
    No. 1,331.
    Henry A. Willis vs. George E. Wasey.
    Mandamus is a proper remedy to compel the erasure of the inscription of an invalid, or defunct or perempted mortgage or privilege, hub the remedy cannot he invoiced as a means to avoid the effect of another contract intended to affect the property of the party com. plainant.
    An act purporting to be a mortgage, hut not inscribed in the proper hook, has no legal effect as to third parties, and hence a third party has no cause of action to require the erasure of such an inscription, by mandamus.
    APPEAL from tlie Fourteenth District Court; Parish of Calcasieu. Reed, J.
    
      White and Saunders and I). B. Gorham for Plaintiff and Appellant:
    An exception that petition shows no ground of action, admits tlie truth of all tlie allegations of the petition. 9 Ami. 9 ; 12 Ann. 190. Plaintiff’s allegation amply justify the issuance of the writ.
    Privileges are stricii juris, cannot arise from consent, hut spring from the law. 16 Ann. 107; 23 Aim. 3 ; 24 Ann. 568.
    Mortgages are slricti juris, and take effect against third persons, only from the date of tlieir inscription, in the maimer directed by law. 30 Ann. 835, and authorities cited.
    O. C. Act 2266 — “All sales contracts and judgments affecting immovables, which shall not he so recorded, shall ho utterly null and void, except between the parties thereto.” See C. O., 2242, 2246, 2253; 25 Ann. 290; 21 Ann. 591; 28 Aim. 897; 37 Ann. 568.
    The registry of a mortgage in the Book of Conveyances is without effect as to third parties. 5 Aim. 154:16 Ann. 435; 24 Ann. 78, and authorities cited.
    Wasey having parted with his title to the lands in favor of Winchester, and the latter having sold to plaintiff in good faith, whose title was duly recorded November 18, 1886, neither Wasey nor Winchester could outer iuto any contract, the recordation of which two years after plaintiff’s said recorded title, could operate as a lieu, mortgage or privilege against plaintiff’s said lands, who is an innocent third party.
    The duties of tlie clerk and recorder ar'e purely ministerial.
    “ Mandamus is the proper remedy to compel a ministerial officer to perform a purely ministerial act.” O. P. 834; Prendí vs. Prieur, Recorder, 6 R. 299; Leverich vs. Prieur, Recorder, 8 R. 97; Btate vs. Bordelon et al., 6 Ann. 68; Savage vs. Holmes, Recorder. 15 Aim. 334.
    “Tliis writ may he said to he Hie ordinary legal relief for a party wishing to obtain tho erasure of mortgage upon his property.” Savage vs. Holmes, 35 Ann. 334; Lanaux vs. Recorder, 36 Ann. 975.
    Plaintiff has caused all the parties in interest to he brought before tlie court, which is tho condition precedent to the use of tho writ, for the purpose of compelling the erasure of mortgage. 15 Ann. 335 ; 36 Ann. 970; Doblioux vs. Recorder, 25 Ann. 61.
    In a case such as tlie one at bar, plaintiff is not required to proceed via ordinairia. 15 Ann. 334; 25 Ann. 61; 36 Ami. 975.
    
      G. A. Fournel for Defendants and Appellees :
    A mandamus will not lie to cause the erasure of the recordation of an act purporting to be a claim or contract affecting real property, when there is no pending litigation or proceed-mg before tlie courts in which tho validity of tho claim or rank of the mortgage, if any, is contested.
    A mandamus will not lie merely to determine the rank or priority of mortgagos and liens.
    When the plaintiff lias other and proper remedy in the ordinary course of legal proceedings-, a mandamus Anil not issue. High on Ex. Rem., Sec. 15, p. 20; C. 3?. 830, 831.
    A mandamus is a summary proceeding, and the right to summary proceeding cannot be extended beyond the cases specially autlioriKod by laAV. 17 Ann. 156 ; C. P. 98, 170, 754, 756; 3 Ann. 434; 12 Ann. 182, 201 and 799.
    An allegation and affida\dt stating merely that “a mandamus is necessary heroin,” is insufficient. C. P. 840, 830 and 831.
   The opinion of the Court was delivered by

Poché, J.

This is a proceeding by mandamus to compel the erasure of an inscription of a certain contract between defendant and another party, alleged to be injurious to plaintiff, as the owner of a large tract of land intended by the contracting parties to be affected thereby.

The defense was by -way of an exception in which it was contended substantially that plaintiff’s petition disclosed no cause of action, and contained no averments to justify a recourse to- the summary proceeding by mandamus. ,

That defense prevailed and plaintiff ajipeals.

It is now settled beyond controversy that a mandamus will lie in favor of a party who seeks to erase tlie inscription of an invalid or defunct or perempted mortgage recorded against his property. And if the pleadings in this case clearly presented such an issue, plaintiff’s position would have been unassailable under our jurisprudence as finally established. Lanaux vs. Recorder of Mortgages, 36 Ann. 975.

But tlie record which conies up to us, and the showing made by plaintiff in bis brief and in the oral argument, leave bis proceeding stripped of two essential ingredients necessary to Lis success.

In the first place bis petition does not characterize the contract which he assails, with legal precision or accuracy; and after considering the different and various descriptions of the obnoxious contract contained therein, the legal mind is left in a state of bewildering uncertainty as to tlie nature of tlie transaction thus submitted to judicial investigation.

Xo satisfactory or definite information is conveyed as to the character or legal effect of the agreement, the inscription of w-hich is alleged to be injurious to plaintiff as the owner of the lands to be indefinitely affected thereby.

In one. part of the petition tlie contract is defined as a “pretended mortgage and lien or claim oil the land hereinabove described,” and in another place, almost in tlie same breath, it is referred to “as resulting from a contract, also recorded Avit.li and in said ■notice, pretended to have been made between said Wasey and tlie above named Charles Winchester.” (Italics are onrs.)

It is then, in another place, held up as “said claim” simply; while further on it is assailed on the ground that “ the existence of said pro-tended claim or mortgage of said Wasey operates as a cloud on petitioner’s title.”

If, after a comparison of these various averments the judge would be about to reach- tho conclusion that the leading idea was that of a mortgage, ho would have to retrace his steps when he reaches the prayer of the petition in which the recorder or cleric is ordered to cancel the inscription of the “ hereinabove described qiretended claim recorded 'in tho notarial records, •* ~ * as an encumbrance on the lands hereinabove described.”

Hence we are left in doubt as to the precise nature, character or intended legal effect of the contract which we are called on to consider. In their oral argument, appellant’s counsel spoke of the contract as a very indefinite and vague document, difficult or almost impossible to describe or define with any precision. And doubtless their defective and insufficient description of the instrument can be fairly traced and attributed to that circumstance. But, in that case, they should have annexed a copy of tho contract to .their petition, and thus have presented it to he dissected by the court.

Conceding, however, for the sake of argument, that the contract is sufficiently described as a conventional mortgage intended by the parties thereto as an encumbrance on plaintiff’s lands, the next difficulty is to ascertain under the pleadings, the manner of its inscription, so as to discuss its legal effect.

The only information whipli the petition aff ords on this subject is that tho obnoxious contract was recorded in “Book P of the notarial records of said Parish of Calcasieu.” But nothing in the record informs us as to what are the “notarial records” of that parish. Tho law provides for a book of conveyances for the inscription of transfers of immovable property, and for a book of mortgages for the inscription of mortgages, privileges, and similar encumbrances.

If the act herein assailed is shown to have been intended by the parties as a mortgage or vendor’s privilege to affect plaintiff’s lands, it cannot, by that fact alone, be injurious to plaintiff, unless it'was inscribed in the book of mortgages, and if the inscription is in any other book, plaintiff has no concern witli it, and no right to require its erasure. To justify the summary relief which ho sought it was incumbent on him to make a proper showing in his pleadings of all the requirements of. the law on the subject. And i’t is clear that a vague averment of an inscription in the “notarial records” of the parish is not sufficient.

But all doubts on the subject are removed by the statement in plaintiff’s brief that the inscription complained of is to be found only in the book of “ conveyances.”

Hence he is in this dilemma: If the act assailed is a mortgage, plaintiff has no cause of action, because it is not inscribed as a mortgage; hence it does not encumber bis lands as a mortgage or privilege; if it is not a mortgage, but some other “claim” or undefined lien, or perhaps an attempted conveyance which “operates as a cloud” on his title to the lands which he claims to own, and which are to be affected thereby, then mandamus is not the proper remedy, and iu -cither event ho must go out of court.

These considerations lead to the same conclusion reached by the district judge.

Judgment affirmed.  