Facts
The property Parcel 3998 of Section II of the Land Register of the City of Basel was encumbered in 1934 with a mortgage deed in the first rank of CHF 75,000. After the death of one of the owners, the property passed in 1949 through a partition agreement into the co-ownership of three persons with shares of one third each. One of the co-owners, Werner Hausmann, encumbered his share in 1962 with a bearer bond of CHF 35,000 in the second rank.
On November 29, 1966, Notary Dr. Andreas Saxer recorded a "supplement to the mortgage deed of CHF 75,000 in the first rank", which provided that this mortgage deed be increased by CHF 10,000 to CHF 85,000 and that the three co-owners and the wife of the co-owner Werner Hausmann be jointly and severally liable for this amount. The persons entitled from the bearer bond on Werner Hausmann's share declared in writing the "withdrawal of their current lien behind a first rank of now CHF 85,000".
Considerations
The Federal Supreme Court decided that the registered changes in the land register are to be recorded. The provision of Art. 648 para. 3 of the Swiss Civil Code, according to which the co-owners may no longer encumber the property itself with mortgages if such encumbrances exist on the co-ownership shares, does not prohibit, according to its meaning and purpose, the creation of a lien on the property itself that…