Dainow, Joseph

English

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Louisiana Law ReviewVolume 17 | Number 2The Work of the Louisiana Supreme Court for the1955-1956 TermFebruary 1957Civil Code and Related Subjects: Security DevicesJoseph DainowThis Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationJoseph Dainow, Civil Code and Related Subjects: Security Devices, 17 La. L. Rev. (1957)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol17/iss2/111957] CIVIL CODE AND RELATED SUBJECTS 331regulations by the fire marshal and board of health, recoveredjudgment for their value in Walters v. Coen.4SECURITY DEVICESJoseph Dainow*PRIVILEGESThe Revised Statutes of 1870 contained provisions1 whichcreated a special privilege in favor of attorneys "on all judg-ments" obtained by them as a security for the payment of theirprofessional fees. Under this law, it had been held that the priv-ilege did not affect "property" obtained in execution or satisfac-tion of the judgment.2 By Act 124 of 1906 this privilege wasmade operative "on all judgments obtained by them, and on allproperty recovered thereby."3 In State ex rel. Maitrejean v.Demarest4 the attorney sought the recognition of a privilegeunder this statute, on property received by the husband in apartition of the community incident to a judgment of separationfrom bed and board. The court followed the well-establishedprinciple of strict construction in the matter of privileges whichare in derogation of the general rule of proration among credit-ors. The privilege was denied because the share of the com-munity property which fell to the husband had belonged to himall along and was not "property recovered" under a judgment,within the meaning of the statute. Of course, the attorney's timeand services are the same in one case as in another; and thereis no denial of his claim as a creditor. Nevertheless, the rule ofstricti juris supports the decision in this case.CROP PLEDGEThe crop pledge has been an important security device inLouisiana agriculture because it enables the farmer to get crediton the strength of his future crop. To preserve the effectivenessof the security in the event of sale of the crop, it has been held4. 228 La. 931, 84 So.2d 464 (1955).* Professor of Law, Louisiana State University.1. LA. R.S. 128, 2897 (1870).2. Luneau v. Edwards, 39 La. Ann. 876, 2 So. 24 (1887) ; Weill v. Levi, 40La. Ann. 135, 3 So. 559 (1888).3. LA. R.S. 9:5001 (1950).4. 229 La. 300, 85 So.2d 522 (1956).LOUISIANA LAW REVIEWthat the purchaser may be held liable for loss to the creditor onthe theory that he became a joint tortfeaser with the pledgor whowrongfully made the sale.5 Since the crop pledge must be dulyrecorded, the first purchaser might have been held liable on theground of constructive notice of the public records, instead ofperforming the legal gymnastic of bending to the form of a .tortand a joint tortfeasor. Be that as it may, subsequent purchaserswere not held liable because beyond the first purchaser the prop-erty is no longer "crop" but "an article of commerce."6In Soileau v. Gibbs7 the promissory note secured by a duly re-corded crop pledge was acquired by the plaintiff, and the trialcourt held the purchasers liable on the tort theory of AlexandriaProduction Credit Association v. Horn.8 However, this was re-versed by the Supreme Court and an exception of no right ofaction was sustained on the ground that the plaintiff was not theoriginal pledgee and there was no legal or express conventionalsubrogation in his favor. On the basis of the tort and joint tort-feasor theory, there might not need to be such privity of contractto sustain liability. Accordingly, the Supreme Court's reversalis significant not only for its holding but also because it mightbe indicative of the court's pulling back a little from that tortand joint tortfeasor theory for sustaining liability of third per-sons in crop pledge cases.BUILDING CONSTRUCTION PRIVILEGESThe provisions of the Building Contract Law9 contemplatethree different fact situations: (1) where written contract andproper bond are duly executed and recorded, (2) where the con-tract has been recorded but there is something defective as tothe bond (no bond, insufficient bond, improper surety, bond notfurnished or recorded within proper time), and (3) where thereis no written contract or where the contract is not recorded.The first situation is the most regular and most protected forall parties concerned, and the principal statutory provisions forthis situation are in Sections R.S. 9:4801-4805. The particulari-5. Alexandria Production Credit Association v. Horn, 199 So. 430 (La. App.1941).6. Loeb v. Collier, 131 La. 377, 59 So. 816 (1912).7. 229 La. 976, 87 So.2d 312 (1956).8. 199 So. 430 (La. App. 1941).9. LA. R.S. 9:4801-4807 (1950).332 [Vol. XVII1957] CIVIL CODE AND RELATED SUBJECTS 333ties of the second situation are covered in Section 4806, and forthe third situation the special provisions are in Section 4812.On some matters, the statute has one rule for all three situa-tions; on several points there are separate and different ruleswhich are applicable wherever so provided. One of these pointsof difference is the time within which claims must be filed inorder to constitute valid privileges against the property. For thefirst kind of situation (proper contract and bond, duly recorded),the pertinent statutory provision in Section 4802 fixes the delayat 30 days after notice of acceptance or default. For the secondsituation (recorded contract but defect as to bond), the statutorytime for filing claims is fixed at the same delay of 30 days bySection 4806, which incorporates by cross-reference the rules ofSections 4802 and 4803. For the third situation (no written orrecorded contract), Section 4812 of the statute provides thatclaims must be filed within 60 days after last delivery of materialor last performance of service in order to constitute a privilegeagainst the property.In Schwartz Supply Co. v. Zimmerman'0 there was a recordedcontract but the contractor gave no surety bond. In due coursethe building was completed and a notice of acceptance was dulyrecorded in the proper mortgage office. When certain unpaidmaterialmen filed their claims, more than 30 days had elapsedbut less than 60. They claimed the benefit of Section 4812 allow-ing 60 days, but the court applied the 30 day term of Sections4806 and 4802, which was the proper rule for this example of thesecond type of fact situation, where there was a recorded con-tract but no bond.In reaching its decision in this case, the court seemed to relyin some measure on the rule of interpretation that laws in parimateria must be construed with reference to each other. How-ever, since Section 4806 incorporated by express cross-referencethis rule of Section 4802, there is direct and express statutorycoverage of the problem involved. In any event, it is clear thatSection 4812 was properly held inapplicable.VEHICLE CERTIFICATE OF TITLE ACTIn Commercial Securities Co. v. Hugh Roberson Motors,Inc.," an automobile dealer executed a floor plan mortgage in the10. 228 La. 861, 84 So.2d 438 (1955).11. 229 La. 959, 87 So.2d 306 (1956).LOUISIANA LAW REVIEWmorning and sold the car in question to another dealer later thesame day. The chattel mortgage was received and filed in theproper office on the following day. The trial court held that apurchaser without knowledge or notice and before the recorda-tion of a chattel mortgage obtained perfect title free and clearof the mortgage. A subsequent purchaser likewise acquired per-fect title from his author. The court of appeal reversed 12 on theground that the act provided a series of requirements culminat-ing in the issuance of an official title certificate, and in the pres-ent case the chattel mortgage had been duly received and filedprior to the application by the ultimate purchaser (third oppo-nent) for an official title certificate which then showed the en-cumbrance.The Supreme Court reversed again and reinstated the judg-ment of the trial court, citing its own decision in Hindelang v.Collard Motors, Inc. 8 Since this earlier case was decided in 1942and before the first adoption of the Vehicle Certificate of TitleAct in 1950, the decision in the present case does not directlyanswer the issues raised by the court of appeal concerning thepoint of time at which a purchaser now acquires perfect title toan automobile. Inferentially, it asserts the unchanged applica-bility of the general rules of the Civil Code on sales 14 that titlepasses when the contract is completed (and this is absolutelybeyond question after delivery and payment). Further, the pres-ent decision must be considered as classifying an automobile pur-chaser as a "third person" within the meaning of the chattelmortgage ranking provision of the Vehicle Certificate of TitleAct,15 although he has not yet complied with other provisions ofthe same statute concerning the procurement of an official titlecertificate. The present decision may create some doubts aboutthe basic policy objectives of the Vehicle Certificate of Title Act,and clarification would be in order at the first opportunity.12. 77 So.2d 591 (La. App. 1955).13. 200 La. 569, 8 So.2d 600 (1942).14. LA. CIVIL CODE arts. 1922, 1923, 2441, 2446 (1870).15. LA. R.S. 32:710 (1950), the pertinent part of which provides that thechattel mortgage is effective against "third persons" only from the time of properinscription in the office of the commissioner.334 [Vol. XVII

Civil Code and Related Subjects: Security Devices

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Civil Code and Related Subjects: Security Devices

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