
    STATE of Louisiana ex rel. Augustus G. WILLIAMS v. RECORDER OF MORTGAGES FOR THE PARISH OF ORLEANS et al.
    No. 20856.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Rehearing Denied May 13, 1957.
    Writ of Certiorari Denied June 28, 1957.
    Frank P. Krieger, New Orleans, for plaintiff-appellant.
    Jorda S. Derbes, New Orleans, for Recorder of Mortgages for the Parish of Orleans, defendant-appellee.
    Floyd J. Reed, New Orleans, for Collector of Revenue, State of Louisiana, defendant-appellee.
   REGAN, Judge.

The plaintiff, Augustus G. Williams, the vendee of the real estate which provoked this litigation, prays for a writ of mandamus to compel the defendants, Rufus W. Fontenot, Collector of Revenue for the State of Louisiana, and Francis J. Dem-arest, Sr., the Recorder of Mortgages for the Parish of Orleans to cancel and erase from the records of the Mortgage Office the inscription of a judgment for corporation franchise taxes in favor of the State of Louisiana and against the W. E. T. Realty Company, Inc., the vendor from whom plaintiff individually acquired the property.

Defendants answered and, in substance, asserted that the plaintiff is not entitled to a cancellation of the inscription of the judgment for the reason that he had intimate knowledge of the suit by the State against the W. E. T. Realty Company, Inc., since the record in that suit discloses that the plaintiff was attorney for and Vice President of that Corporation and, as an officer thereof was personally served with citation, therefore, he was thoroughly acquainted in both capacities with the pleadings and the full effect of the judgment rendered therein; that the act of sale from the W. E. T. Realty Company, Inc., to him individually purportedly passed on January 3, 1949, but not registered in the Conveyance Office until February 14, 1949, the same date as the judgment resulting from the above suit was recorded in the mortgage office was simply a simulated sale, — a surreptitious attempt to place this property beyond the reach of the judicial mortgage which had been legally acquired by the State, and, therefore, the registration of the sale should be treated as though it had never existed.

From a judgment in favor of the defendants dismissing plaintiff’s suit he has prosecuted this appeal.

The general chronological facts are relatively undisputed and the details thereof are significant to emphasize the character of the case. The record reveals that on December 8, 1948, the Collector of Revenue for the State of Louisiana, brought suit against the W. E. T. Realty Company, Inc. for corporation franchise taxes for the years 1945 and 1946 in the amount of $758.03 and the suit was served on the Vice President of that corporation, Augustus G. Williams; the corporation filed four distinct pleadings to this suit and, in each instance, the names of Augustus G. Williams and Delvaille H. Theard appeared as co-counsel of record. The case was tried and, on February 11, 1949, judgment was rendered and signed in favor of the Collector of Revenue as prayed for and no appeal was perfected therefrom. On February 14, 1949 at 11:30 a. m. the Collector of Revenue for the State of Louisiana recorded its judgment of February 11, 1949 in the Mortgage Office. In the process of recordation the clerk omitted the amount of the judgment and simply inscribed therein “that there be judgment * * * in favor of W. A. Cooper, Collector of Revenue of the State of Louisiana condemning * * * W. E. T. Realty Company, Inc., to pay to (Collector of Revenue) corporation franchise tax, penalty and interest on attorney’s fees and all costs, and that the lien and privilege of the State be recognized and enforced according to law.”

The record further reveals that on January 3, 1949, by act before Frank P. Krieger, Notary Public, the real estate which is the subject of this mandamus suit was allegedly sold by the W. E. T. Realty Company, Inc. to Augustus G. Williams, its attorney and Vice President, but it was not until February 14, 1949, or forty-two days thereafter that this act of sale was registered in the Conveyance Office, which was the same day that the Collector of Revenue recorded the State’s judgment in the Mortgage Office.

The fundamental question posed for our consideration is whether the sale from the W. E. T. Realty Company, Inc. to Williams was simulated?

The whole tenor of the record leads us to the inevitable conclusion that the sale from the W. E. T. corporation to Williams was simulated — a surreptitious attempt to place this property beyond the reach of the judicial mortgage which had been legally acquired by the State. The record establishes beyond a shadow of a doubt that when the State sued the W. E. T. corporation for corporate franchise taxes Williams was its attorney and Vice President and throughout those proceedings he was intimately acquainted with both the pleadings and the full effect of the judgment which was rendered therein on February 11, 1949; he knew that it would subsequently be recorded and, thereafter operate as a judicial mortgage against the property of the W. E. T. corporation; it was shortly thereafter, or on February 14, 1949, that his notary registered a purported sale, dated January 3, 1949, which was forty-two days after Williams had acquired the property from the W. E. T. Realty Company, Inc. Williams, in endeavoring to explain the unusual delay of forty-two days in registering the act or until the very day on which the Collector of Revenue recorded his judgment, asserted “I think it was just an oversight on (Frank P.) Krieger’s part.”

The record further reveals that this property was purportedly acquired by Williams from the W. E. T. corporation in the year of 1949 without the payment of any consideration other than the assumption of the existing mortgage, which significantly was approximately $800 less than the original mortgage given by the W. E. T. corporation to the Union Savings & Loan Association in the year of 1944 on this piece of property.

We are fully cognizant of the fact that sales are often consummated in this manner and they are legal and valid provided, of course, the environmental characteristics of the transaction reflects good faith, however, even though we figuratively used the lighted lantern of Diogenes, we have failed to find any evidence thereof in this transaction; on the contrary, we recognize an abortive effort to defeat the state’s judgment for corporate franchise taxes.

In Reeves v. Felder, La.App.1942, 6 So. 2d 688, 691, the court in holding that the sale was simulated observed:

“Another circumstance which, in our opinion, reflects on the integrity of the sale, arises from the fact that it was more than six months after it had been executed that the deed was filed for record in the Conveyance Office of the Parish. That, to say the least, was a bit unusual and the defendant has not given a very satisfactory explanation of that long delay.”

In Rogers v. Brown, La.App.1943, 12 So.2d 68, 70, the court in passing on a similar situation asserted:

“It appears to us that the purported sale to him was not confected in good faith. The written act of sale of October 27th, 1941, was executed with knowledge that a writ of provisional seizure had been ordered and executed, save on the automobile in question. It appears to us that the parties in interest expected the said automobile to be provisionally seized, and to circumvent seizure, the cash deed was executed.”

In Houghton v. Houghton, 1928, 165 La. 1019, 116 So. 493, 495, the court said:

“A simulation is a feigned, pretended act; one which assumes the appearance without the reality. Being entirely without effect, it is held not to have existed, and, for that reason, it may be disregarded or attacked collaterally by any interested person.”

Assuming arguendo that the sale was not simulated, a view which plaintiff believes to be most favorable to his case, we are then of the opinion that the judgment of the State, which was recorded in the Mortgage Office at 11:30 a. m. February 14, 1949, was prior to the registration of the act of sale in the Conveyance Office, although they both occurred on the same day, for the reason that plaintiff, in alleging prior registration on the same day, caused time to become the essence of the conflict and, therefore, the burden was upon him, or his notary, who possessed that knowledge, to prove time of registration of the act and although they were offered the opportunity they failed to do so.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

JANVIER, Judge

(concurring).

I concur in the opinion and in the decree although I have some doubt on the question of whether the charge that the sale was a simulation is properly before us.

It is true that the Recorder of Mortgages expressly raised that issue and charged that the said sale was a simulation.

As I have already stated, I have some slight doubt as to whether the Recorder of Mortgages could be heard to challenge the reality of the transaction. His only interest was to establish the fact that the judgment, which was left with him for recordation, was recorded promptly and that the error which he made in omitting the amount of the judgment should not have the effect of nullifying the entire recordation.

If the reference by the Collector of Revenue to the sale as being “purported” may be construed as a charge that that sale was a simulation, then I thoroughly concur in the view that it was a simulation. However, whether or not it was a simulation I am well convinced that the decree which affirms the judgment against the relator is correct, for the reason that I believe that the record justifies the conclusion that the sale to Williams was not shown to have been registered in the Conveyance Office prior to the time at which the judgment in favor of the Collector of Revenue was recorded in the Mortgage Office.

It must be remembered that the sale, whether real or purported from the W. E. T. Realty Company, Inc., was passed forty-two days "before it was filed for registration in the Conveyance Office, and it must also be remembered that Williams well knew that the judgment in favor of the Collector of Revenue had been rendered and signed and that if recorded before the registration of the purported sale to him, it would be effective against the property purportedly transferred to him. Thus the question of whether his sale was registered first was of vital importance and he should have produced evidence to the effect that it was registered before the judgment was recorded.

For these reasons I concur in the opinion and decree.

McBRIDE, Justice

(dissenting).

The prevailing opinion states that the fundamental question posed for the court’s consideration is whether the sale was simulated. I do not believe that simulation vel non should be considered for the reason that the Collector of Revenue, the creditor, has not raised the question and the other defendant in the mandamus proceeding, the Recorder of Mortgages for the Parish of Orleans, had not the right to> do so, for the simple reason he has no interest in the matter. I concede that a simulated or pretended act is entirely without effect and may be disregarded or collaterally attacked by any interested person. No interested person has attacked the verity of the sale involved in this case.

The fundamental question involved, to my mind, is whether a judicial mortgage recorded at 11:30 a. m., February 14, 1949, affected property which was sold by the judgment creditor on February 14, 1949. In other words, which of the transactions is to be given priority by the court. The good or bad faiih of relator is immaterial.

Prior to the advent of Act No. 215 of 1910 (now LSA-R.S. 9:5141), by the terms of LSA-C.C. art. 3358, the creditors, whose mortgage inscriptions have been made on the same day, possessed a concurrent mortgage, and no distinction was made between an inscription made in the morning and that made in the evening even though the recording officer may have noted the difference.

However, Act 215 of 1910, LSA-R.S. 9:5141, had the effect of repealing LSA-C.C. art. 3358, and said section provides thus:

“All acts or instruments of writing which import mortgage or privilege, when filed for record with the recorder of mortgages, shall be immediately indorsed by him with the date, hour, and minute of filing which indorsement shall be recorded with the registry of the instrument.
“All such instruments shall be effective against all persons from the time of their filing.”

I can find no statutory law or jurisprudence as to the priority which should be given acts of conveyance which may have been registered in the Conveyance Books in the Parish of Orleans on the one day or as between a mortgage and a conveyance which were recorded on the same date.

LSA-C.C. arts. 2254, 2262, 2264, and 2266 found in that section of the Code entitled “Of registry” provide when the registry of a deed is effective as to third persons.

LSA-C.C. art. 2254:

“It shall be the duty of the recorder to indorse on the back of each act deposited with him the time it was received by him, and to record the same without delay in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish recorders.”

LSA-C.C. art. 2262:

“In the parish of Orleans, acts, whether they are passed before a notary public or otherwise, shall have no effect against third persons, but from the date of their being deposited in the office of the register of conveyances.”

LSA-C.C. art. 2264:

“No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder, or register of conveyances of the parish where such immovable property is situated.”

LSA-C.C. art. 2266:

“All sales, contracts and judgments affecting immovable property, which shall not he so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.

“The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer.”

The use of the words “to register,” “to record,” and “to deposit” were used indifferently by the Legislature as if those words were synonymous. It also seems to be clear that the provisions of LSA-C.C. arts. 2254 and 2264 apply to- the parishes outside of Orleans; arts. 2262 and 2266 apply to registry in the Parish of Orleans. See Schneidau v. New Orleans Land Co., 132 La. 264, 61 So. 225.

LSA-C.C. art. 2266 explicitly provides that the recording may be made at any time but shall only affect third persons from the time of recording.

I do not believe that hours or parts of days are to be considered when computing the effectiveness of the registry of a conveyance in Orleans Parish, and that when the act of sale involved in this suit was recorded on February 14, 1949, it had effect as to third persons from that date, that is to say from the beginning of February 14, 1949. On the other hand, we know that the judicial mortgage was recorded at 11:30 a. m., on February 14, 1949, and was therefore effective only for a portion of that day. Under the statutory law as it now stands the sale made by the W. E. T. Realty Co., Inc., which was recorded on February 14, 1949, regardless of the time the act was recorded on that particular day, should be considered as having been made free and clear of the judicial mortgage. True my position is arbitrary, but the question must be decided solely from an arbitrary standpoint.

I do not agree that it was incumbent upon the relator to make proof that the act of sale was deposited in the Conveyance Office before 11:30 a. m. of the day in question, as that would have entailed the reception of testimonial proof because the Register of Conveyances did not stamp upon the act the exact hour and minute at which it was deposited in his office for registry, and even if he had done so such notation would have been of no effect as the law does not require this be done. The rule is that parol evidence is inadmissible to prove or affect title to real estate. To admit such evidence to show when the act became effective as to third persons would' do violence to that rule.

I believe that the relator is entitled to the relief he seeks and therefore respectfully dissent. 
      
      . No. 286937 of the docket of the Civil District Court for the Parish of Orleans.
     
      
      . Forty-two days after the purported acquisition of the property.
     
      
      . Recorded in Mortgage Office February 14, 1949 at 11:30 a. m.
     
      
      . LSA-R.S. 13:5033 provides in part that “all judgments sustaining any such claim shall be rendered and signed on the same day, and shall become final and executory on the fifth calendar day after renditiou.”
     
      
      .Plaintiff’s counsel insists that this omission of the amount invalidated the judicial mortgage, and cites principally in support thereof Lirette v. Carrane, 1865, 27 La.Ann. 298.
     
      
      . Plaintiff contends that even if the State’s judgment was properly recorded it cannot operate as a judicial mortgage upon the property of plaintiff for the reason that the Stale's judgment became a judicial mortgage on February 14, 1949 at 11:30 a. m., LSA-C.O. art. 3322, whereas plaintiff’s act of purchase was effective for the whole day of February 14; 1949, LSA-C.C. art. 2262.
     