
    No. 10,572.
    Joseph Raymond vs. A. J. Villeré, Register, et al.
    
      Mandamus does not lie to the Recorder of Conveyances to compel him to cancel inscriptions showing titles to real estate in certain, parties, unless it is shown conclusively by final and executory judgments' that the same have been decreed to be erased, contradictorily with the parties concerned, and that it is his ministerial duty to expunge them from the archives of his office, the less so where the relator discloses no interest.
    Parties in whose favor inscriptions exist on the conveyance books of the parish can not be forced to appear as defendants to litigate their rights of ownership or the like, in proceedings against the recorder for the cancellation of the same. They are entitled to regular process and trial.
    Exceptions to the form of the proceeding and to want of a cause of action, interposed by the parties interested, are well founded, and must be sustained in such a case.
    Engrafting ordinary suits in which titles to real estate are involved, in such a pro-; ceeding, is not permissible.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightorj J
    
    
      Joseph Maille and O. A. Breaux for Plaintiff and Appellant:
    1. The revenues of a property which belong to the owner of the property can not he seized and sold separately from the property itself. 29 An. 354.
    2. Any party in interest may proceed by rule to remove anything which illegally clouds a title. 29 An. 354.
    3. A writ of seizure and sale can not legally issue until three days after notice of the decree of court granting the writ has boon served on the debtor. 30 An. 84.
    4. The notice of judgment in executory proceedings, which must be served on the debtor three days previous to the actual seizure of the mortgaged property by the sheriff, must he signed and issued by the clerk of the court, and not by the sheriff. 30 An. 84.
    5. If such notice has been issued by tlic sheriff, and objection to it is formally made before any sale of the seized property has taken place, the objection will be sustained, and no rights or liens will accrue to the seizing creditor in virtue of the seizure. 30 An. 84.
    6. An adjudication of property under a judgment, subsequently annulled by a regular decree of court, conveys no title. 30 An. 84.
    7. When property within the parish of Orleans has been seized by the sheriff under a writ of fi. fa., and remains in his hands unsold until the return day of the writ, he must, in order thereafter to legally hold the property and thus maintain on it the lien acquired to the creditor by his seizure, make duereturn of the writ on its return day, and cause the clerk of the court to make and give to him a duly certified copy of the writ within twenty-four hours after the return of the original. Otherwise the sheriff will bo without authority thenceforth to maintain the seizure. 30 An. 84.
    8. An act of sale which contains the stipulation of a real price, no matter how fraudulent the sale may he, can not be disregarded and assailed collaterally like a simulated sale. 30 An. 84.
    
      9. Counter-letters can have no effect against creditors or bona fide purchasers. 30 An. 84.
    10. A. mortgage primarily without any consideration given to secure certain negotiable notes in the hands of any further folder, becomes a valid .mortgage in favor of any innocent third person who may acquire one of the notes before its maturity, and for value. 30 An. 84.
    11. A market house constructed on private property under contract with a municipal corporation, with the privilege of renting stalls and collecting dues during a specified period, with the consideration that the land, which is his property, and the improvements thereon, shall be conveyed to the city at the expiration of the term, becomes municipal property at the signing of the contract. State vs. Natal, No. 10,299. Supreme Court La., N. R., Nov. 18, 1889.
    
      F. Miehinard for Defendants and Appellees:
    1. A party who alleges that he has sold a property to one person, and that the title is in another, not his vendee, can not proceed by mandamus against the Register of Conveyances to erase the inscriptions of the titles of other parties to the same property, on the ground that they are mere clouds on his own title. He is without interest.
    2. In such a case mandamus will not issue when it appears that an investigation of the validity of existing titles must be had.
    3. Proof of the pendency of another proceeding, involving the validity of the-title, is a victorious answer to the application for mandamus.
    
    4. The inscription of a copy of a pretended counter-letter sixteen years after a. sale, and which, in this case, is a conditional undertaking to re-transfer the property, can have no effect in the absence of proof that the conditions have been complied with.
    5. The oath of the vendor that the copy is a correct “ copy of the original, which is mislaid and unavailable,” but which does not state that the original was-signed by the purchaser, is insufficient to give it effect.
    6. Parties holding different titles to the same property, derived from different-adjudications at different times, can not be called upon to vindicate their titles, in one and the same proceeding, in the absence of any allegation or suggestion of conspiracy or combination.
    7. A market house is not necessarily public property, and may be the subject ot private ownership.
    Application for Mandamus.
    
   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for a mandamus, to compel the Recorder of Conveyances for the parish of Orleans to cancel from his boohs several inscriptions purporting to show ownership of certain real estate in this city, in various persons, made co-defendants.

The relator was met by an exception to the form of proceeding, to a want of cause of action, and eventually a denial of right.

From an adverse judgment this appeal lies.

In order to succeed, the relator ought to have established:

1. That, having a valid cause, he had presented his claim for cancellation to the Recorder of Conveyances.

2. That it was-the ministerial duty of that officer to have made the erasures, which he arbitrarily declined.

The grounds relied on by the relator are, substantially: That he was once the owner of a certain lot and buildings thereon, which long ago he had transferred to the city of New Orleans, who presently owns the same; that since said transfer certain parties have, under judgments rendered against him, seized it and became the adjudicatees; that one of them, or his representatives, is in possession of it and enjoys the revenues yielded by it; that the judicial sales made to said' parties are radical nullities, because no writ of any kind could have been lawfully levied on said property as his, while it stood publicly recorded in the name of the city, etc.

It is manifest that, from his own statement, the plaintiff has. no interest and discloses no cause of action, as he has ceased to be the owner and is vested with no mandate to champion the rights of the city, which, if they be trod upon, will have the privilege of revendípation.

Conceding, however, that he has some interest, it is evident that ;his action is palpably one in disguise, to , annul the titles standing in the name of others to real estate, and upon which the court -.necessarily would have to pass, for the inscriptions could not be .canceled unless the titles were previously pronounced bad.

The present proceeding is nothing but a rule against a public offi.cer to compel him to perform an alleged ministerial function.

Although it be true that, for the purpose of giving a clear title -to a purchaser of property at a judicial sale, a motion to show cause ■is permissible against the parties in whose favor mortgage inscriptions exist, the rule, which is not inflexible, does not apply to parties in whose favor inscriptions appear on the Conveyance books.

Jn relation to the summary proceeding for the cancellation of mortgage inscriptions, it has been well said that the object is to compel the creditor, claiming an apparent charge, to vindicate his right, but not to oblige him to litigate it in the action in which he is called to answer, if he have a right to proceed in another form, or before another forum. Bank vs. Delery, 2 An. 650, and other •cases.

The reason is manifest that, while the Oonrt may order the erasure, it does not necessarily have to pass' on the claim or mortgage rights of the party, for, usually, it relegates both to the proceeds — the validity of the same to be subsequently determined — while in cases of cancellation of inscriptions from the Conveyance books, no such reference can take place, as the Court, previous to orderingthe erasure, must have to pronounce the titles invalid.

It would be monstrous to coerce the parties to appear on mere notice, in a controversy which, in form, is summary, and in substance has all the emblems of a real action, to litigate their titles in that hasty way.

The proper practice would be to proceed against the parties regularly, and, if desirable, to connect the Recorder of Conveyances with the proceeding.

Engrafting ordinary suits, in which titles to real estate are involved, on a summary proceeding, against an officer to require the execution of a ministerial duty, is not allowable. In such cases the defendants who would be entitled to a trial by jury, could be debarred ■of it.

We are authorized to take judicial notice of our own decisions. Poland vs. Chicago R. R. Co., 42 An. p. — . Under thatassumption we can not ignore and know that it appears by proceedings . brought in this court by Raymond, upon which we have rendered an opinion and decree, that he has taken steps in the lower court to oust the Billgery heirs from this same property. State ex rel. Raymond vs. Judge, 41 An. 951.

The present proceeding against the Recorder of Conveyances appears to be a subterfuge, to accomplish indirectly, if possible, that which could only be done and has been undertaken directly.

Had the plaintiff already obtained final and executory judgments, contradictorily with such parties, recognizing his pretensions and decreeing the cancellation of the inscriptions in question, and had he presented the same to the Recorder of Conveyances, with a demand for erasure, and had the latter refused, without good cause, to expunge the inscription, the plaintiff would have had the right to complain and would have obtained redress; but he has not established any such grievance and, in the absence of such showing, or the like, he can not obtain the relief which he seeks.

Surely, the Recorder is not at fault and the objections set up by the parties really in interest were properly sustained.

Judgment affirmed.  