
    No. 1919.
    F. Boisdore v. George and Robert Malcolm.
    
      2kq mortgage granted by article 3282 of tlie Civil Code in favor of tlie tntor on tlie property of his ward for advances made, has effect against third parties only from the date of inscription. Tacit mortgages exist only in favor of those persons included in the exceptions established by law, and no exception is made in favor of tutors. The mortgages granted in their favor must, to havo effect, be recorded.
    The rank of mortgages, which aro required to be recorded to give them validity, must be determined by the date of inscription.
    APPEAL from Second District Court, parish of Orleans. Thomas, J.
    
      L. Charvet and E. Bermudez and 8. & J. L. Belden, for plaintiffs and appellees. L. Oastera and 0. Hunt, for defendants and appellants.
   Howell, J.

This is a controversy between mortgage creditors, in which the only question pressed on our consideration by the plaintiff and appellant is as to the necessity of inscribing the legal mortgage granted in article 3282 of the Code in favor of tutors on the property of minors, as a security for the advances which they may have made, and which is therein declared to be like the mortgage in favor of the minors. Ho contends that, because the mortgage of tutors is in letter and spirit a like mortgage with that granted in favor of minors under said article, it must be preferred over subsequent conventional mortgages exactly in the same manner as the mortgage of minors, without being inscribed; that because declared to bo like in kind by said article, it is like also in its operations,-effects, advantages and privileges, and that the provision of the law which dispenses the minor’s mortgage from inscription embraces also the tutor’s mortgage.

To this proposition wo can not assent. Article 3297 declares that among creditors, the mortgage, whether conventional, legal or judicial, has force only from the time of recording it in the manner hereinafter directed, except in the cases'mentioned below.”

Article 3298 says : “ A mortgage exists without being recorded, in favor of minors, interdicted and absent persons, on the property of their tutors, curators, and others, over whose property the law grants them a tacit mortgage, either general or special.

The mortgage of the wife on the property of the husband for her dotal rights, does also exist without being recorded.”

This latter clause has been construed to apply also to the wife’s paraphernal rights, which, it has been thought, was judicial legislation, but which may possibly be warranted by the- language of the second clause of article 3333. The reason upon which the exception •established by this article rests, .is that the persons thus protected are ■unable to act in their own behalf. This reason does not exist in the ease of tutors who act for themselves. The exception is in favor of the persons and not the rights protected. This distinction is apparent in all the legislation on the subject. In the chapter on inscription, article 3317 declares that all mortgages, whether conventional, legal or judicial are required to be recorded in the manner hereafter pro-Tided,” and article 3333, in the same chapter, directing the reinscription, exempts the mortgages in favor of the wife, for her dower and other claims, and in favor of minors, interdicted and absent persons.

And so in the act of 1843, directing how inscriptions shall be erased, this distinction is maintained In none of the provisos, exceptions or exemptions in the law is the mortgage of the tutor embraced. Sxpressio nmius est exclusio alterius.

The law seems to bo positive that among creditors mortgages will have effect only from the date of inscription, except mortgages in favor of wives, minors, interdicted and absent persons.

Judgment affirmed.  