
    
      FLORANCE vs MERCIER.
    
    APPEAL FROM THE COURT OF THE FIRST DISTRICT.
    The recorder of mortgages is forbidden to refuse or delay the recording of any instrument, importing or stipulating a privilege or mortgage, presented to him for that purpose; but must do it in the order- of time, and without leaving any blank space between the acts, as presented.
    So where a builder contracts with the owner to build a house, and enters into a written agreement with third persons to slate iU-the former acquires a privilege, to which the latter on certain events happening, may be subi-o-gated.
    The builders and material men’s privilege must be recorded, in the office of the recorder of mortgages, to have effect against third persons.
    The recorder of mortgages is liable in damages to the party aggrieved, for omitting to record, and cannot cancel a mortgage without the party, whose right is thereby destroyed, has heenheard
    The plaintiff alleges he has applied to the defendant, who is recorder of mortgages for the city and parish of New Orleans, for a certificate to shew there is no privilege or mortgage on a house and lot belonging to him-, on the corner of New Levee and Julia streets, except one in favor of the Bank of the United States, and the recorder refuses to grant the certificate, in the form he requires it. He prays that the recorder may be compelled to grant the certificate, and pay him $500 damages for the refusal and delay.
    The recorder in his answer says, he has always been ready and willing to grant the certificate, according to the tenor of his books. But that there is a builder, or undertakers core-tract with certain persons to slate the roof of the house, built on the plaintiffs lot, which is recorded in his office, importing a uen on the house, which it is his duty to set forth in the cer-J tificate.
    Eastern District,
    
      June 1831.
    Jt Was admitted on the trial, that this instrument had been recorded, “on the 4th of March, 1829, and cancelled by the recorder of mortgages on the 18th of June, 1830, on production to him of proof, that the sum therein stipulated had been paid.” And also, that O. Fagan, one of the persons who contracted to slate the house was dead, and Hunter, the other one, was absent.
    The district judge gave judgment, that the recorder should omit the huilder and undertakers act in his certificate, on the ground “ that the recording it, created no lien or privilege whatever, upon either the lot or building” — “ and that the transfer of property ought not to be embarrassed by the recording such acts, &c.”
    The defendant appealed.
    
      Slidell, for the plaintiff.
    
      Mercier and Dennis for defendant.
   Martin, J.

delivered the opinion of the court.

Roe •& Allison, having undertaken to build a house for the plaintiff, contracted with Hunter & Fagen, for the slating of the roof. The latter had the contract registered by the defendant, who is register of mortgages. The plaintiff wishing to dispose of the house, applied for his certificate, and the defendant refused to give one, unless with, a mention of the contract of the slateing with the plaintiffs undertaker.

The present suit is brought to compel the delivery of a certificate, without a mention of this contract, and for damages.

The disti'ict court was of opinion, “that the defendant had mistaken the law — that it is not the recording of an account which creates a mortgage or lien — the recording gives effect to the mortgage or lien — that it was very clear, the act in the present case, gave no mortgages whatever on the bouse, and its being recorded does not help it — that the transfer of property ought not to be embarrassed by the record o 1 acts which give no lien, and the recorder ought to look to it.” The defendant was accordingly decreed to give the required certificate, and pay costs. He appealed.

The recorder of MddenStb 'refuse or delay the recording of any m-strument import-a"8 privilege “orte hfm^orthat purpose; but must of time and with-Wank^spa”! Te-Rented SCtS as

So where a bu11d_ the owner to build a ho.use> and en_ ters into an agreement • with third tlm^^brme^Tc-JTwhich thTiatter 0n certain events b^subropited”1^

materiaT^meTs privilege must be recorded m the office of the record-have etfecfafainst

mortgages is lia-the party*a|griev-record,°mandnran° not cancel a mortgage without the party whose right is thereby destroyed, has been

As this judgment acted on a privilege claimed by a third party, who was not before the court, the case must be a very plain one, if any there may be, that could authorize a deduction or diminution of his claim, without his being heard.

The defendant is forbidden to refuse, or delay in any case, the recording of acts presented to him for that purpose, (3355) and- this he must do in due order, and without leaving any ° J interval or blank space between the acts, (3356.) Not a moment is allowed him for reflection on the first act presented; if another be immediately offered, he. cannot delay either. He cannot leave any blank space or intervals for the first, and register the second, on which no doubt arises — neither can he register the second first.

But it is true, the acts which the legislature speaks of, and orders the recorder to register, must be intended to be such only, on which a privilege or a mortgage may be claimed— not love letters or challenges to fight.

In the present case, the slaters knew that the undertakers acquired under their contract a privilege, (2743) to which bv . . u ' ' » their contract with them they were,on certain eventshappen-ing, subrogated; (2744) that the above privileges could not be exercised against third persons, without being recorded, (2746). On this theypresented the contract, which was tobe the evidence of their subrogation, to the privilege forregistiy, that the neglect of this formality might not render this privilege unavailable against third parties, the registry' took ° . . J place. Were it admitted, that the recorder erred and made himself liable for damages to the"party aggrieved; we cannot see that the case authorizes us to destroy whatever right the slaters may have acquired by the registry, without they being heard, or having had the opportunity of being so. We ° ,. . . ° , , . think the district judge erred m doing so.

Were we of opinion that he is liable in damages, as the judgment does not decree any, and the appallee has not asked us to amend the judgment, we cannot do it.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reverse¿ an(j that there be judgment for the defendant, with costs J J ° in both cases,  