Valparaiso University Law Review
Spanish colonies, including the territories of Florida, Louisiana, and southwestern America, acknowledged the jurisdiction of Spanish royal decrees. The colonies approached the registration of mortgages in a similar but more tentative fashion, recognizing the distances between the borderlands and the registrar’s offices. The law developed differently in Florida and Louisiana, which were administered by a different governmental body. While the registration process was required for chattel mortgages on slaves, there is no evidence the rules were enforced or applied to other types of mortgages on personalty. However, in 1770, Louisiana adopted a filing requirement for chattel mortgages for all slaves and ships in order to protect against fraud and cheaper English black market goods. Although France assumed power in Louisiana, the territory followed Spanish law rather than French law by judicial decision. Mexico’s cessation from Spain had little effect on the orchestration of government, but Spain’s former southwestern territories continued to follow Spanish law. Mexico recognized chattel mortgages, but made no effort to enforce filing requirements in the Spanish borderlands.
Several historical theories propose the origin of the spanish chattel mortgage acts. A royal tax was placed on the sale of most goods. These sales were to be recorded by a notary and any sale not recorded was invalid, thereby encouraging the recording of sales of personal property. However, O’Reilly, charged with imposing the Spanish mercantile system on the French inhabitants of Louisiana, introduced a recording statute preceding Spain’s land registration or ship registration. Another theory suggests that O’Reilly’s Spanish chattel mortgage act was the response to an isolated economic issue in Louisiana. Because Louisiana was not self-sufficient, trade dominated by the Spanish mercantile system failed to encourage economic independence. The act created assurances of property interests and thereby allowed creditors to be secure in their transactions when offering lines of credit. The adoption of the Spanish chattel mortgages in various forms in the Spanish borderland territories precedes the common belief that chattel mortgages developed in the Northeast in the 1820s.
George Lee Flint, Jr. and Marie Juliet Alfaro, Secured Transaction History: The Impact of English Smuggling on the Chattel Mortgage Acts in the Spanish Borderlands, 37 Val. L. Rev. 703 (2003).