Morphy J.
This suit is brought to make the defendant responsible for the consequences of erroneously erasing from his books, as recorder of mortgages, a special mortgage on real property in favor of the plaintiff. The petition sets forth in substance, that Macarty, Martin Duralde, and Etienne Carraby, sold to P. Guesnon three undivided fourths of twelve lots of ground, the other undivided fourth of which belonged to Guesnon ; that, in the division of the notes proceeding from this sale, the plaintiff became the holder of a note of $2250, drawn by Guesnon to his order, which was secured by a special mortgage on the property sold, which mortgage was duly recorded in the office of Pierre Landreaux, recorder of mortgages for the parish and city of New Orleans; that, at the request of Guesnon, the plaintiff and his co-vendors released and raised this special mortgage, so far as it affected eight of the said lots of ground, but expressly reserved their mortgage on the four other lots ; that Pierre Lan-dreaux, instead of erasing the mortgage only so far as it bore on the eight lots described in the act of release, raised and can-■celled it absolutely ; that, afterwards, P. Guesnon sold the four lots of ground on which the mortgage had been reserved, and obtained from the recorder of mortgages a certificate that the mortgage in favor of the plaintiff no longer existed, by reason and in consequence of which the plaintiff lost the security he had for the payment of his note; that, at its maturity, Guesnon [135] paid on account of it $250, and the interest up to the first of November, 1839, but that he is altogether unable to pay the balance yet remaining due; that if the mortgage on these four lots of ground had not been erased by Landreaux, the plaintiff’s security for the payment of his note would have been ample and sufficient; and that, under such circumstances, Landreaux is responsible to the plaintiff in damages, for the amount of the balance yet due to him, for which sum judgment is demanded.
To this petition the defendant filed the following exceptions, to wit:
1. That, even admitting all the allegations of the petition, no right of action is shown against the defendant.
2. That, under any circumstances the action is premature, as the plaintiff has not alleged an unsuccessful attempt to recover his debt, either by personal action against the parties liable, or by hypothecary action against the property. The district judge sustained the second of these exceptions, and dismissed the suit, whereupon the plaintiff appealed.
The liability of the recorder of mortgages to the plaintiff can be njaintained only upon the ground, that the latter has lost all recourse upon the property originally subjected to his mortgage, in consequence of its unauthorized erasure, and the delivery of a certificate to Guesnon’s vendee, declaring the property to be free of mortgage. The appellee’s counsel contends, that such is not the case; that the plaintiff’s mortgage is still in force; and that his right to pursue the property is not impaired by the mistake of the recorder. We concur in this opinion. .
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Morphy J.
This suit is brought to make the defendant responsible for the consequences of erroneously erasing from his books, as recorder of mortgages, a special mortgage on real property in favor of the plaintiff. The petition sets forth in substance, that Macarty, Martin Duralde, and Etienne Carraby, sold to P. Guesnon three undivided fourths of twelve lots of ground, the other undivided fourth of which belonged to Guesnon ; that, in the division of the notes proceeding from this sale, the plaintiff became the holder of a note of $2250, drawn by Guesnon to his order, which was secured by a special mortgage on the property sold, which mortgage was duly recorded in the office of Pierre Landreaux, recorder of mortgages for the parish and city of New Orleans; that, at the request of Guesnon, the plaintiff and his co-vendors released and raised this special mortgage, so far as it affected eight of the said lots of ground, but expressly reserved their mortgage on the four other lots ; that Pierre Lan-dreaux, instead of erasing the mortgage only so far as it bore on the eight lots described in the act of release, raised and can-■celled it absolutely ; that, afterwards, P. Guesnon sold the four lots of ground on which the mortgage had been reserved, and obtained from the recorder of mortgages a certificate that the mortgage in favor of the plaintiff no longer existed, by reason and in consequence of which the plaintiff lost the security he had for the payment of his note; that, at its maturity, Guesnon [135] paid on account of it $250, and the interest up to the first of November, 1839, but that he is altogether unable to pay the balance yet remaining due; that if the mortgage on these four lots of ground had not been erased by Landreaux, the plaintiff’s security for the payment of his note would have been ample and sufficient; and that, under such circumstances, Landreaux is responsible to the plaintiff in damages, for the amount of the balance yet due to him, for which sum judgment is demanded.
To this petition the defendant filed the following exceptions, to wit:
1. That, even admitting all the allegations of the petition, no right of action is shown against the defendant.
2. That, under any circumstances the action is premature, as the plaintiff has not alleged an unsuccessful attempt to recover his debt, either by personal action against the parties liable, or by hypothecary action against the property. The district judge sustained the second of these exceptions, and dismissed the suit, whereupon the plaintiff appealed.
The liability of the recorder of mortgages to the plaintiff can be njaintained only upon the ground, that the latter has lost all recourse upon the property originally subjected to his mortgage, in consequence of its unauthorized erasure, and the delivery of a certificate to Guesnon’s vendee, declaring the property to be free of mortgage. The appellee’s counsel contends, that such is not the case; that the plaintiff’s mortgage is still in force; and that his right to pursue the property is not impaired by the mistake of the recorder. We concur in this opinion. .
A mortgage, when duly recorded, can be erased from the books of the recorder only in one of the modes pointed out by law, that is, by the consent of the mortgagee, or by a judgment decreeing such erasure. Civil Code, arts. 3335, 3336. In the present case there was neither. The vested right which a mortgagee has acquired by the registry of his mortgage, is surely' not held at the will and pleasure of the recorder of mortgages. This officer cannot by his own act destroy the mortgage of a party, and substitute to it the guarantee of his personal or official responsibility. He can have no control over a mortgage when it has been duly recorded. It becomes the property of the mortgagee, [136] from whom it can be taken only in one of the modes pointed out by law. This court has held, that the certificate of the recorder of mortgages forms only prima facie evidence of the facts stated in it; that it is not conclusive, and may be contradicted. The mortgagee may show, that the certificate is untrue; that the recorder acted on insufficient evidence, and without his consent; or, in case of an erasure by judgment, that he was not a party to the action brought, or proceeding instituted to cancel his mortgage. 5 Mart. 626. 11 Ib. 626. In such cases, the mortgage, we think, exists unimpaired even against the innocent vendee, who has bought on the faith of a' certificate that there was no mortgage on the property. If the latter be evicted, the recorder of mortgages is responsible in damages to him. Article 3357 implies a liability towards the person who is deceived by the erroneous certificate. If nothing is said of the recorder’s responsibility towards the mortgagee for illegally cancelling a recorded mortgage, it must be because such illegal erasure cannot impair his legal rights. We are confirmed in this view of the subject, by the suppression in the Civil Code of an article which existed in the Code of 1808, sanctioning the contrary doctrine. It provided, that the immoveables and slaves, in relation to which the recorder should omit in his certificate any recorded mortgages, should remain free of such incumbrances in the hands of the new possessor, saving the responsibility of the recorder, &c. Code of 1808, p. 466, art. 60. This provision of law was entirely left out of the new Code, it appearing ho doubt inconsistent with the rights of the mortgagee. It has been urged that, as conventional mortgages have effect against third persons only from the date of their inscription upon the books of the recorder of mortgages, their effect necessarily ceases the moment the inscription is erased. It is true, that it is the enregistering alone, which gives effect to mortgages against third persons; therefore, if a mortgage is not recorded at all, or is recorded for less than its real amount, the mortgage creditor acquires no right as to third persons, except for the amount mentioned in the registry made by the recorder. It was on this principle that we held in the case of Falconer's Successioti, 4 Robinson, 5, that a mortgage for $14,000, which through mistake was recorded as being [137] only $1400, was valid and binding as to third persons, only for the latter sum. For omissions or errors committed in the recording of mortgages, the recorder is clearly liable to the creditor, who, through his fault or neglect, is prevented from acquiring a legal right under his mortgage against third persons; but it is otherwise, we think, when a correct registry has been made. Its effect does not cease because the recorder, through error or design has erased it, and delivered a certificate declaring “ that it no longer exists.” Such acts on his part cannot destroy or impair the vested right of the mortgagee, but they will render him liable in damages to the person who has been deceived by his certificate. If the party whose mortgage has been erroneously erased, could at once sue the recorder of mortgages for indemnity, what would be the measure of such indemnity? The amount of a mortgage cannot always be considered as that of the real loss and injury, which a mortgagee sustains in consequence of its erasure. The property may have fallen very much in value ; it may have been originally mortgaged for a sum greatly exceeding its value; it may be subject to other mortgages anterior to that which has been erased, so as to render the latter mortgage of little or no value, &c. Is the recorder, under any circumstances, to pay to the mortgagee the full amount of his claim, that is, much more than he could ever have made out of the property subject to his mortgage ? He would be liable, we apprehend, only for the loss really sustained. Upon the whole, we are by no means prepared to say, that the plaintiff has lost all recourse upon the property mortgaged to him. It is true, that his recourse may have been rendered more difficult and expensive, in consequence of the acts of the defendant. Such damages as he may sustain in consequence thereof, he will probably be entitled to recover; but these can be ascertained only after he shall have pursued his mortgage claim. He cannot as yet be said to have suffered any loss; and cannot, therefore, maintain the present action.
Judgment affirmed.