
    Landreaux v. Marsoudet.
    Where a recorder of mortgages, who, on the authority and at the instance of the administrator oí a succession, illegally cancelled a mortgage, is compelled by a judgment to pay the amount of the mortgage, with interest and the costs of the suit instituted by the mortgagee, he may recover, against the administrator individually, the amount so paid, with interest from judicial demaud, and costs ut‘ suit.
    Admitting the right of an administrator, who has been condemned individually to refund to a register of mortgages an amount recovered I'rom the latter by a mortgagee whose mortgage had been illegally erased at the. instance of the administrator, to recover from the creditors of the succession to whom the amount of the mortgage liad been paid, which is not conceded, the action against the creditors would be prescribed, under art. 1176 C. C., by three years from the date of the order or judgment under which thepaymontwasmade to them.
    Interest may he allowed by way of damages.
    from the Fifth. District Court of New Orlenos, Buchanan, J.
    
      Le Qardeur, for the plaintiff.
    
      Marsoudet, appellant, pro se.
    
    
      Maurian, on the same side.
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

On the 20th January, 1847, Pierre Chigé recovered judgment, in the Fifth District Court of New Orleans, against Pierre Landreaux, who was the re'eordor of mortgages for the city -of New Orleans, for the sum of $1,279 14, with interest from judicial demand, and costs of suit; which judgment was affirmed by this court. See 2 An. p. C06.

The plaintiff, Chigé, had purchased certain real estate in New Orleans, at a judicial sale made for the purpose of effecting a partition among heirs. The purchase money was to remain in deposit, in consequence of the existence of a mortgage in favor of the Bank of Louisiana. This deposit was withdrawn without the privity of the purchaser, and an administrator who was appointed to administer the effects of the succession, after the sale to Chigé, undertook to raise the mortgage which existed in favor of the Bank of Louisiana, and, at his instance, the mortgage was cancelled accordingly, on the records of the mortgage office, The Bank of Louisiana took no part in these proceedings, and an order of seizure was issued to subject the property purchased by Chigé to the mortgage as still subsisting, and Chigé, after an unsuccessful attempt to resist the bank, was compelled again to pay for the property he had purchased, to the extent of the mortgage debt, of the bank. He brought liis action against the recorder of mortgages for having thus illegally cancelled the mortgage, and thus enabled the administrator to withdraw the purchase money deposited, and apply it to other purposes than that for which it was intended. Landreaux, the plaintiff, having paid this judgment, has instituted the present suit against the defendant, who was the administrator, who took upon himsolf to raise the mortgage in favor of the Bank of Louisiana. In this suit he seeks to recover the amount of the said judgment and costs, and the sum of $500, for expenses and damages. He obtained judgment against the defendant for the sum of $1442 95, with interest from the judicial demand, and costs: and the defendant has appealed. The case has been argued in a written brief, presented by the defendant in person. He has failed to show am fact or circumstance by which he was justified in raising the mortgage in favor of the Bank of Louisiana. Williams v. Bank of Louisiana, 17 La. 382. Bertoli v. Citizens' Bank, 1 An. p. 119. Gas Bank v. Webb, 2 An. 526. Alling v. Citizens’ Bank, ante 308.

It was on his authority and at his instance, that the recorder cancelled the mortgage on his records, by reason of which he was rendered liable to Chigé in the action which we have slated, and the defendant must stand responsible to Landreaux for having done this act. It is true that the judgment against Landreaux, was rendered on admissions of fact made by Landreaux, and that those admisssions are not binding upon the present defendant. But the facts in this case, as we understand them, and as the district judge in his opinion considered them, are as strong against the defendant as the admission made in the suit by the plaintiff; and the present action, as it stands before us, is without any defence on the merits.

The defendant called in warranty two of the creditors of the succession, to. whom, it was alleged by him, that the funds deposited by Chigé had been distributed. The district judge held that the recourse of the defendant against these parties was prescribed by lapse of time, by virtue of art. 1176 of the Civil Code. Admitting the defendant to have had any right of action against the creditors, in a case of this kind, which is not conceded, we think the proscription established by this article applies to it. The objections made to the precise amount of the judgment have been examined. The district judge has allowed the plaintiff the amount of Chigé’s judgment paid by him, with interest and costs, and has given him interest from judicial demand. Interest may be allowed by way of damages, and the amount embraced by the objections of the defendant will be but a small compensation for the expense and damage resulting from the-facts of which we have evidence before us.

Judgment affirmed.  