State ex rel. Braswell v. Hallam , 150 La. 921 ( 1922 )

By Division B, composed of Justices O’NIELL, LAND, and BAKER.

O’NIELL, J.

This is a mandamus proceeding to compel the register of conveyances to cancel the inscription of an affidavit made by Mrs. A. M: Hallam and recorded at her instance. The affidavit, which is copied in relator’s petition, is to the effect that one Leon Jacobs, on the 11th of November, 1910. accepted in waiting an offer made by Mrs. Ilallam to buy from him certain property described in the affidavit; that Jacobs refused to carry out Ms contract; and that Mrs. HallanJ placed the affidavit on record as her claim to the property, intending to institute judicial proceedings therefor. Relator had a written contract with Jacobs for the purchase of the property, dated the 17th of November, which contract was recorded on the 18th of November, 1919. Mrs. ITal-lam’s affidavit was recorded four days later. She did not record the written offer or acceptance mentioned in her affidavit, or any other contract, or written evidence of any claim upon the property.

In response to the rule to show cause why Hie affidavit should not be canceled, Mrs. Hal-lam filed three pleas or exceptions, viz.: (1) That relator had an adequate remedy at law, and that therefore the summary remedy by mandamus was not a proper remedy, to compel a cancellation of the affidavit; that Leon Jacobs was a necessary party defendant in a suit to compel a cancellation of the affidavit; and (3) that relator’s petition did not disclose a cause or right of action. At the sam'e time, but as a separate document, Mrs. Hallam filed an answer to relator’s petition. She denied that he was the owner of tlie property, but admitted tlio facts which are set forth above. She repeated her plea or exception that relator had no canse or right of action, and prayed that the alternative writ of mandamus should be rescinded and that relator’s demand should be rejected at his cost.

As the answer to the rule admitted all of the facts alleged in relator’s petition, the case was. submitted and decided on the pleadings, as it should have been. The writ of mandamus was made peremptory, and Mrs. Hallam has appealed.

[1] Her attorneys contend that only her exceptions to the proceeding were submitted for decision and that the court therefore should not have rendered judgment on the merits of the case. The entry on the minutes, of the hearing and submission of the case, was made thus:

“On exceptions; all counsel of record being present; when, after hearing the pleadings and arguments of counsel, the court took this matter under advisement.”

The record therefore shows, substantially, that, inasmuch as the admissions in the answer to the rule left nothing for decision except the questions of law presented by the exceptions, the ease was, very properly, submitted on the pleadings. There was no question of fact on which to hear evidence.

T2] The alternative writ of mandamus, according to article 841 of the Code of Practice, merely ordered the register of conveyances either to cancel the affidavit or to show cause why it should not he canceled. If he or Mrs. Hallam had given a sufficient reason why the affidavit should not have been canceled, relator’s complaint, according to article 842 of the Code of Practice, should have been dismissed at his cost. But, according to article S43, when the judge considered the answer to the rule insufficient, it was his duty to issue the peremptory mandate, ordering the register of conveyances to cancel the affidavit. The summary method by which the judge disposed of this case'was in strict accord with the provisions of the Code of Practice. If mandamus proceedings had to take the slow course of an ordinary suit, they would not afford the summary remedy and relief which they are intended to afford.

[3] There is no merit in appellant’s plea or exception that, because relator might have resorted to an ordinary suit, he was not entitled to the summary proceeding by mandamus. Article 831 of the Code of Practice declares that a judge may, in his' discretion, issue a writ of mandamus even when the complainant has other means of relief, if the slowness of an ordinary proceeding would be likely to cause such a delay as to hamper the administration of justice. If the recording of an ex parte affidavit, laying claim to another person’s property, should compel that other person to resort to an ordinary suit for slander of title, there would be no end to such suits.

[4-6] The contention that Leon Jacobs was a necessary party to this proceeding is without merit. As the plea was not argued, either orally or in the printed brief filed by appellant’s- counsel, we assume that it has been abandoned. Mrs. Hallam was made a party defendant as a matter of grace, to afford her an opportunity to make any defense that she might have had. But the fact that she was m'ade party to the proceeding is not a denial that relator was entitled to the summary remedy to compel the register of conveyances to perform his official duty. State ex rel. Macheca v. Dunn, Recorder of Mortgages, 148 La. 460, 87 South. 236.

[7] If Mrs. Hallam had placed on record the alleged acceptance in writing of the alleged offer on her part to buy the property of Leon Jacobs, and if it had been recorded before relator’s contract was recorded, his only remedy'would have been by an ordinary suit "against Mrs. Hallam and Leon Jacobs. But the register of conveyances should have refused to record the ex parte affidavit of Mrs. Hallam, which served no other purpose than to cast a cloud upon the title to the property. Mandamus was therefore the proper proceeding to compel the register of conveyances to perform his ministerial duty, to cancel the affidavit. State ex rel. Macheca v. Dunn, Recorder, 148 La. 460, 87 South. 236.

The judgment appealed from is affirmed at appellant’s cost.

Rehearing refused hy Division O, composed of Justices DAAVKINS, ST. PAUL, and THOMPSON.