Summary
In State ex rel. Hurwitz et al. v. Recorder of Mortgages et al., 165 La. 334, 115 So. 582, judgment was rendered in favor of relators ordering the cancellation of the inscription in question, since Lotz had no lien on relators' property as security for his claim.
Summary of this case from Hurwitz v. LotzOpinion
No. 28692.
January 18, 1928. Rehearing Denied February 13, 1928.
Appeal from Civil District Court, Parish of Orleans; M.M. Boatner, Judge.
Mandamus by the State, on the relation of Albert Hurwitz and another, to compel the recorder of mortgages to cancel an inscription of an affidavit made by George A. Lotz, claiming a lien on property of relators; Lotz also being made a party defendant. Judgment for relators, and respondents appeal. Affirmed.
Michel Provosty and U. Marinoni, Jr., both of New Orleans, for appellant Lotz.
Irwin F. Williams, of New Orleans, for appellant Recorder of Mortgages.
Titche, Kiam Titche, of New Orleans, for appellees.
This is a mandamus proceeding to compel the recorder of mortgages to cancel an inscription of an affidavit made by George A. Lotz, claiming a lien on the property of the relators, described in the affidavit. Lotz was made a party defendant in the suit. His affidavit sets forth that the relators, whose lot adjoins that of Lotz, have, without right or color of right, made use of the supporting wall on the lot of Lotz, by resting the joists and steel framework in and on the wall; that the wall is not on, but 4 inches inside of, the line dividing the two lots; that the wall is worth $9,850, and Lotz's 4 inches of land on the Hurwitz side of the wall, plus the 9 inches on which one-half of the wall rests, is worth $2,166.66; and that he, Lotz, therefore has a lien on the relators' lot to secure to him, Lotz, the payment of the total valuation of $12,016.66.
Assuming, for sake of argument, that everything stated in the affidavit of Lotz is true, and that the relators are indebted to him in the amount stated, he has no lien on their property as security for the claim. The recorder of mortgages therefore had no right to record the affidavit as a lien or an incumbrance on the relators' property. Mandamus is the right remedy in such a case. Savage v. Holmes, 15 La. Ann. 334; State ex rel. Deblieux v. Recorder of Mortgages et al., 25 La. Ann. 61; Lanaux v. Recorder of Mortgages et al., 36 La. Ann. 974; State ex rel. Braswell v. Hallam et al., 150 La. 922, 91 So. 298.
The judgment appealed from, making the mandamus peremptory and ordering the recorder of mortgages to cancel the inscription complained of, is correct.
The judgment is affirmed.