United States Supreme Court Cases & Opinions

U.S. Supreme Court

Cucullu v. Hernandez, 103 U.S. 105 (1880)

Cucullu v. Hernandez

103 U.S. 105

Syllabus

1. The failure to inscribe or to reinscribe a mortgage of lands in Louisiana does not affect its validity as against the parties thereto or their heirs.

2. To secure the payment of his note, A., the owner of lands, executed a mortgage of them which was duly inscribed, but never reinscribed. He subsequently conveyed them to B., who contracted to pay the note as part of the purchase money, and, to secure it and the remainder of the purchase money, granted a mortgage of them with vendor's privilege, in the act of sale to him, which was in due time inscribed and reinscribed. After the note was overdue, B. paid interest thereon from time to time, and, to compel him to perform his contract, A. brought suit, which was pending at the time that he filed his bill of foreclosure against B. and C., the latter being the transferee of the note and mortgage executed by A.

Held:

1. That the prescription as to the note was, against A. and B., interrupted by the payment of the interest, and was suspended during the continuance of that suit.

2. That notwithstanding the lapse of more than ten years since the inscription of that mortgage, C. is entitled to priority of payment out of the proceeds of the sale of the lands.

3. A party, after contesting by prolonged litigation a claim against him, is not entitled to the benefit of art. 2652 of the Civil Code of Louisiana, and cannot cancel it by paying what it cost the party to whom it was transferred.

The facts are stated in the opinion of the Court.