Opinion

Thrift Funds Canal, Inc. v. Foy

  • 261 La. 573
  • 260 So. 2d 628
  • 1972 La. LEXIS 5152
Court
Supreme Court of Louisiana
Filed
Mar 27, 1972
Status
Published
Author
Dixon
On the bench
Sanders, Hamlin, Dixon, Summers
Cited by
36 cases
Authority
More cited than 8.5%

conventional mortgage, as accessory security device, is founded upon a principal debt and when that debt is extinguished, the mortgage disappears

How later courts described this case

  • conventional mortgage, as accessory security device, is founded upon a principal debt and when that debt is extinguished, the mortgage disappears

Written by the judges who cited it.

The opinion

DIXON, Justice

(dissenting).

I respectfully dissent.

The majority opinion creates more problems than it solves. It makes the rank of competing mortgages depend on the mental state, of.the parties at the time the oldest mortgage is executed.

Hortman-Salmen Company, Inc. v. White, 168 La. 1057 , 123 So. 711 , the latest expression of this court on the point, seems to be squarely contrary to the conclusion 'reached by the majority, yet the majority cites the case with apparent approval.

Walmsley v. Resweber, 105 La. 522 , 30 So. 5 , supports the conclusion reached by the majority, was relied on by the Court of Appeal, and is contrary to Hortman-Salmen v. White. Our majority opinion refers to “dicta” in Walmsley v. Reswéber, but the syllabus by the court on rehearing states that “the right of the mortgage creditors second in rank is recognized as priming the mortgage first in rank to the extent that it was without consideration at the date that the mortgage creditors second in rank acquired their right.”

The problems involved in this case are discussed in 32 Louisiana Law Review, 233. One problem is the large number of presently outstanding loans in Louisiana “secured by mortgages given and recorded long before such loans were made, where the mortgage instruments say absolutely nothing about the mortgagor’s intent to secure future advances thereby.” 32 Louisiana Law Review, 233, 238. Our holding implies that these loans are unsecured in the absence of parol evidence to establish the intent of the parties at the time the mortgage was executed.

As Professor LeVan described the situation in 32 Louisiana Law Review, 233, affirming the Court of Appeal solves none of the problems that do exist in this field. In my view, we have unnecessarily created new problems.

In my opinion, Walmsley v. Resweber should be specifically overruled, Hortman-Salmen v. White should be affirmed, and the Court of Appeal in the instant case should be reversed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.