
    John C. Delavigne, Syndic of his Creditors, v. Louis Urbain Gaiennie and others.
    A Recorder of Mortgages cannot be compelled to erase a mortgage without making the mortgagee a party to the proceedings, unless a judgment ordering the erasure has been rendered contradictorily with the latter.
    Where a mortgage has been erased in pursuance of a j udgment of a court of competent jurisdiction, rights acquired by subsequent mortgagees, before any proceedings to annul the judgment, will not be affected by any illegality in it. Third persons are not bound to look beyond the judgment, which, if rendered by a court of competent jurisdiction, must have its full effect, and can only be annulled by a direct action. Aliter, as to the parties themselves, or their ayans-cause with notice; as to them, the rights of a mortgagee cannot be affected by any order or decree in a case to which .he was not a party.
    Appeal from the District Court of the First District, Buchanan, J.
   Simon, J.

It appears from the record that a judgment having been obtained by the plaintiff against the defendant Gaiennié, on the 2d of January, 1838, and having been duly recorded in the office of the Recorder of Mortgages, an execution was issued thereon, which was levied, on Gaiennié’s property, which property was sold on a credit of twelve months, in consequence of which a bond was furnished by the purchaser for the benefit of the judg-mentcreditor. After the taking of said bond, Gaiennié, on filing the certificate of the sheriff showing how the proceeds of the property seized and sold, and the bonds given by the purchaser had been disposed of in satisfaction of said judgment, moved the court for an order cancelling the judicial mortgage existing on the rest of his property, whereupon, on the 30th of August, 1839, a judgment was rendered, ordering that the'said judicial mortgage resulting from the recording of said judgment he raised and cancelled. It does not appear that the judgment creditor was even notified of the motion. The bond due to the plaintiff not having been paid at maturity, an execution was issued thereon, the same property was resold, and only produced an amount which went to the satisfaction of the costs.

It further appears from a certificate of the Recorder of Mortgages that, in consequence of said judgment, and on the filing in his office of a certificate signed by the deputy clerk of the District Court, on the 2d of September, 1839, the judicial mortgage in question was cancelled and annulled from the records in his of fice; and that, on the 27th of the same month, an act of mortgage was executed by Gaiennié upon his property, in favor of the Citizens Bank of Louisiana, to secure a loan made to him; in which act, the judicial mortgage in question is pot in any manner stated or alluded to as existing on the property mortgaged, nor is it mentioned in the certificate of the Recorder of Mortgages accompanying the act.

The object of the present action is to reinstate the judicial mortgage against the property of the defendant Gaiennié, as though the same had never been erased, and to obtain a judgment that the petitioner be decreed to be an anterior mortgagee to the Citizens Bank, for the amount of his judgment, principal and interest.

The judge a quo being of opinion that this action, being in its effect an action of nullity or rescission of the judgment render-! ed on the 30th of August, 1839, said judgment" cannot have any legal effect against a person who was no party to the ex parte order obtained on the motion of Gaiennié, ordered the judicial mortgage to be reinstated in the manner prayed for by the plaintiff; and from this judgment, the Citizens Bank has appealed.

It is perfectly clear, nay, it is even conceded by the appellants’ counsel that the judgment rendered on the ex parte motion of the judgment debtor, was illegal and irregular, and that the Recorder of Mortgages could not have been compelled to cancel the judgment recorded, without the privity of the party who had obtained it, or unless said judgment had been rendered contradictorily with the judgment creditor. This has always been the uniform course of our jurisprudence. 2 La. 489. 4lb. 17. 6 lb. 454. 5 lb. 330. Sep also the case of French v. Prieur, depleted in December, 1843 (6 Rob. 299). In the case of Leverich v. Prieur, decided in June last, in which this doctrine was again reviewed, we held not only that “ a proceeding of this nature ought to be carried on contradictorily with those against whom it is intended to be used but we said also, “that the Recorder of Mortgages yyas npt bound, ex officio, tp make the erasure of mortgages, and to expunge them from his books, on being informed of the circumstances under which they were extinguished ; and that, although he may perhaps do so, if he is certain of the facts, it will be at his peril, and he will not be protected against the consequences of his act, if improperly done.” Here, the mortgage was erased by virtue of a judgment illegally rendered; it is true; but such judgment, though subject to an action of nullity, had been rendered by a court of competent jurisdiction, and the question occurs again: Can the right acquired by the appellants before the judgment was sought to be annulled, be affected by the irregularities existing in the previous proceedings; and were they bound to look beyond the judgment by which the Recorder of Mortgages was authorized to eancel-the appellee’s judicial mortgage ?

This question is not new in our jurisprudence, and since the ease of Casanova’s Heirs v. Avegno (9 La. 195), we have uniformly held, in substance, that a third party, upon whose rights a judgment is to bear as a protection, is not bound to look beyond said judgment, which, if rendered by a court of competent jurisdiction, must have its full force and effect, and cannot belin-validated or annulled but by a direct action of nullity. 11 La. 149. 13 La. 434. 14 La. 146,468. 17 La. 198.- In the case of Leblanc v. His Creditors (16 La. 124), the judgment ordering the pelease of the minor’s mortgage, was declared binding with regard to the rights of the subsequent mortgage creditors, notwithstanding the alleged illegalities and irregularities sufficient to annul it; and this doctrine was again fully reviewed in the cases of Guesnon v. His Creditors, Rhodes et al. v. The Union Bank, and Dumas, Ex’r, v. Guesnon, reported in 7 Robinson, in which last case, we said that “ mortgages acquired by third persons under the faith and protection of a decree of a court of competent jurisdiction, which had not then been annulled or in any manner attacked, should have their full effect, and should be satisfied in preference to the mortgage previously and perhaps illegally can-celled.”

The appellee’s counsel, however, has mainly relied on the ease of Dreux v. Ducournau (5 Mart. 625), to sustain his position, that the appellants were bound to take notice of the irregularities existing in the proceedings had previous to the judgment, and that they could acquire no right under a judgment tainted with such nullities, and the case referred to appears to have been the basis of the judgment appealed from; but although it was intimated, and even said in that case, that the right of the mortgage creditor ought not to be affected by the order or decree by virtue of which the mortgage was cancelled, as he was not made a party to the action, the point which this case presents was not then at issue contradictorily with a third party contending for mortgage rights subsequently acquired; it was with the purchaser of the property mortgaged, who refused to pay the price, on account of the danger of eviction resulting from the former existence of the old mortgage, and from its having been, within his knowledge, illegally cancelled. This (Court said: “ The defendant, having knowledge of this, could not' have paid the whole amount promised by him for the plantation, with safety, and ought not, in equity, to be compelled to do it, without being well secured against the mortgagee’s claim.” This doctrine is not adverse to the one subsequently and repeatedly recognized by this court, with regard to innocent third persons, for, with regard to the parties themselves, or their aya%s-cause with notice, the right of the mortgagee cannot clearly be affected by any order or decree rendered in a case in which he was not made a party.

The jurisprudence of the country from which we have derived the greatest part of our laws upon this important subject, appears to be concordant with ours. See Sirey, vol. 11, part 2, p. 472, in which it was decided that: “ Lorsqu’ une hypothéque a été rayée, le jugement ou arrét qui en ordonne le rétáblissement nepeut lui rendre sa premiere date; tout pe qui a été fait dans l’intervalle de la radiation an rétáblissement est bien fait.” 12 Ib. part 2, 370. See also Duranton, vol. 20, Nos. 202 and 203, in which the commentator says: “ Mais ni le recours en cassation, ni la requite ci-vile ne suspendent l’exécution des jugemens, encore que le pourvoi eút été admis ou que la requéte civile eút été regue, tant que le jugement ou Varrét n’aurait pas été cassé ou rétracté; par consequent V inscription pent étre rayée. Cela pent sans donte devenir funeste au créancier, dans le cas oú, en definitive, il gagnerait sa cause, Cdf Vinscription ne serait point rétáblié a sa date primitive par rapport aux tiers qui auraient, depuis la radiation, pris des inscriptions sur les mémes Mens; autrement le principe de la publicité serait violé dans ses conséquences.” And see Faillet, Manuel de Droit, on art. 2157, s. 6. Under our laws, tbe principle of publicity of mortgages is equally important and inviolable ; it is the basis upon which the rights of mortgage creditors rest, and the source from which they are derived (C. C. 3297, 3317); and were we to recognize that, with regard to third persons, strangers to anterior judicial proceedings, erasures of mortgages, apparently legal, and sanctioned by a judgment of a court of competent jurisdiction, can be enquired into and successfully disputed; and that such mortgages can be reirktaled^&h^hfih.eiv previous and anterior effects, there would rt^irí^^teáí^' confusion in our system of mortgages; no reli^rio^e&uld be placpd on the certificates of their recorders; no mSn w^quld^aSé^óAfansact any business in which this contract wojpW^foe the basis,,of the transaction ; and our laws upon this subject, -g^tggiSs^f^befng a protection to honesty, and a beacon toMm*' eitizengin' one of their most ordinary transactions of life, wotBrHSBsSused as means by which frauds could be successfully practiced, or as snares to the unconscious and unwary. We cannot sanction the doctrine adopted by the judgment appealed from, by which, asDurantori says, the principle of the publicity of mortgages is violated in its consequences; and we conclude that the judge a quo erred in' reinstating theplaintiff’s judicial mortgage, in its effect against the rights acquired, since its erasure, by the appellants.

With regard to the defendant Gaiennié, the judgment appealed from must stand, and the mortgage be reinstated. It is true he has not appealed; but had he thought proper to do so, it is clear that, as to him, the erasure of the plaintiff’s mortgage, being illegal and irregular, cannot affect the rights of the latter. The distinction is a very obvious one, recognized by the authorities above quoted.

It is, therefore, ordered and decreed, that the judgment of the District Court,' with regard to the appellants, be annulled and reversed, and that the plaintiff’s demand, as to them, be rejected and dismissed, with costs in both courts*

Delavigne, plaintiff, pro se.

Denis and Pitot, for the appellants'*  