[212] JOSEPH C. RIDINGS ET AL., Admrs. of CORNELIUS F. VOORHIES, Deceased, Appts., v. W. K. JOHNSON, Err. of SAMUEL K. (See S. C. Reporter's ed. 212-225.) Pickersgill v. Brown, 7 La. Ann. 297; Spiller v. Their Creditors, 16 La. Ann. 292; Ward v. Douglass, 22 La. Ann. 463. The lien of the vendor's privilege and mortgage is prior to that of the mortgages given to secure future advances, the latter being taken with notice of the former. Smith v. Lambeth, 15 La. Ann. 566; Adama Equity action in Louisiana-jurisdiction-ap-V. Daunis, 29 La. Ann. 315; Patterson v. De la 1. An action for a cancellation of a sale of a plantation and its retrocession, and to establish the priority of a mortgage thereon and have the property sold under the mortgage, is an action in equity and not one at law. The fact that an action of nullity lies in such a case in Louisiana, where the action was brought, and that there are no courts of equity in that State does not vary the matter. 2. Courts of the United States do not lose any of their equity jurisdiction in those States where no courts of equity exist, but, on the contrary, are bound to administer equitable remedies in cases to which they are applicable and which are not adapted to a common-law action. 3. On an appeal to this court, in an equity suit, the whole case is before the court, and it is bound to decide the case so far as it is in a condition to be decided. 4. In Louisiana, since the Law of 1855, an unrecorded mortgage has no effect as to third persons not parties to the act of mortgage, even though they had full knowledge of it. 5. The requirement in that State, that a vendor's privilege must be recorded within the time allowed by law, in order to give it priority over a mortgage recorded before it, relates to the mortgages given by the vendee as well as mortgages given by the vendor. 6. In the law of real estate, this court follows the final decisions of the state courts. [No. 44.] Mr. Justice Bradley delivered the opinion [213] of the court: This case comes before us in a most unsatisfactory manner. It is an appeal from a decree dismissing a bill in equity on demurrer; and the record is grossly imperfect in omitting to set forth the documents referred to in the bill, and necessary to a fair understanding of the case; there is no opinion of the court below showing the reasons of the decree, and no brief or appearance of counsel for the appellees to explain on what grounds the bill of complaint was faulty or insufficient. It is an imposition on the court thus to throw upon it the labor of finding out for itself the questions involved, and the arguments in support of the decree of dismissal. This is specially true where, as in the present case, the system of laws out of which the controversy grows is an exceptional one and unfamiliar to the great body of lawyers and judges of the country. The leading facts of the case, as stated in the bill, are as follows: in December, 1865, the original complainant, Cornelius F. Voorhies, sold to Samuel K. Johnson, the ancestor of Submitted Oct. 29, 1888. Decided Nov. 12, 1888. one of the defendants, the Experiment planta APPEAL from a decree of the Circuit Court of the United States for the Eastern District of Louisiana, dismissing a bill in equity on demurrer. Reversed. The facts are stated in the opinion. Mr. James H. Graham for appellants: The distinction between law and equity prevails in the modes of proceedings in the federal courts sitting in Louisiana. La. Mut. Ins. Co. v. Tweed, 74 U. S. 7 Wall. 44 (19: 65); Story v. Livingston, 38 U. S. 13 Pet. 859 (10: 200); Gaines v. Relf, 40 U. S. 15 Pet. 9(10: 642); McCollum v. Eager, 43 U. S. 2 How. 61 (11: 179); Gaines v. Chew, 43 U. S. 2 How. 619 (11: 402): Generes v. Campbell, 78 U. S. 11 Wall. 193 (20: 110). The fact that a State has abolished in its Courts the distinction between cases at law and in equity has no effect as to the remedies in the federal courts. Bennett v. Butterworth, 52 U. S. 11 How. 669 (13: 859); Thompson v. Cent. Ohio R. Co. 73 U. S6 Wall. 134 (18:765); Wood v. Hennen, 9 La. Ann. 264; New Orleans Nat. Bank A880. V. Le Breton, 120 U. S. 765 (30: 821); Benjamin V. Cavaroc, 2 Woods, 168. The proceeding by executory process is not a judgment, in the sense that it can serve as a basis for the plea of res judicata. Harrod v. Voorhies, 16 La. 254; Riley v. The proceedings by executory process were illegal, being taken without a previous liquidation of the balance due. 128 U. S. U. S., Book 32. tion situated in the Parish of Avoyelles, and for part of the purchase money received from On the 6th of February, 1868, Johnson After this, Johnson dying insolvent, Payne, the other defendant, who was the head of the firm of Payne, Huntington & Co., and assignee of the mortgages and notes given to his firm, in December, 1873, sued out an ex [214] [215] ecutory process from the District Court of the The ground on which the bill thus seems to have been finally dismissed, namely, that it exhibits a case for an action at law only, and not for a suit in equity, is untenable. The prayer for a cancellation of the original sale by Voorhies to Johnson is based on the rule of law which prevails in Louisiana with regard to commutative contracts; that is, "contracts in which what is done, given, or promised by one party, is considered as equivalent to, or a consideration for, what is done, given, or promised by the other." Civ. Code, art. 1768. The Code declares that "A resolutory condition is implied in all commutative contracts, in case either of the parties does not comply with his The sale upon the executory process was engagements; in this case the contract is not made in February, 1874, and a little over a dissolved of right; the party complaining of a year thereafter, in March, 1875, Voorhies filed breach of the contract may either sue for its the original bill in this case, to which the de- dissolution with damages, or, if the circumfendant Payne demurred. The bill was then stances of the case permit, demand a specific amended by filing what is denominated in the performance." (C. C. art. 2046.) "The disrecord a supplemental bill, but which is more solving condition when accomplished, in the nature of an amended bill-setting forth | operates the revocation of the obligation, placthe facts above stated with more particularity, ing matters in the same state as though the oband praying: 1, for a cancellation of the sale ligation had not existed." The creditor seckmade by Voorhies to Johnson, and a retroces-ing to avail himself of it is obliged to restore sion of the plantation; 2, if this should be re- what he has received. (C. C. 2045.) "If the fused, then, for a decree of nullity of the ex-buyer does not pay the price, the seller may ecutory proceedings and sale to Payne, and for sue for the dissolution of the sale." (C. C. art. a recovery of the amount due on the complain- 2561.) In certain cases "The judge may grant ant's two notes, with an allowance of vendor's to the buyer a longer or shorter time, accordprivilege and mortgage with priority over the ing to circumstances, provided such term exmortgages given to Payne, Huntington & Co.; ceed not six months." (C. C. 2562.) In order 8, if the decree of nullity should be refused, to enforce the resolutory condition there must then, that the complainant might be decreed be a judicial demand and a regular adjudicato be paid out of the proceeds of the adjudica- tion. (Hennen's Digest, art. Obligations, VIII. tion to Payne, and that the latter might be con- (b), and cases there cited). This resolutory demned to pay accordingly; and 4, for general condition may be waived, or such changes may relief. have taken place that the parties cannot be put The defendants again demurred, and the de- back into the same position in which they murrer was sustained and the bill dismissed. were, or the delinquent party may have had a As the demurrer was a general one, we cannot proper excuse for want of promptness in perknow with certainty for what reason it was formance; all which things are proper to be sustained by the court. There was a motion submitted to the judgment of a court. In the for rehearing; and the grounds of that motion present case, the complainant offered by his are spread upon the record, as well as the com- bill to refund all the money he had received on plainant's brief, presented to the court on that the sale, and to give up and cancel the two unoccasion. These documents lead us to infer paid notes which he still held. Now, it seems that the principal grounds of objection to the to us perfectly clear that a suit for enforcing bill were: first, that the executory process had such a condition is eminently an equitable prothe effect of a judgment, and, being decided ceeding. The inquiry necessary to be made by a state court, could not be brought in ques- into all the circumstances of the case with a tion in a federal tribunal; second, that a pro-view to the possible exercise of discretion in ceeding to annul a sale and compel the vendee to retrocede the property should be an action at law, and not a suit in equity. The court gave the complainant leave to amend his bill by inserting a charge of fraud and a prayer for discovery, so as to give equitable jurisdiction; but this the complainant declined to do, and stood on the equity of his bill. Whereupon the following consent order was made, to wit: "On motion of the complainant and of defend-matter. Such an action lies there because ants, suggesting that the former declines con- there are no courts of equity in that State; all verting his action into one for discovery, as suits are actions at law; but, in the nature of allowed by the decree for a new trial, it is things, if full justice is to be done, some of agreed that this case be again submitted to the these actions must admit of lines of inquiry, court on the defendants' demurrer to the ju- and methods of relief which, under the Enrisdiction of the court that this is not a case inglish system, would be proper for a suit in equi[216] equity, but one at law." Thereupon the court made a final decree dismissing the original and supplemental bills, and from that decree the present appeal was taken. giving to the defendant further time, the de- ty. And it is settled law that the courts of the [217] administer equitable remedies in cases to which | Payne, Huntington & Co. in the mean time, they are applicable, and which are not adapted namely, in February, 1868, and March, 1870, to a common-law action. Thus, an equitable they having full knowledge of his right, the title or an equitable defense, though allowed to question is raised, which was once much mootbe set up in a state court, cannot be set up in ed in Louisiana, whether an unrecorded mortan action at law in the same State in the fed-gage or conveyance has priority over a subseeral courts, but must be made the subject of a quent one taken by a person who has full suit in equity. Fenn v. Holme, 62 U. S. 21 knowledge of the first. The conflict of opinHow. 481 [16: 198]; Hurt v. Hollingsworth, 100 ion probably arose from variations in the U. S. 100 [25: 569]. We have distinctly held phraseology of different laws standing concur that the equity jurisdiction and remedies con- rently on the statute book. In 1808 the first ferred by the laws of the United States upon Code was adopted, and in the section relating its courts cannot be limited or restrained by to the registering of mortgages, it was declared state legislation, and are uniform throughout that to protect the good faith of third persons the different States of the Union. Payne v. ignorant of the existence of mortgages, and to Hook, 74 U. S. 7 Wall. 425 [19: 260]. We prevent fraud, conventional and judicial mortthink, therefore, that the court erred in dis- gages should be recorded, or entered in a pubmissing the bill for want of jurisdiction. lic book kept for that purpose, within six days from their date, when made in New Orleans, and one day more for every two leagues distance therefrom; and that if such recording was made within that time, it should have effect against third persons from the date of the mortgage; but if not, the mortgage should "have effect against third persons, being bona fide, only from the day of such recording." Code of 1808, p. 464, art. 52. This law undoubtedly dispensed with inscription as against third persons having notice of the mortgage; for they could not be said to take in good faith a subsequent incumbrance antagonistic to the mortgage. But not long after the adoption of the Code (March 24, 1810), an Act was passed declaring that no mortgage, and no notarial act concerning immovable property, should have any effect against third persons until recorded in the office of the judge of the parish. 3 Martin, Dig. 138; 2 Moreau-Lislet, 285. This was certainly peremptory language, and, taken literally, gave no room for indulgence in favor of an unrecorded mortgage against third persons, whether they had knowledge of it or not. There is still another ground for this conclusion. The second prayer of the bill is for nullity of the proceedings under the executory process, and for a recovery of the amount due to the complainant as holding a mortgage su[218] perior in rank to the mortgages given to Payne, Huntington & Co. In other words, this is virtually a prayer to annul the sale to Payne, to decree priority in favor of complainant, and to have the property foreclosed and sold under his mortgage for the satisfaction of his debt. If not in words, this is the effect that would be given to the prayer in view of the prayer for general relief. Surely it cannot be disputed that this is a prayer for equitable relief. Therefore, if there was nothing more in the case than the question of jurisdiction, we should be obliged to reverse the decree at once, and send the case back for further proceedings. But on an appeal in an equity suit, the whole case is before us, and we are bound to decide it so far as it is in a condition to be decided. The bill was dismissed on demurrer for want of jurisdiction. Though the court below may have erred in dismissing it on this ground, yet if we can see that there is any other ground on which it ought to be dismissed, for example, want of equity on the merits, we must affirm the decree. This makes it necessary that we should go into a further examination of the case made by the bill and supplemental bill. As before stated, we are laboring under a great deal of embarrassment on account of the imperfect condition of the record, and the absence of any indication on the part of the defendant as to the grounds on which the bill is objected to. But we think sufficient appears to enable us to form a tolerably satisfactory conclusion. First, let us examine the main ground of complainant's claim to relief, namely: that his vendor's privilege and mortgage is superior in right to that created by the mortgages given to Payne, Huntington & Co., and hence that he is not bound by the foreclosure of their mortgages by means of the executory process. If this ground is untenable, if he has no such superior right, the main support of his case is taken away. And, of course, we must take the case as it is made by his own showing. Since, as we have seen, the complainant failed to have his act of sale, by which he re[219] served the vendor's privilege and mortgage, recorded until April, 1872, more than six years after its date, and the mortgages were given to Then came the Code of 1825, which repeated, in substance, the provision of the Code of 1808, declaring, in articles 3314 and 3315, that mortgages are only allowed to prejudice third persons when they have been publicly inscribed on records kept for that purpose; but that by the words "third persons" are to be understood all who are not parties to the act or judgment on which the mortgage is founded, and who have dealt with the debtor either in ignorance of the right or before its existence. This again opened the door for indulgence. But two years later (March 20, 1827) an Act was passed relating to conveyances in New Orleans, declaring that, whether executed before a notary or by private act, they should have no effect against third persons but from the day of their being registered. 2 Lislet, 303. And in 1855 an Act was passed declaring that no notarial act concerning immovable property should have any effect against third persons until the same should have been recorded in the office of the parish recorder or register of conveyances of the parish where the property was situated; and that all sales, contracts and judgments not so recorded should be utterly null and void except between the parties thereto; and that the recording might be made at any time, but should only affect third persons from the time of the recording. (Acts of 1855, p. 335; Rev. [220] 221] Stat. 1870, p. 617.) In the same direction, on Privileges, especially the vendor's privilege, and other privileges affecting immovable property, have undergone much the same course of [222] legislative restriction as that imposed upon mortgages. Originally nearly all privileges, being created by the law itself, were valid and effective without any public registry. such secret liens often produced unjust effects, and legislation has been resorted to for the purpose of avoiding this evil. The Civil Code of 1825 declared that "The vendor of an immovable or slave only preserves his privilege on the But Under these changing and inconstant con- But in 1869 the tide turned, and the Supreme Court of Louisiana came around to Chief Justice Merrick's view, and in the cases of Britton & Koontz v. Janney, 21 La. Ann. 204, and Harang v. Plattsmier, 21 La. Ann. 426 held to the strict construction of the law, namely: that an unrecorded mortgage was void as against third persons even though they knew of such mortgage. The same ruling was made in Rochereau v. Dupasseur, 22 La. Ann. 402. In all of these cases the prior mortgages were actually recited in the subsequent ones, and yet lost their rank as against subsequent mortgages by reason of not being reinscribed in proper time. These decisions have been followed by a long series of others to the same purport. See Levy v. Mentz, 23 La. Ann. 261; Succession of Simon, do. 534; Gaiennie v. Gai ennie, 24 La. Ann. 79; Rochereau v. Delacroix, 26 La. Ann. 584; Villavaso v. Walker, 28 La. Ann. 775; Adams v. Daunis, 29 La. Ann. 315; Watson v. Bondurant, 30 La. Ann. 11. We may therefore regard it as the settled jurisprudence of Louisiana that, at least from and since the passage of the Law of 1855, an unrecorded mortgage has no effect as to third persons not parties to the act of mortgage or judgment, even though they had full knowledge of it. The registry seems to be intended not merely as constructive notice, but as essential to the validity of the mortgage as to third persons. It is interesting to know that this result coincides with the doctrine of the French jurists, deduced from the Code Napoleon, article 2134 of which declares, that "Between creditors, a mortgage, whether legal, judicial or conventional, has no rank except from its inscription by the creditor on the records of the custodian, in the form and manner prescribed by law," saving certain enumerated exceptions, not relating to the matter in hand. See Paul Pont, Privilèges & Hypothèques, arts. 727, 728. at the office for recording mortgages, his act of recorded on the day the contract was entered | proceed to the foreclosure of their mortgages, into. All these amendments of the law have been interpreted and administered by the courts of Louisiana in such a manner as to give them their full literal effect. See Lombas v. Collet, 20 La. Ann. 79; Marmillon v. Archinard, 24 La. Ann. 610; Gay v. Bovard, 27 La. Ann. 290; Id. 243; Morrison v. Citizens Bank, Id. 401; Succession of Marc, 29 La. Ann. 412; Logan v. Herbert, 30 La. Ann. 727; Slocomb v. Rogillio, 30 La. Ann. 833; Gay v. Daigre, Id. 1007; Gallaugher v. Hebrew Congregation, 35 La. Ann. 829; Givanovitch v. Hebrew Congregation, 36 La. Ann. 272. without making Voorhies a party if their mortgages contained the pact de non alienando. But here again the defects of the record prevent us from knowing the truth; defects which the appellee, Payne, could have had remedied had he given any attention to this appeal, and required the acts of sale, and the proceedings [225] referred to in the bill of complaint, to be returned to this court. As it is, we do not know that Payne, Huntington & Co. did record their mortgages, nor whether they contained the pact de non alienando. As the case stands before us it does not appear that they were ever recorded, or that they contained the pact. If An examination of these cases shows that neither of these things took place, then the the requirement that a vendor's privilege must complainant is entitled to at least a portion of be recorded within the time allowed by law the relief which he seeks. He is entitled to (that is, within six days from date, prior to 1870; have the property foreclosed and subjected to and on the day of the date, since 1870) in or- the payment of his mortgage. For, in that der to give it priority over a mortgage record- case, being a prior mortgagee from the time of ed before it, relates to mortgages given by recording the act of sale, he is not bound by the vendee as well as mortgages given by the the proceedings on the executory process to vendor. According to the decisions, the act which he was not a party. Dupasseur v. Roof sale passes the property to the purchaser chereau, 88 U. S. 21 Wall. 130 [22: 588]; Jackwhether recorded or not, so that he can make son v. Ludeling, Id. 616 [492]. He is hardly valid mortgages on it, as well as subject it to in a position to ask for a rescission of his sale to judgments against him; but unless recorded in Johnson, whether his privilege and mortgage the office of the register of mortgages, it does have been prescribed or not, for it has been [224] not preserve the vendor's privilege. It was at held by the Supreme Court of Louisiana that the one time held otherwise, namely: that, if the parties to the sale and the recission must be the vendor's privilege was recorded simultaneously same. Augusta Ins. Co. v. Packwood, 9 La. Ann. with the act of sale (which it always is when it 75. The suit is now properly against Payne, is contained in the act of sale), the privilege was as well as the executor of Johnson, and Payne seasonably recorded to preserve it in full force. is not one of the parties to the act of sale. Rochereau v. Colomb, 27 La. Ann. 337; Jumon- However, on this point we give no opinion. ville v. Sharp, Id. 461. But these decisions The decree of the Circuit Court must be rewere overruled in subsequent cases. Gal-versed and the cause remanded, with instruclaugher v. Hebrew Congregation, 35 La. Ann. tions to overrule the demurrer, and to give the 829; Givanovitch v. Hebrew Congregation, 36 defendants leave to answer the bill, with such La. Ann. 272. further proceedings as law and equity may require. Ex parte: In the Matter of DAVID S. TERRY, (See 8. C. Reporter's ed. 289–314.) Habeas corpus-petition-contempt-jurisdic- The doctrine of the French jurists, deduced from the Code Napoleon, corresponded substantially with the decisions in Rochereau v. Colomb and Jumonville v. Sharp. The text of the Code was nearly the same as that of the Louisiana Statutes. Art. 2106 declares that "Between creditors, privileges have no effect on immovables, except when they are made public by inscription on the records of the custodian of mortgages, in the manner prescribed by law, and to be computed from the date of such inscription," subject to the exceptions enumerated, which do not affect the present 1. This court has power to issue a writ of habeas question. See Paul Pont, Priv. & Hypoth-corpus for the purpose of inquiring into the cause eques, arts. 252, 253, etc. But, of course, in the law of real estate (immovables) we are to follow the final decisions of the state courts. Thatcher v. Powell 19 U. S. 6 Wheat. 119 [5:221]; Beauregard v. New Orleans, 59 U. S, 18 How 497 [15: 469]; Suydam v. Williamson, 65 U. S. 24 How. 427 [16: 742]; Fairfield v. Gallatin Co. 100 U. S. 47 [25: 544]; Bondurant V. Watson, 103 U. S. 281 [26: 447]: Enfield v. Jordan, 119 U. S. 680 [30: 523]. From this review of the Louisiana law of registry as applied to mortgages and privileges, it is clear that Voorhies, by neglecting to record his act of sale until 1872, lost the priority of his vendor's privilege and mortgage as against Payne, Huntington & Co., provided they recorded their mortgages taken in 1868 and 1870; and, in that case, they had a perfect right to of the restraint of the liberty of prisoners in jail States. 2. If it appears from the petition itself that the party is not entitled thereto, the writ need not be awarded. 3. The power to punish for contempt is inherent in a court. 4. Writs of habeas corpus may be used to obtain the discharge of one imprisoned under the order of jurisdiction of the person or of the subject matter. 5. A breach of the peace in open court is a direct disturbance and a palpable contempt of the authority of the court. a court of the United States which does not possess ately upon the commission, in its presence, of such 7. Whether the facts justified such punishment [289] |