Opinion
No. 48620.
March 29, 1967.
In re: Erwin A. Huss applying for writ of review to the Court of Appeal, Second Circuit, Parish of Caddo.
Writ refused. The result is correct.
SANDERS, J., is of the opinion a writ should be granted. This case involves an innocent third party purchasing property in reliance upon a judgment of a court of competent jurisdiction cancelling a mortgage in a proceeding in which the named mortgagee filed an appearance. The Court of Appeal decision conflicts with the jurisprudence of this court. See Delavigne v. Gaiennie, 11 Rob. 171; Guesnon v. Dashiell, 17 La. 194; and Adams v. Preston, 22 How. 473, 490, 63 U.S. 473, 490, 16 L.Ed. 273, 278. See also 2 Planiol, Civil Law Treatise, (Translation by Louisiana State Law Institute) Nos. 3069-3072.
Cases reaching a result contrary to those cited are of two classes: (1) cases of fraudulent record cancellations, not involving reliance on a court judgment. See, e.g., Zimmer v. Fryer, 190 La. 814, 183 So. 166. (2) cases in which a judgment of cancellation was rendered by a court held to lack jurisdiction. See Horton v. Cutler, 28 La.Ann. 331 (on rehearing).
The applicant is entitled to a writ as a matter of right to reconcile the jurisprudence, but Justice Sanders expresses no opinion at this time as to how the conflict in the jurisprudence should be resolved.