
    LEFEVRE vs. BONIQUET'S SYNDICS & AL.
    East'n District.
    May, 1818.
    APPEAL from the court of the parish and city of New-Orleans.
    The syndics prayed for the homologation of the tableau of distribution, in which Cucullu, the other defendant, was classed as a mortgage creditor. The plaintiff, creditor by mortgage of the insolvent, under a deed of a later date than that of Cucullu, opposed the homologation.
    A jury, to whom the case was submitted, found that the mortgage to Cucullu was executed in good faith, by an act under private signature, which was recorded in due time, on the production of the original.
    An instrument, under private signature, may be recorded by the register of mortgages, on the production of the original
    
      There was judgment for the plaintiff, and the defendants appealed.
    Carleton, for the plaintiff.
    The parish court erred in giving judgment for the defendant, as the jury found that Cucullu’s claim was not recorded, upon a compliance with the only formality, on which the law authorized the record of it, viz. the production of an authentic copy of the act.
    The creditor, who wishes to have any act recorded, shall present, by himself, or a third person, to the register of mortgages, an authentic copy of the judgment or act from which the mortgage originates. Civ. Code, 456, art. 63. Mortgages, which are not recorded, or, which is the same thing, the record of which is not legally done, have not any effect against third parties. Id. 464, art. 52. No person can claim a privilege, unless he brings his case strictly under the law which grants it.
    The register of mortgages has not the power to administer oaths-nor means of verifying the signatures of the parties to an act: the law has, therefore, imposed on him the obligation of requiring, before be records an act, the production of an authentic copy of it. Such a copy will enable any interested person to consult the orb ginal, and ascertain its genuineness. But, if the register records a private instrument, which is afterwards carried away, what meatis is there of access thereto?
    In France, under a similar provision in the Napoleon code, the decisions of the higher tribunals have irrevocably settled the principle, that the record of a mortgage, l'inscription hypothecaire, is null and of no effect, if it be not attended with all the formalities which the law requires. Dict. des arrets modernes, verbo Inscription.
    Moreau, for the defendants.
    The only question in this case is, whether the record of the mortgage on the production of the original act, be not as valid as if it had been on the production of an authentic copy of it?
    The plaintiff relies to support the negative answer, on our civil code and several French decisions.
    We will endeavor to shew that these decisions support the affirmative: but it is proper that we should point out a striking difference between our code and the Napoleon code, on the subject of mortgages, and the recording of them
    Here a mortgage may be by a public act, or one under private signature. Civ. Code, 453, art. 5. In France, it must be by a public act. Nap. Code, 2127. Here the record of it is made by a transcript of the act. Civ. Code, 465, art. 52. Not so there-a note, furnished by the creditor, of the names of the parties, the amount, date, &c. is alone copied. Nap. Code, 2148. The only similarity, in the requisitions of the two codes, is the production of the act. There the production of the original en brevet, or an authentic copy is required. Id. Here an authentic copy alone is spoken of. Civ. Code, 467, art. 63.
    Is the record void for want of the production of an authentic copy, when this has been supplied by the production of the original act?
    Legislative dispositions, expressed in imperative words, do not occasion the nullity of an act in which they are disregarded, when this nullity has not been expressly pronounced. 1 Jurisp. Code Cic. 65, 69. It is otherwise when prohibitive words are used. Code Civ. 5, art. 12.
    It is true, our statute imperatively prescribes the production of an authentic copy of the act; but it does not pronounce the nullity of the re~ cord, in case this be not done.
    But, the plaintiff's counsel contends that, as the statute has provided that the rank of mortgage creditors shall be regulated by the date of the record of their respective acts, in the manner prescribed by law the record is null, if it be not attended by every requisite of the law.
    This question was agitated in France, and there are several decisions upon it. According to Merlin, they amount to this : although the omission of essential formalities, prescribed for the recording of mortgages, renders the recording void, according to the principle that formalities, which are of the substance of an act, ought to be observed, under pain of its nullity, it is otherwise with regard to formalities, which, though prescribed by law, cannot be considered as indispensable, and as part of the substance of the act. 6 Rep. de Jurisp. 221, 222, § 5, n. 3. Merlin afterwards examines the formalities, prescribed by the Napoleon code, the omission of which is a cause of nullity, without such a nullity being pronounced. Id. n. 4, 7 & 12.
    According to them, almost every particularity required in the note, which the creditor is required to furnish, must be inserted therein, excepting a few, however. So the omission of the first name, (prenom) the profession of the party, &c. is not a cause of nullity. Such particularities, though mentioned in the law, have not been considered as sufficiently important to • occasion the nullity of the act. Merlin thinks, that the authentic copy of the deed of mortgage, of which the Napoleon code speaks, is not of so material importance, that the authentic act, or even an unauthentic copy, may not be offered in its stead, and that this circumstance will not occasion the nullity of the registry. Rep. de Jurisp. verbo Inscription Hyputhecaire. It appears his opinion prevails in France. 2 Persil. Regime Hypothecate, 23, 24, n. 4, sur Part. 2148, du Cole Napoleon. He cites a judgment, in which it was decided, that the record of a judgment by default was valid, although made before tire expedition of the judgment. 1 Id. 34, n. 30 & 31. A report of that judgment is found in 40 Sirey, part. 2, 39.
    Evidence of the authenticity of the act produced is required solely for the safety of the registed of mortgages-it is not, in other respects, an essential formality. In cases of acts under private signature, on the production of the original, this officer is as perfectly safe, where the signature at the foot is known to him, as if he was transcribing a notarial copy of it, and move so : notaries ordinarily recording acts under private signature, without receiving any evidence of their authenticity.
   Mathews, J.

delivered the opinion of the court. This case must decided by the application and interpretation of a few articles of our code. It is clear that conventional mortgages may be granted either by an authentic act, made in the usual form of contracts, or by an act under private signature. Civ. Code 453, art. 5. But, judicial and conventional mortgages cannot operate against third persons, except from the day of their being legally entered in the office of the register of mortgages : and, in order to have any act registered in that office, the creditor, who desires it, is either by himself, or some other person, to present to the register an authentic copy of the judgment or act from which the mortgage originates. Id. 454 art. 14, 466, art. 63.

In applying these general provisions of law to particular cases, no obscurity or difficulty could occur, if mortgages could he granted hy authentic acts alone : for of such, copies properly certified are on all occasions used instead of the originals. Peytavin vs. Hopkins, ante 438. But our laws recognize mortgages granted by acts under private signature, as well as sales of immoveable property and slaves; the latter of which must be recorded in the office of a notary public, in order to give them effect against third persons. The rules of law relating to acts of sale (although cited and relied upon by the plaintiff's counsel) it is believed, are not appli cable to the registry of mortgages, and give no aid in the decision of the question under consideration. We will, therefore, examine only the law on the subject of mortgages, to every part of which it is our duty to give full force and efficacy; provided it can be done without leading to gross absurdity and palpable injustice.

Mortgages may he granted by acts under private signature or by those executed in a public and authentic form. When they are offered to be recorded the provision of the law is, that an authentic copy must be produced to the register, This provision is also strictly applicable to judicial mortgages; for the original judgment cannot be removed from the custody of the court, in which it was rendered. It may also be properly applied to conventional mortgages passed before a notary; because, as to such instruments, authentic copies are always legal evidence of the contracts which they purport to prove.

The only thing necessary to give effect to mortgages against third persons, is that they be recorded in the office of the register of mort- gages, in the manner prescribed by law ; which is effected by presenting copies, properly authenticated, of public acts, as judgments and notarial instruments.

But, it is self-evident, that nothing could be more absurd than to require the exhibition of an authentic copy of an act under private signature-when, it is by no means clear that such a copy can, in any way, be obtained. To interpret the law on this subject, so as to require an authentic copy of a mortgage, under private signature, would be to annul entirely that provision of the code, by which such acts are authorized, and in open violation of a sound rule, for the interpretation of laws, which requires that they should be so construed, ut res magis valeat quam pereat.

From this view of the subject, we are of opinion that, in cases of mortgages granted by acts under private signature, it is sufficient for those, who intend to claim a benefit and privilege under them, to present the original instrument to the register, to be recorded. When recorded, as directed by law, if there be nothing fraudulent in them, they ought to be held as good and valid against third persons, without any previous recording by a notary public.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and the cause sent back to that court, with directions to allow the defendant and appellant, Cucullu, the privilege of a creditor, by a mortgage legally recorded; and it is ordered, that the plaintiff and appellee pay costs.  