage book would be good for a mortgage, hut would be no registry for a title. Therefore the mortgage granted by Mrs. Pickett on the second of July, 1866, to Lee on the Chalk Level plantation, the title of which stood on the public records in her name, is not defeated hy the judicial mortgage of Alter against Cummings.
    As mortgagee of the usufruct which Mrs. Pickett attempted to create in favor of Cummings, Alter is equally unfortunate. The registry of his judgment against Cummings did not give him a mortgage on the right of usufruct of the Chalk Level plantation. The act granting it is an act under private signature, and therefore invalid as a donation. It is not good as a sale or a giving in payment, as there was no price stated in the act.
    If, however, Cummings had the right of usufruct, aud Alter, by the registry of his judgment against him, had acquired a mortgage thereon, Alter should have asked for a separate appraisement prior to the sale, in order that his part of the proceeds should be ascertained with legal certainty.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Turner, J.
    
      N. O. Blanchard, for plaintiff and appellee. BaMil & Taylor, for Alter, third opponent and appellant. Nutt & Leonard, for Union Bank, Citizens’ Bank, and Mary B. Conner, third opponents and appellees.
   Morgan, J.

On the sixth of February, 1857, Paulina Pickett, by act under private signature, declared as follows: “ State of Louisiana, parish of Bossier, be it remembered hereby, that I, Panlina Pickett, of the above residence, for and in consideration of tbe recitals hereinafter made, do hereby bargain, sell, grant, transfer and convey unto Robert C. Cummings, of the city and parish of Orleans, in the State of Louisiana, the following described, property, all lying in the parish of Bossier and State of Louisiana, namely, the following lands. * * * This conveyance is for the term of the natural life of the said Robert C. Cummings, the intention of this conveyance being to give to the said Cummings the usufruct of all the aforedescribed property for and during his natural life. It is the object of this conveyance to give the said usufruct, as aforesaid, to commence with the first of the current year, and to embrace the crops of every description that shall be made on said plantation the current year, together with the provisions of every description, and plantation supplies now on said plantation, and all the rights, privileges and improvements appertaining to said plantation, land, slaves, etc. And to the end that the said Cummings may fully enjoy the estate herein conveyed to him in full property for the term aforesaid to be by him used, occupied, farmed, leased, and enjoyed in his own name.

“ The consideration of the above conveyance is the affection I have and bear towards the said R. C. Cummings, as well as the obligations I feel under toward him for his personal services and attention to my business as well in the parish of Bossier as elsewhere.”

• On November 20, 1865, Cummings, to secure Mrs. Pickett against liability on certain accommodation paper, amounfing to $300,000, which she had given for the benefit of R. C. Cummings & Co., executed a mortgage on the Chalk'Level plantation. In this act of'mortgage his usufruct is not mentioned.

On the third July, 1866, Mrs. Pickett mortgaged to the plaintiff, T. B. Lee, the Chalk Level plantation to secure the payment of ten notes for the sum of ten thousand dollars each, which notes were drawn by Cummings in favor of Lee.

On the third September, 1866, by private act Mrs. Pickett executed a release of the mortgage granted to lier by Cummings, and required the recorder of Bossier parish to make Lee the first mortgage, reserving to herself the second mortgage. The act recites:

“Know all men by these presents, that I, Mrs. Paulina Pickett, of the parish of Bossier, in the State of Louisiana, do hereby declare as follows, to wit: that whereas, by an act dated Caddo parish, the twentieth November, 1865, R. C. Cummings did specially mortgage and hypothecate in my favor his life interest in the Chalk Level plantation,” etc.

Lee caused the Chalk Level plantation to be seized under his mort-' gage. It was sold, the proceeds remaining in'the hands of the purchaser. Prior to the sale the Citizens’ Bank, Mrs. M. B. Conners, and the Union National Bank filed their oppositions claiming the proceeds of the sale of the land on the ground that they were the holders of some of the series of the notes given by Cummings to Lee, and secured by the same mortgage.

Alter filed his opposition, claiming the proceeds of this plantation. He claims a mortgage arising from the registry made on the twenty-fourth March, 1861, in the recorder’s office of Bossier parish, of a judgment rendered in his favor, against Cummings & Co., by the Third District Court of New Orleans, on the twenty-sixth January, 1866, for the sum of $46,150; also a legal mortgage upon the land resulting from the registry in the same office, of a judgment in his favor, against Mrs. Pickett, as garnishee, rendered by the same court on June 13, 1866. He alleges that the registry of these judgments operated as a mortgage on all the interest Cummings had in the Chalk. Level plantation ; that at the time of the registry of the judgment Cummings was the usufructuary of the land, and that he is still the usufructuary and in possession thereof. He contends further that Mrs. Pickett, having in the mortgage from Cummings to herself, acknowledged Cummings to be the owner of the land, it is now subject to the mortgage resulting from the registry of the aforesaid judgments in his favor, and he therefore claims to be paid by preference over Lee.

The decision in the case of Alter v. Pickett, from which resulted the judicial mortgage in Alter’s favor, recorded in Bossier parish and affecting the Chalk Level plantation, was reversed. When the judgment fell, the mortgage upon which it rested fell with it, and the contest between the parlies is disembarrassed of this element of difficulty. They are left to contest their rights upon the following state of facts: Alter, as the judgment creditor of Cummings, claims to have a mortgage upon the plantation, superior to the one under which the plaintiff and intervenors set up their rights, because he says Mrs. Pickett, when she took a mortgage from Cummings on the Chalk Level plantation thereby acknowledged the title of the plantation to be in him, and that inasmuch as his judgment was recorded before the act of mortgage from Mrs. Pickett to Lee was passed, his claim is superior to Lee’s. And he contends that Cummings’ title to the plantation can not be questioned.

“If the contest here was between Mrs. Pickett and Cummings, or a party claiming against them, either individually or together, the doctrine of estoppel would have to be considered. But others’ rights are in the scale, and estoppel, which applies only to the parties or their ayant cause, can not weigh against them.”

It is to be observed that there is no question of usufruct here, or whether the usufruct passed with the sheriff’s sale, or the title thereto. The usufruct not having been sold, the sole question is, did the recorded judgment of Alter against Cummings in the parish of Bossier affect the Chalk Level plantation ?

To mortgage a piece of property, the mortgager must be the owner of it. Now Cummings was never the owner of the Chalk Level plantation. He had the usufruct of it, but usufruct is defined to be the right of enjoying a thing the property of which is vested in another, and we are quite convinced that when Mrs. Pickett took her mortgage from him, she never fancied that she was taking any thing more than a mortgage upon his usufruct. ■ Under no circumstances can this act of mortgage be looked upon as a title to the property, or an acknowledgment that it belonged to him, at any rate in so far as to affect the rights of third persons. So far at least as the public was concerned, Mrs. Pickett’s title to the property was not changed, and the mortgage which she gave to Lee was perfectly good, valid, and binding in favor of all those who held obligations secured thereby.

At the threshold of this investigation therefore an impassible barrier is presented to Alter’s pretensions, and this renders an examination of the other points which have been presented and ably argued unnecessary.

Judgment affirmed.

On Rehearing.

Wyly, J.

Oh sixth February, 1857, Mrs. Paulina Pickett conveyed to R. C. Cummings the usufruct for life of the Chalk Level plantation by act under private signature, the consideration being her affection for him “ as well as the obligations I feel under toward him for his personal services and attention to my business as well in the parish of Bossier as elsewhere.”

On twentieth November, 1865, Cummings mortgaged to Mrs. Pickett the Chalk Level plantation to secure her against liability on accommodation paper, amounting to $300,000, given by her to Cummings & Co., A. H. Leonard accepting this mortgage as agent of Mrs. Pickett.

On twenty-fourth March, 1866, Charles E. Alter recorded a judgment which he had against Cummings in the parish of Bossier; and it is this right, as mortgage creditor of Cummings, which he asserts against the proceeds of the sale of the Chalk Level plantation.

On,third July, 1866, Mrs. Pickett mortgaged the Chalk Level plantation to Thomas B. Lee to secure ten notes for $10,000 each.

On third September, 1866, Mrs. Pickett by act under private signature renounced in favor of Lee the priority of her mortgage acquired from Cummings, the act reciting that “whereas, by an act dated Caddo parish, November 20, 1865, R. C. Cummings did specially mort-gage in my favor his life interest in the Chalk Level plantation.”

On eighth October, 1872, Thomas B. Lee sued out an order of seizure and sale on one of the ten mortgage notes he acquired on third July, 1866, and the Chalk Level plantation was sold thereunder on seventh December, 1872, to the Union Bank; and the proceeds of this sale are now the subject of controversy. Prior to the sale the Citizens’ Bank, the Union Bank, and Mary B. Conner filed third oppositions, alleging that they held notes secured in the same mortgage from Mrs. Pickett to Lee, which said notes Lee had indorsed to them and therefore they were entitled to.be paid by preference over Lee out of the proceeds of the sale of the mortgaged property.

Charles E. Alter also filed a third opposition, setting up his mortgage rights, resulting from the registry of his judgment against Cummings in Bossier parish on twenty-fourth March, 1866, and alleging that the Chalk Level plantation (the proceeds of which are in controversy) belonged to Cummings; that Mrs. Pickett and those claiming under her are estopped from denying Cummings’ title' to said plantation, because she accepted a mortgage on said plantation from him on twentieth November, 1865, thereby tacitly acknowledging him as owner thereof. He also claims a mortgage on the usufruct of Cummings in the event it should be held that he only held the right of a usufructuary on said plantation ; and as mortgagee of the right of usufruct he claims a portion of the proceeds of the sale of said plantation equal to the value thereof, in view of the fact that said right of usufruct was sold, as lie alleges, under the foreclosure of the mortgage of Lee. The court below rejected the demand of Alter, dismissed his opposition, and distributed the proceeds of the sale of the Chalk Level plantation between the other opponents and plaintiff. From this judgment Charles E. Alter has appealed.

The inquiry is limited then to the validity and extent of his rights as against plaintiff and the opponents, the Citizens’ Bank, the Union Bank and Mary B. Conner in relation to the funds in controversy.

If the Chalk Level plantation belonged to E. C. Cummings and appeared so in the notarial books of the parish of Bossier, Alter would have a right to the proceeds superior to the other parties to this suit, because his judicial mortgage ranks from twenty-fourth March, 1866, the day he recorded his judgment against Cummings, and this was prior to the mortgage- given by Mrs. Pickett out of which the rights of all the appellees arise.

But Cummings had no title from Mrs. Pickett which had effect as to third persons, because none was recorded-in the book of conveyances in the recorder’s office of the parish of Bossier.

The only evidence of title in him was Mrs. Pickett’s implied acknowledgment when she accepted from him a mortgage on her Chalk Level plantation, if indeed she did ratify the act of A. H. Leonard, Esq., who without authority accepted in her behalf the mortgage from Cummings. If, instead of an implied recognition of title,- which Mrs.: Pickett was estopped from denying, she had made to Cummings a regular conveyance of the'Chalk Level plantation, and the deed was not recorded, it would be without effect as to third persons accepting title or a mortgage subsequently from Mrs. Pickett who appeared on the public records as the owner of the Chalk Level plantation.

It is not pretended there was a registry in the conveyance books of the parish, of the mortgage which operated the estoppel, assuming that such would amount to a public notice of title, about which we express no opinion.

As to third persons, therefore, the pretended title of Cummings was utterly without effect. It was not disclosed to the public when the mortgage of Mrs. Pickett to the appellees was granted, and there is no evidence that it has ever been disclosed by registry in the parish of Bossier, where the Chalk Level plantation is situated. The registry in the mortgage book would be good for a mortgage, but would be no registry for a title. Our conclusion, therefore is, that the mortgage granted by Mrs. Pickett, on third July, 1866, to Thomas B. Lee on the Chalk Level plantation, the title of which stood on the public records in her name, was and is not' defeated by the judicial mortgage of Charles E. Alter against R. C. Cummings. As a mortgage creditor Alter can not successfully contest with the appellees for the proceeds of the sale of the Chalk Level plantation.

As mortgagee of the usufruct which Mrs. Pickett attempted to create in favor of Cummings he is equally unfortunate. The registry of his judgment against Cummings did not give Alter a mortgage on the right of usufruct of the Chalk Level plantation, because no such right was legally acquired by Cummings. The act granting it is an act under private signature; and therefore invalid as a donation. It is not good as a sale or a giving in payment, as there was no price stated in the act. If, however, Cummings had the right of usufruct, and Alter, by the registry of his judgment against him, had acquired a mortgage thereon, Alter should' have asked for a separate appraisement prior to the sale, in order that his part of the proceeds could be ascertained with legal certainty. On the whole, we are satisfied that the judgment appealed from is correct.

It is therefore ordered that our former judgment rendered in this case remain undisturbed.

Morgan, J.,

concurring. I concur for the reasons assigned in the former opinion of the court.

Ltjdeling, C. J.,

dissenting. I dissent in this case on the grounds that the third opponent had the first mortgage on the property sold, and I reserve the right to state hereafter my reasons for this opinion.  