
    No. 2678.
    Mary Frances Taylor et al. v. Henry A. Ealer.
    The mortgage allowed bylaw, prior to the adoption of the constitution of 1868, on the property of tutors to secure the minor against an improper disposition of his estate during minority, can only be preserved by the registry of the bond cf the tutor in the mortgage office, or by the registry of an abstract of the inventory, certified to by the cleric of the court of tho parish where the succession is opened. This record must have been made prior to the first of January, 1870. Article 123 constitution of 1838; act of eighth of March, 1869, sections 10 and 11.
    The institution of suit on the tacit mortgage prior to the first of January, 1870, does not dispense with the inscription required by the act of 1869. The legal mortgage can only be preserved on the property cf the tutor by registry in the mortgage office in the manner and in accordance with the forms prescribed by the act of March 8, 1809, sec. 10 and 11.
    APPEAL from Fifth District Court, parish of East Feliciana. Posey, J.
    
      Dupree & Wedtje, for plaintiff and appellant. Kerman <& Lyons, for defendant and appellee.
   Ludeling, C. J.

The plaintiff is proceeding against a third possessor to enforce a tacit mortgage against certain immovable property, formerly belonging to lier mother and tutrix.

The claim is evidenced by a judgment of twenty-six thousand eight hundred and sixty-three dollars and fifty cents, obtained by Mrs. Taylor against her mother and tutrix, in the Second District Court of tho parish of Orleans, on August 12, 1869. The judgment was recorded in the general mortgage book for tho parish of East Feliciana, on the twenty-second of September, 1869.

This suit was filed on the eleventh of October, 1869. On tlie first day of February, 1870, the defendant filed an exception, alleging that the tacit mortgage (if any ever existed) had not been duly recorded prior to the first of January, 1870; that it had ceased to have effect as to the defendant, and praying for the dismissal of the action.

Tiie exception was sustained. The plaintiff has appealed.

The only effort made to register the alleged tacit mortgage, was the recordation of the judgment obtained in the Second District Court of the parish of Orleans, above mentioned.

Was this sufficient to preserve the tacit mortgage against the property of the defendant ?

The plaintiff contends that it is a substantial compliance with the requirements of the act of eighth of March, 1869.

The defendant, on the other hand, insists that tho act of eighth of March, 1869, provides only two modes of registering a minor’s mortgage against Ms tutor, by the registry of tho bond, when tho tutor is required to give one; and by the registry of a certificate or abstract, by tbe clerk of the district court of the amount of the property of the minor, according to the inventory on file in his office. Sections 2 and 11.

It is clear that the plaintiff has not caused to be recorded the tacit mortgage in the manner pointed out iu sections ten or eleven of the act ni 1869. It is not necessary, in this case, to decide whether or not the recording of a judgment, which recognizes a tacit mortgage, and fixes the amount and date thereof, would be a compliance with the requirements of the constitution and of the acts of 1869, because the judgment recorded in this case is not such a judgment; it does not mention the date of the mortgage; it is in the words following: “It is, therefore, ordered and decreed that the plaintiff, Mrs. Mary Frances Taylor, wife of Frank Wheaton, do recover from Mrs. Louisa Jane Nolan, as her natural tutrix, with privilege and mortgage resulting from said tutorship, the sum of twenty-six thousand eight hundred and sixty-three dollars and fifty cents, the said sum having been received by the tutrix for account of the plaintiff, with legal interest from judicial demand, and costs.” It is manifest that the registry of this jrrdgment did not inform the public at what period the tacit mortgage attached to the property of the tutrix. The plaintiff refers to the case of Drake v. Drake, 7 An. 546, to support the position that the amount of the mortgage having been fixed by the payment, the date can be ascertained aliunde.

The case of Drake «. Drake, simply announces that the minor’s right to a legal mortgage having been recognized, the date thereof was established by law. There was no question of registry in that case, for it was not essential then to record the minor’s legal mortgages. C. C. 3333. In Ford v. Ford, 7 An. 535, the same court said: “We aro not aware that we have ever sustained an inscription which was not in itself complete; and we fear that if we should depart from a reasonable exactness in such matters, and permit defective inscriptions to be eked out by evidence aliuncle, the salutary law of registry would soon lapse into uncertainty and confusion.” 4 R. 7; 2 An. 112, 610; 21 An. 204. So far as third persons are concerned the inscription is, in fact, the mortgage. C. C. 3314. Constitution of 1868, art. 123.

By the operation of the constitution and the act of 1869, the tacit mortgage may be preserved, if recorded, before the first day of January, 1870, in the manner directed by the law. A failure to inscribe it is fatal. The inscription was within the power of the plaintiff, whoso interest it was to make it; and she has no just ground of complaint, if, through negligence or ignorance, she has failed to preserve a preference conferred on her by law, in derogation of common right.

The institution of this suit before 1870 did not dispense with the inscription required bylaw. Hyde v. Bennett, et al., 2 An. 799; 520, 100; 6 An, 321; 16 An. 280.

We think the exception was properly sustained.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.

Rehearing refused.  