Facts
On 20 August 1974, the Ufficio di esecuzione e fallimenti of Lugano published a list of charges related to an execution for a credit secured by a real estate mortgage. This list included several contractual real estate mortgage rights registered in the land register, as well as three legal mortgages in favor of the canton of Ticino for cantonal taxes, the municipality of Agno for communal taxes, and the Consorzio del Vedeggio for contributions.
On 28 August 1974, the Ufficio informed the mortgage creditors that the adjudicataire would have to pay, in addition to a deposit on the auction price and a guarantee for the realization costs, an amount of 76'262.10 francs to cover the legal mortgages, including notary fees. This amount included a sum of 45'815.50 francs, corresponding to a credit for notary fees, notified by notary X. after the publication of the list of charges.
X. claimed that for this amount, a legal mortgage should be recognized in his favor under Article 183 of the Ticino law applying and complementing the Civil Code (LAC). On opposition by the mortgage creditor, who argued that the claim of 45'815.50 francs did not appear in the final list of charges, the Ufficio informed X. on 17 September 1974 that his credit could not be considered as secured by a mortgage.
Considerations
The decision of the Federal Court is based on Article 138 paragraph 2 number 3 of the Federal Law on Debt Collection and Bankruptcy (DEBA), which provides that the time limit for producing property rights is peremptory. The Court considered that this principle also applies to rights secured by a valid legal mortgage without registration.
The Court also considered that only the ordinary civil judge is competent to decide whether a claim is secured by such a mortgage. The Court rejected X.'s appeal, considering…