PRÓVOSTY, J.
[1] The object of this suit is to compel specific performance of the ágreement of the defendant, Wilder, to transfer and assign to plaintiff certain oil leases as appears by the following contract:
“Articles of agreement made and entered into this day by and between A. E. Wilder, of Homer, La., party of the first part, and J. Y. Snyder, of Shreveport, La., acting as trustee, party of the second part:
“The said A. E. Wilder, party of the first part, agrees ■ to transfer and assign certair leases he holds and owns in and around Homer, La., approximating- 20,000, twenty thousand acres, as per map now in possession of said Snyder and more clearly represented as land included-in first and second hatched lines. The said Wilder further agrees to secure leases on all of the other land within or extending into the said hatched lines as far as possible as shown on said map and to include in said transfer or assignment such leases, up to the completion or abandonment of first test well.
“In consideration of such assignment and transfer said Snyder agrees to pay said Wilder two hundred and fifty dollars ($250.00) in cash, and one thousand dollars from the proceeds of the first leases sold. On all other leases which said Snyder may sell the said Wilder shall receive one-half of the money received and one-half of any excess royalty which may be reserved by the said Snyder, except that after said Wilder has been paid $1,000.00, as above provided, then the next $10,000.00, ten ' thousand dollars, received for the sale of leases may. be applied to the drilling of a deep test well.
“On any leases not sold by said Snyder, but upon which said Snyder shall develop oil or other production, the said Snyder agrees to reserve and pay to said Wilder one twenty-fourth excess royalty.
“In ease said Snyder shall after development sell all of the remaining holdings in bulk, then the said Wilder shall receive 10 per cent, of the proceeds of such sale, and said Wilder shall after the receipt of said 10 per cent, proceeds relinquish his excess royalty of one twenty-fourth on said property in bulk so sold.
“The said Wilder further agrees to appoint and constitute the said Snyder his fiscal agent for certain leases held by the said Wilder outside of the hatched lines shown on said map, or which may hereafter be taken by said Wilder outside of such hatched lines up to the production or abandonment of the first test well. The said Wilder agrees that the said Snyder shall receive 50 per cent, of proceeds of all sales of said leases together with 50 per cent, of all excess royalties.
“Said Wilder agrees to have re-signed any leases now held not conforming to the lease blanks furnished by said Snyder, so that all leases under this agreement will eventually be taken on the blank forms furnished by said Snyder.
“Said Snyder further agrees that ho will begin operations for the drilling of a deep test well within 60 days after said Wilder has transferred and assigned to' said Snyder all the leases which Wilder can secure within the hatched lines shown on the map before referred to.
“Wherever this agreement refers to or mentions ‘Snyder’ it is understood to mean J.' Y. Snyder, trustee, and wherever this agreement refers to ‘Wilder’ it is understood to moan A. E. Wilder.
“The said J. Y. Snyder, trustee, has this day paid the said A. E. Wilder-, the sum of two hundred and fifty dollars ($250.00), the receipt of which is hereby acknowledged, being the $250.00 due A. E. Wilder under the provisions of paragraph S, page 1, of this agreement, and the failure of J. Y. Snyder, trustee, to carry out the other terms of this agreement shall act as a forfeiture of this $250.00 and nullify this agreement as to both parties.
“Thus done and signed by both parties to this agreement in presence of attesting witnesses, this 14th day of September, 1916.
“A. E. Wilder.
“J. Y. Snyder.”
An exception of no cause of action was overruled, below. It was based on the supposed vagueness of the description of the leases to be transferred. The leases were all of record, and hence for identifying them as between the parties a mere reference to them was sufficient. In the petition they [815]*815are described with, particularity. Tbe exception was properly overruled.
[2] Tbe answer denies separately every allegation of tbe petition, and tben pleads specially tbat tbe $250 mentioned in tbe contract was earnest money, and tbat, in consequence, tbe defendant was at liberty to withdraw from tbe contract by paying to plaintiff double that amount. Tbe trial court sustained the defense and ¡gave plaintiff judgment for $500, and dismissed the demand for specific performance.
Defendant answered the appeal, praying tbat the exception of no cause of action be sustained, and that otherwise tbe judgment be affirmed. We understand this to be a prayer that tbe judgment for tbe $500 be affirmed in tbe event tbe exception of no cause of action is not sustained.
We will affirm tbe judgment, but not for tbe reason of tbe said $250 having been earnest money; for in our opinion it was not. Tbe obligations evidenced by tbe contract were to be performed successively. First it was to be tbe payment of $250; tben tbe transfer; then tbe other obligations. Tbe $250 having been paid, tbe transfer has in regular order to be made. What may or may not have to be done hereafter is a matter in tbe future, and not involved in the present suit. It is a bridge to be crossed when come to. Tbe $250 was all that was required to be presently paid or done in order tbat tbe making of tbe transfer should become absolutely and immediately obligatory. It was tbe entire consideration tbe payment or tbe performance of which was to precede tbe making of tbe transfer. It was tbe total price to be paid until tbe transfer ■should have been ma,de. It could not therefore have been earnest money, since earnest money is tbe payment of a part of tbe price, either for binding tbe contract (“Quod ante pretium datur et fidem facit contractus faeti, totiusque pecunia» solvendse”), or, in tbe in-tendment of Code, art. 2463, for retaining tbe liberty “to recede from tbe promise.” Smith v. Hussey, 119 La. 38, 43 South. 902. How could Snyder recede from paying tbe amount required for obtaining tbe transfer when be bad already paid it in full? , His other obligations were only to be performed after-wards. It is only with tbe transfer we are concerned in this suit. Specific performance is not asked of anything else, non con-stat that any trouble would ever arise in connection with tbe other obligations of tbe contract.
Tbe ground on which we think tbe judgment has to be affirmed is. tbat, owing to- tbe insufficiency of tbe description of tbe leases in tbe contract, the recording of the contract was not sufficient registry to bring notice to third parties, and tbat at tbe time tbe present suit was filed and tbe notice of lis pendens recorded Wilder had already transferred most of tbe leases to tbe Atlas Oil Company, thereby putting it out of bis power to make tbe transfer to plaintiff.
The present suit was filed and tbe notice of its pendency was filed for registry on November 23, 1916.
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PRÓVOSTY, J.
[1] The object of this suit is to compel specific performance of the ágreement of the defendant, Wilder, to transfer and assign to plaintiff certain oil leases as appears by the following contract:
“Articles of agreement made and entered into this day by and between A. E. Wilder, of Homer, La., party of the first part, and J. Y. Snyder, of Shreveport, La., acting as trustee, party of the second part:
“The said A. E. Wilder, party of the first part, agrees ■ to transfer and assign certair leases he holds and owns in and around Homer, La., approximating- 20,000, twenty thousand acres, as per map now in possession of said Snyder and more clearly represented as land included-in first and second hatched lines. The said Wilder further agrees to secure leases on all of the other land within or extending into the said hatched lines as far as possible as shown on said map and to include in said transfer or assignment such leases, up to the completion or abandonment of first test well.
“In consideration of such assignment and transfer said Snyder agrees to pay said Wilder two hundred and fifty dollars ($250.00) in cash, and one thousand dollars from the proceeds of the first leases sold. On all other leases which said Snyder may sell the said Wilder shall receive one-half of the money received and one-half of any excess royalty which may be reserved by the said Snyder, except that after said Wilder has been paid $1,000.00, as above provided, then the next $10,000.00, ten ' thousand dollars, received for the sale of leases may. be applied to the drilling of a deep test well.
“On any leases not sold by said Snyder, but upon which said Snyder shall develop oil or other production, the said Snyder agrees to reserve and pay to said Wilder one twenty-fourth excess royalty.
“In ease said Snyder shall after development sell all of the remaining holdings in bulk, then the said Wilder shall receive 10 per cent, of the proceeds of such sale, and said Wilder shall after the receipt of said 10 per cent, proceeds relinquish his excess royalty of one twenty-fourth on said property in bulk so sold.
“The said Wilder further agrees to appoint and constitute the said Snyder his fiscal agent for certain leases held by the said Wilder outside of the hatched lines shown on said map, or which may hereafter be taken by said Wilder outside of such hatched lines up to the production or abandonment of the first test well. The said Wilder agrees that the said Snyder shall receive 50 per cent, of proceeds of all sales of said leases together with 50 per cent, of all excess royalties.
“Said Wilder agrees to have re-signed any leases now held not conforming to the lease blanks furnished by said Snyder, so that all leases under this agreement will eventually be taken on the blank forms furnished by said Snyder.
“Said Snyder further agrees that ho will begin operations for the drilling of a deep test well within 60 days after said Wilder has transferred and assigned to' said Snyder all the leases which Wilder can secure within the hatched lines shown on the map before referred to.
“Wherever this agreement refers to or mentions ‘Snyder’ it is understood to mean J.' Y. Snyder, trustee, and wherever this agreement refers to ‘Wilder’ it is understood to moan A. E. Wilder.
“The said J. Y. Snyder, trustee, has this day paid the said A. E. Wilder-, the sum of two hundred and fifty dollars ($250.00), the receipt of which is hereby acknowledged, being the $250.00 due A. E. Wilder under the provisions of paragraph S, page 1, of this agreement, and the failure of J. Y. Snyder, trustee, to carry out the other terms of this agreement shall act as a forfeiture of this $250.00 and nullify this agreement as to both parties.
“Thus done and signed by both parties to this agreement in presence of attesting witnesses, this 14th day of September, 1916.
“A. E. Wilder.
“J. Y. Snyder.”
An exception of no cause of action was overruled, below. It was based on the supposed vagueness of the description of the leases to be transferred. The leases were all of record, and hence for identifying them as between the parties a mere reference to them was sufficient. In the petition they [815]*815are described with, particularity. Tbe exception was properly overruled.
[2] Tbe answer denies separately every allegation of tbe petition, and tben pleads specially tbat tbe $250 mentioned in tbe contract was earnest money, and tbat, in consequence, tbe defendant was at liberty to withdraw from tbe contract by paying to plaintiff double that amount. Tbe trial court sustained the defense and ¡gave plaintiff judgment for $500, and dismissed the demand for specific performance.
Defendant answered the appeal, praying tbat the exception of no cause of action be sustained, and that otherwise tbe judgment be affirmed. We understand this to be a prayer that tbe judgment for tbe $500 be affirmed in tbe event tbe exception of no cause of action is not sustained.
We will affirm tbe judgment, but not for tbe reason of tbe said $250 having been earnest money; for in our opinion it was not. Tbe obligations evidenced by tbe contract were to be performed successively. First it was to be tbe payment of $250; tben tbe transfer; then tbe other obligations. Tbe $250 having been paid, tbe transfer has in regular order to be made. What may or may not have to be done hereafter is a matter in tbe future, and not involved in the present suit. It is a bridge to be crossed when come to. Tbe $250 was all that was required to be presently paid or done in order tbat tbe making of tbe transfer should become absolutely and immediately obligatory. It was tbe entire consideration tbe payment or tbe performance of which was to precede tbe making of tbe transfer. It was tbe total price to be paid until tbe transfer ■should have been ma,de. It could not therefore have been earnest money, since earnest money is tbe payment of a part of tbe price, either for binding tbe contract (“Quod ante pretium datur et fidem facit contractus faeti, totiusque pecunia» solvendse”), or, in tbe in-tendment of Code, art. 2463, for retaining tbe liberty “to recede from tbe promise.” Smith v. Hussey, 119 La. 38, 43 South. 902. How could Snyder recede from paying tbe amount required for obtaining tbe transfer when be bad already paid it in full? , His other obligations were only to be performed after-wards. It is only with tbe transfer we are concerned in this suit. Specific performance is not asked of anything else, non con-stat that any trouble would ever arise in connection with tbe other obligations of tbe contract.
Tbe ground on which we think tbe judgment has to be affirmed is. tbat, owing to- tbe insufficiency of tbe description of tbe leases in tbe contract, the recording of the contract was not sufficient registry to bring notice to third parties, and tbat at tbe time tbe present suit was filed and tbe notice of lis pendens recorded Wilder had already transferred most of tbe leases to tbe Atlas Oil Company, thereby putting it out of bis power to make tbe transfer to plaintiff.
The present suit was filed and tbe notice of its pendency was filed for registry on November 23, 1916. Tbe transfer to tbe Atlas Oil Company bad been made six days previously, on November 17, 1916. Tbe transfer to tbe Atlas Company was not recorded until some time later.
Tbe learned counsel for plaintiff recognize tbat ordinarily specific performance cannot be ordered when tbe defendant no longer has it in his power to perform; but they contend as follows:
That, “since nothing done after the filing of the notice of lis pendens could in any manner affect the rights of plaintiff, and since under our system of law the specific performance of the obligation to sell does not operate exclusively through judgment in personam, but by a decree of the court which acts to translate the property (Anse la Butte Oil & Mineral Co. v. Babb, 122 La. 426 [47 South. 754]), the court cannot be divested of its right to carry out the contract by the act of the defendant in parting with the subject-matter.”
[817]*817It is doubtful whether the description of the leases is sufficient even in the notice of lis pendens which was filed for registry; for while the names of the lessors and the number of acres leased are there given, the lands leased are not otherwise described than as being “particularly shown on map and plat filed ' as original No. - and maps and plats filed as original acts Nos.-of the Conveyance Records of Claiborne Parish,” and as being “situated in T. 20 N., R. 6, 7, and 8 W., T. 21 N., R. 6, 7, and 8, and T. 22 N., R. 6, 7, and 8 W., Claiborne parish.”
But, granting for argument this description to have been sufficient for letting third persons know what particular lands were involved in this suit, we think the registry came too late, as the defendant had then already alienated most of the leases and put it out of his power to make the transfer sued for.
Whether, if the contract had sufficiently described the leases for its registry to have «conveyed notice to third persons, and if the Atlas Company were a party to this suit, the court might not enforce the rights of plaintiff as of the date of this registry, according to the principle, first in registry, first in right, and on the theory of a promise of sale being equivalent to a sale even to the extent of conveying ownership, is a question that need not be considered; for the registry plaintiff is relying on is not that of the contract, hut of the lis pendens, and lis pendens operates only to prevent a future alienation by the defendant, not to undo one already accomplished. Its effect is prescribed by article 2453 of the Code, which reads:
“The thing, claimed as the property of the claimant, cannot be alienated, pending the action, so as to prejudice his right. If the judgment be rendered for him, the sale is considered as a sale of another’s property, and does not prevent him from being put in possession by virtue of such judgment.”
And the sole effect of the registry of the notice of lis pendens is to convey to third persons notice of the pendency of the suit. Act 22, p. 25, of 1904. The effect was to prevent the defendant from alienating, not to prevent the Atlas Company from recording, the title it had already acquired.
Judgment affirmed.
MONROE, C. J., takes no part, not having heard the argument.
O’NIELL, J., dissents.
DAWKINS, J., concurs in decree.