
    Hibernia Bank and Trust Co. -vs-E. T. Dunn, Recorder of Mortgages.
    No. 7877.
    Court of Appeal. Parish of Orleans.
    By Dinkelspiel. _J._
   By Dinkela-oiel. J

This suit comes before us on appeal taken by Albert Millet, duly qualified under tutor of the minor Ferdinand Baoas, from a judgment rendered by the Civil District Court, Par -ish of Orleans, Division,'A', under which judgment a ^rlt of Mandamus, taken by the Hibernia Bank & Trust Company against the Recorder of Mortgages for the Parish of Orleans, had been made peremptory, directing said Recorder to cancel and erase from the books and records of his office, the general mortgage inscribed in Book 916, folio 683, against all the property of said 3ank resulting from its confirmation as dative tutor of said minor.

The under tutor had not been a party to the mandamus proceedings, and it was neally a year after the judgment making the mandamus peremptory had been signed by the Judge af the District Court that a motion for a devolu-tive appeal was asked for and allowed.

The appeal is based on tne grounds that the judgment wa3 against the law, and if allowed to stand would work an injury to the minor of which he was the under tutor.

In the argument and brief filed by Counsel for the under tutor, the ground set out as to the reason why the judgment ±s appealed from ie contrary to the law; the ohly point upon which this claim is based is that while it is true, that paragraph 2 of said Section 6, of the if Act s£ 45 of 1903, set out that, the capital stock as paid in shall be taken and considered as security required by law for the faithful performance of its duties as fiduciary; where a bank shall nave oeen appointed tutor by an order of Court this security ie an addition to that required by Articles 31S and 333 pf the Revised Civil Code, and therefore the Court erred in directing tne Recorder of Mortgagee to cancel the gen-ral mortgage given by the Bank as dativa tutor oft the minor above referred to.

The Supreme Court in passing on Seotion 3, of Aot 45, of 1903, held, that " Where aot 45, of 1903, does not otherwise provide the duties, rights, and obligations of a Bank Appointed tutor ad bona for a minor or interdiet are the same as those preseribsd by law in eases od ordinary tutor -ship*?- Young vs. Teutonia Bank and Trust Co. 134 Ann. 890.

In as mueh as Seotion 3, of said aet, provides that, * the oapital stook' as paid in shall be taken and eonsidered as seourity required by law for the faithful performanee of its duties as sueh fiduciary; ( tutor in this sase) provided the Court shall have the right to require^ other seourity, if it shall dess' proper.*

It is therefore our opinion, that the Legislature was of the opinion, that the seourity was the only seourity necessary for the proteotion of slnors and others for whom a Bank sight aot in it's capacity as tutor or curator, giving however to the Court discretion to exaot from the Bank other seourity, ik if it should deem it neoessary or proper in the Interest of it the minor, that additional security shall be furnished by it, and this Court sannot add to that seourity without infringing upon the prerogative of the legislative branoh of the State.

It is therefore our opinion that the judgement of the lower Court is oorreet, but in as muoh as the appeal taken by the under tutor of the minor, Ferdinand Baoas, was la the interest of said minor, we are of the opinion that all the oosts of appeal shall be paid by the tutor of the minor out of the funds in it's hands belonging to said mlnor^^^/'

For the reasons herein assigned, it is ordered, adjucíge¿f/t^~~<^ and deoreed, that the judgment appealed from be affirmed, costs- of appeal to be paid by the Hibernia Bank and Trust Co., dative tutor of the minor, Ferdinand Baoas, out of the funds now in it’s hands as dative tutor.

Judgment Affirmed.  