
    No. 1373.
    Henry A. Willis vs. George E. Wasey.
    In an action to cancel the recordation of claims to real estate, based upon a contract, no judgment can be rendered, unless all the parties thereto are made defendants. Citation to one only is insufficient. Courts can not be required to decide cases piecemeal, or expose themselves to render contradictory or unavailing judgments.
    
      APPEAL from the Fourteenth District Court, Parish of Calcasieu. Read) J.
    
    
      White & Saunders and D. J5. Gorham for Plaintiff and Appellee:
    1 — ON RES JUDICATA.
    “To establish the plea of res judicata there must be an identity of parties of capacity, of object, and of cause of action.” 30 An. 861; 31 An. 685; 29 An. 772; Tr., p. 15, 16.
    “In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and determined on its merits.”
    ‘ If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceedings, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.” Louque, p. 3-47, Secs. 11, 15; 4 Wallace, 232, Hughes vs. United states; 14 Peters 156, Walden vs. Bodley; 8 An. 818, and authorities cited; 1 Greenleaf, Secs. 529, 530.
    “ Pleas like res judicata, precluding an examination of the merits, can not be aided by inference, but must bo established beyond all question.” TI. I)., p. 763, Sec. 3; uar.521; 5 An. 103.
    2 — ON JURISDICTION RATION» MATERIAS ofc RATION» PERSONAS.
    “Jurisdiction of court is to be tested by the value of the thing demanded.” 15 An. 120; 38 An. 395, 396.
    This is an action to declare null and void a recorded notice and alleged contract affecting lands worth $15,000. The value of the land gives jurisdiction to the court. 37 An. 186; 38 An. 643; ,33 An. 1351; Tr., pp. 1 to 14 inclusive.
    A real action is properly brought in the parish where the property is situated; and defendant, absentee, is properly brought into court through a cv/rator ad hoc. 38 An. 764; 39 An..312; 33 An. 170; 31 An. 540; 29 An. 817; 30 An. 879; G. I?. 163.
    This is not a personal action for a money judgment; but a real action to remove a cloud affecting real estate, and the court has jurisdiction, 38 An. 1403; 34 An. 822; Tr., p.-.
    3 — -ON NO CAUSE ON ACTION.
    “ On the trial of the exception of no cause of action the court can consider only the allegation of the petition and the exhibits referred to and made part thereof.” 30 An. 1148; 39 An. 660.
    “ On the trial of such an exception, which is in the nature of a demurrer, all aver ments of the petition are taken as true.” H. I)., p. 1169, Sec. 2; 14 L. 421; 12 An. 390; 13 An. 138.
    The allegations admitted and exhibits and deeds considered, the cause of action is plainly set forth.
    4 — ON ALLEGED EXCEPTION ON ESTOPPEL.
    An exception that plaintiff is without interest and can not stand in judgment is dilatory, must be filed in limine lites. It is too late after issue joined. 3 AC. 378; 2X. S. 389; 5 X. S. 343; 1 L. 113, 283; 41,. 328; 7U181; 2 An. 1017; 5An.3S2; 6An.538.
    Such an exception comes too late after default. 34 An. 850; 35 An. 113; 37 An. 100; 38 An. 675.
    
      If not pleaded in limine lites, it is'considered waived by the general issue. 6 An. 388; 19 D. 429; 11 An. 688, 689; 18 An. 206, 207; 3 An. 150; 6 An. 533; 23 An. 137, 207, 224.
    A general denial admits the capacity of plaintiff. 21 An. 188; 24 An. 404.
    Evidence taken by commission does not constitute judicial admissions; and is inadmissible under the pleadings. 1 Greenleaf, Sec. 205.
    Parol evidence is inadmissible to show that as to title an act is different from what it purports to be on its face. 10 Da. 181, Brown vs. Cobb; 26 An. 445; 26 An. 731; 27 An. 198; 40 An. 157.
    Without allegations of fraud, error, or simulation, parol evidence is inadmissible to contradict, vary or change a recorded deed which is conclusive evidence between the parties and privies. 1131.630; 7 N. S. 203; ID. 240; 2 D. 600; 4D.1; 9 D. 351; 11D. 276; 4B. 299.
    “ The rule is well established that unless the representation has been really acted upon, the other party acting differently, that is to say from the way he would have acted, no estoppel arises.” Bigelow on Estoppel, p. 549, and authorities cited.
    An agent may sue in his own name. 19 An. 526; 2 D. 264,
    5 — ON THE MERITS.
    “ The action of slander of title admits of three defences: (1) Denial of plaintiff’s possession; (2) denial of the slander; (3) admission of the slander.” 35 An. 355.
    “ Defendant must either admit or deny the slander; but he can not do both, for the pleas are inconsistent.” H. D., p. 1439, Sec. 2; 9 3D 714; 2 B. 331; 12 An. 873; 11 D. 188.
    “ Defendant in action of slander of title by setting up title becomes plaintiff, and he must succeed or fail on the strength of his own title, and not on the weakness of his adversary’s.” 83 An. 249.
    A public authentic act, describing property duly recorded, is a taking possession and notice to the world. 37 An. 420.
    “ A written agreement is conclusive between parties and privies, who are estopped from contradicting same.” H. D., p. 532, XV, Sec. 2, and authorities cited.
    “ In the absence of allegations of fraud, error, etc., a counter title or something equivalent is the only proof admissible between the parties or privies to the contract to prove simulation or other conditions than those expressed.” I-D D., pp. 534, 535, Sec. 4, and authorities cited; O. O. 2276; 4 An. 58, 487; 5 An. 132, 203; 11 An. 328; 14 An. 584.
    
      ** An absolute conveyance of land can not be shown by the grantor to be a grant in trustfor himself, no fraud or mistake being alleged.” Flint on Trusts, Sec. 31.
    “ Vague and inconsistent allegations can not support a petition.” H. D. 1144, No. 1, and authorities cited.
    An act sans seeingprwi can not be admitted without proof of its execution. 6 N. S. 262, Griffith vs. Towles.
    A conveyance of real estate to have effect against third parties must be properly recorded in the parish where the property is situated. 37 An. 566; O. C. 2266, 2253 ; 25 An. 290; 21 An, 591; 28 An. 807; 21 An. 427, and authorities cited; 'Acts 1855, p. 335; 2 An. 598; 6 An. 772, and authorities.
    A contract without a consideration is a nudum pactwn> and can not be enforced. Chitty on Contracts, pp. 26, 27.
    
      G. A. Fournet and Fournet & Pujo, for Defendant and Appellant,
    cited: 41 An. 694; 29 An. 821; 12 An. 191; 13 An. 89; 1 M. 87; 7 An. 89; 13 An. 260; 28 An. 419; 21 An. 3; 8 N. S. 370.
   The opinion of the court was delivered by

Bermudez, O. J.

The plaintiff brings this action to obtain the erasure, from the conveyance book in Calcasieu parish, of the recordation therein, made by the defendant, of a notice, or warning to certain parties and all it may concern, of his pretensions in or to some real estate which the plaintiff alleges to have purchased prior to said inscription, when there existed no adverse claim whatever against his vendors.

He charges that the recordation of that notice, and of the contract to which it refers, is a cloud on his property, which prevents him from freely disposing of it.

He prays for citation against the defendant, a non-resident, whom he caused to be represented by a curator ad hoc, who sets up a number of preliminary and other defences by exceptions and by answer.

From a judgment in plaintiff’s favor, this appeal is taken.

It is patent that the plaintiff claims as owner; that he avers that the nondescript contract, the recordation of which he assails, was entered into, on its face, between Geo. E. Wasey, defendant, and one Charles Winchester; but he fails to ask that the latter be cited.

Manifestly, this court can not pass upon the validity and binding effect of the acts attacked and of their recordation, unless the parties named therein be cited to answer this demand herein set up.

The authorities in support of this proposition are numerous and' indisputable. 10 R. 387; 32 An. 106; 32. An. 92; 27 An. 365, and Bonney vs. Ludeling, 41 An. 633, which recognizes them and quotes them with approval. It is therefore ordered and decreed that the judgment appealed from be reversed, and that this suit be dismissed with costs.

On Application for Rehearing.

The judgment rendered herein dismissing the suit is not to be construed as terminating the controversy. Plaintiff remains at liberty to begin new proceedings.

The non-suit is intentional. Remanding the case for the purpose of making a new party would not practically have availed the plaintiff, who, if he have legal grounds of complaint, should present them under another phase, a new material fact to occur, intervening, to serve as a solid foundation for an action, with which the parties named in the pretended contract could be legally connected, so as to have the differences between plaintiff and them finally adjudicated upon.

It may be that the non-joinder, on which the opinion is based, was not urged in limine. The attention of the court was called to it. Whether this was done in the brief or in oral argument is immaterial, for the reason that the court could have noticed it, proprio motu, and ruled as it has.

Rehearing refused.  