Table of Contents

TITLE XIX - OF PRIVILEGES AND MORTGAGES

 

CHAPTER I - OF THE NATURE OF A MORTGAGE AND OF ITS SEVERAL SORTS

Art. 1. The mortgage is a contract by which a person affects the whole of his property or only some part of it, in favor of another, for security of an engagement, but without divesting himself of the possession thereof.

Art. 2. The mortgage is a sort of pawn, the mortgaged thing being bound for the payment of the debt or of the obligation.
It agrees with the pawn, 1st, inasmuch as both are granted to the creditors for security of their debts, 2d, inasmuch as both produce a lien on the thing which it subjects to it, and that one cannot engage the same thing to a second creditor to the prejudice of the other.
It differs from the pawn, 1st, inasmuch as the term mortgage is only applied to immoveables and slaves and that of pawn to moveables; 2d, inasmuch as in the pawn the moveables and effects which are subject to it must be put into the hands and possession of the creditor, whereas the mortgage does but affect the immoveables and slaves to the right of the creditor, without any need of putting him in possession of them.

Art. 3. The mortgage is a real right on the immoveable affected by it.
It is in its nature indivisible. It subsists for the whole in all and each of the things affected by it and on every part of them; and it follows the mortgaged property into whatever hands it may pass.

Art. 4. There are three sorts of mortgages, we call conventional mortgages that which results from the agreement of the parties.
Judicial mortgage is that which the law attributes to judgments.
And legal or tacit mortgage that which exists by virtue of law alone.

Art. 5. Conventional mortgage can be granted only by an authentic act made in the usual form of contracts or by any act under private signature.
A mortgage verbally stipulated is not valid nor is the oral proof of it admitted whatever may be the amount of the debt or obligation for which it has been stipulated.

Art. 6. There is no conventional mortgage, except that which is expressly stipulated in the act or writing made between the parties; it is never understood and is not inferred from the nature of the act.

Art. 7. They who have on the property which may be duly mortgaged only a right either depending on a condition or subject to be annulled or rescinded in certain cases, can only consent to a mortgage subject to the same conditions or to the same rescission.

Art. 8. The judicial mortgage is that which proceeds from every judgment: it is of the same nature as the conventional mortgage; it leaves the debtor in possession of all his property but it affects or makes them liable in the same manner as the conventional mortgage, to the payment of the amount for which judgment is obtained against the debtor.

Art. 9. The judicial mortgage takes place from the day when the judgment either on a hearing of the parties or by default, final or subject to an appeal, has been rendered in favor of him who obtained said judgment.  If an appeal be brought from any judgment not final and the judgment be confirmed above, the mortgage shall reascend to the day when the original judgment was rendered.

Art. 10. When in the trial of an appeal the judgment has been reversed only in certain points, the mortgage of this judgment shall subsist as to all the points which have not been reversed or changed.

Art. 11. The awards of arbitrators give a mortgage only from the day when their execution is ordered by the judge.

Art. 12. In like manner judgments rendered in the other states or territories of the United States, give a mortgage only from the day when their execution has been ordered by one of the judges of this territory.

Art. 13. Judgment obtained against a person deceased, gives a mortgage on the property personally belonging to his heir, only from the day of the judgment which ordered that they should be executed against said heir.

Art. 14. Conventional or judicial mortgages cannot operate against a third person, except from the day of their being entered in the office of the register of mortgages, in the manner and form hereafter directed.

Art. 15. The legal mortgage is that which proceeds from the law, without any express covenant of the parties, but which is notwithstanding grounded on a tacit consent which the law presumes to have been given by him on whose property it grants this mortgage; therefore it is also called in law a tacit mortgage.
Such is the mortgage which a minor has on his tutor's property from the day of his appointment; such is that which the law gives to the wife for her dowry on her husband's property.

Art. 16. There is no legal mortgages but in the cases directed by law.

Art. 17. The wife has a legal mortgage on her husband's property to wit:
1st, For the restitution of her dowry as well as for the replacing of her dotal effects alienated by her husband and which she brought in marriage, from the day of celebrating said marriage.
2d, For the restitution and the replacing of the dotal effects accrued to her during the marriage, either by succession or donation, from the day when said succession devolved or said donation took effect.
3d, To indemnify her against the debts to which she has made herself liable jointly with her husband and for the replacing of her hereditary effects alienated, from the time of her contracting said liability or from the day of the sale.

Art. 18. The mortgages which the law establishes in favor of the wife, take place not only for herself personally but also for her heirs or assigns.

Art. 19. Minors or persons interdicted or absent, have a legal mortgage on their tutors or curator's property, for surety of their administration, from the day of the appointment of said tutors or curators, and until the final settlement and closing of their accounts, and the tutors and curators of said persons have a like mortgage on their property for the security of the advances which they may have made to them.

Art. 20. There is a legal mortgage on the property of those who, without being tutors or curators, have taken upon themselves the administration of the property of minors, persons interdicted or absent, from the day when they made the first act of that administration.

Art. 21. The children of a preceding marriage, whose mother has married again, without calling on a meeting of the family, to decide whether the tutorship of said children shall be preserved to her or not, have a legal mortgage on the new husband's property, for the acts of the tutorship so unlawfully kept by their mother, from the day of celebrating the new marriage.

Art. 22. There is a legal mortgage from the day of the closing of the inventory against the survivor of the husband or wife, or against the heirs who have been entrusted, by the inventory, with the property belonging to the community or estate.

Art. 23. Co-heirs have a legal or tacit mortgage on the property which has been the object of partition, from the day of that partition, for the warranty of their respective portions, as well as for the returns of money on the shares.

Art. 24. Universal and particular legatees have a legal mortgage on the estate of him who has made the legacy, from the day of his death, for security of the delivery of said legacies by the heirs or other persons bound to pay them.

Art. 25. The territory, the different parishes, cities and other corporations, companies of trade, or navigation and all public establishments have a legal mortgage on the property of their collectors and other accountable persons from the day when they entered into office.

Art. 26. There is a legal mortgage on the property of sequestrators and guardians established by authority of justice, from the day of their appointment.  To the divers sorts of legal mortgages mentioned in this title, must be added those which may have been omitted in the above enumeration and which may have been established in other parts of the present code.

Art. 27. The legal mortgage is not required to be recorded or entered into the office of the register of mortgages.

Art. 28. A mortgage whether legal or judicial or conventional extends to all the debtor's estate, either present or to come, which may be lawfully mortgaged, unless that, with respect to the estate to come, some contrary stipulation exists.

Art. 29. Mortgages under another view, may be divided into simple mortgage and privileged mortgage.
The simple mortgage gives to the creditor, no other preference of right over his debtor's property, than that which the date of his title or of its recording, affords to him: according to this rule, the first in time is paid first.
The privileged mortgage or as it is otherwise called the privilege, is that which derives from a privileged cause, which gives a preference over the creditors who have only a simple mortgage though of a prior date.
Such is the privilege of the vender who has the preference over every other creditor for his payment, on the real property he has sold.

Art. 30. Mortgage is further divided into general and special mortgage.
The general mortgage is that which includes all the property present and to come of the debtor.
And the special mortgage on the contrary, is limited to certain property as to the property present or restricted nominally to a certain specified property.

Art. 31. The special mortgage compels the creditor to come on and to cause to be sold the thing which is thus mortgaged to him, before he can come on the other property of his debtor; but that obligation is dispensed with, if it has been stipulated that the general mortgage should not derogate from the special nor the special from the general.




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