“Plaintiff sues on a paving contract for *72$335-73/100 with interest, asking for a personal judgment against M. and J. Macheca with recognition of lien and privilege upon a certain piece' of property on Canal street known as the Hansell Building.”
“The Macheca’s answer denying generally the allegations of the plaintiff’s petition except in so far as admitted.”
“They admit the acquisition of the property, but aver that they purchased the same from the Canal Bank with warranty of title and with a clean mortgage certificate and ask, should they be held liable for this amount that they have judgment in their favor and against the Canal Bank.
“The Canal Bank denies that it warranted to the Macheca’s that the property was free of the privilege claimed and expressly pleads that at the time of the sale in question the alleged privilege was not recorded against the property and did not exist against it.
“There was judgment in favor of the plaintiffs and against the Macheca’s and the call in warranty was dismissed.”
There is no difference between the parties to the suit as to the facts, it being admitted that the proceedings of the Council were in strict compliance with the provisions of the City Charter and that the ordinance for the paving of Canal Street; the proposal of the contractor to do the work and the authorization of the Mayor by the Council to enter into the contract for paving were all regular in form.
The Canal Bank was the owner of the property at the time this burden was imposed upon it, and for that reason defendants claim that the obligation should have been borne by their vendors. The contractors, under the law, would not register their certificate until it had been approved by the City Engineer and must then do so within sixty days after said approval. The registry of the certificate not having been made at the time of the sale the vendors were enabled and did produce a clean mortgage certificate. The question presented for determination, succinctly put is, “was the obligation imposed and did it become auctionable at the time that the contract was entered into by virtue of a petition signed by a majority of the property holders, or whether it was *73'created and became auctionable only upon the registry of the contractors certificate duly approved by the City Engineer.
The learned counsel of the defendants urges plausible, if not ■convincingly, that the “passing of the Ordinance and the signing of the contract for the paving, imposed absolutely upon the then owner of the Hansell Building to-wit: the Canal Bank the obligation of paying for the work, whatever it might amount to for the reason” that the proceedings to affect its property with the said privilege were taken contradictorily with the Canal Bank by virtue of the publication, imposing upon the minority the wishes of the majority, this being equivalent to the assent of the minority.
The Canal Bank, therefore consented, say defendants whether voluntarily or by reason of Statutory provision and the obligation was imposed early in November, 1898.
Six months later the Canal Bank sold the property to the defendants, producing a clean mortgage certificate.
The claim of the plaintiff company is not and cannot be contested or defeated the only question for this Court to determine being the “whether the defendants or their vendor the Canal Bank, called in warranty is liable for the price of the paving.
This is a proceeding in its nature, purely in rem. Plaintiff’s right to recover as against the property is based on the fact that the property is supposed to have been enhanced in value by the completion of the paving improvement to an equal, if not greater extent, by that improvement.
Where the improvement has been completed and where the Engineer’s certificate of that completion has been registered, necessarily after completion, all after a change of ownership in the property, it would be against equity to allow the purchaser to enrich himself by enjoying the improvement made to his property and to pass back to his former vendor the burdqn on the property arising from the benefit.
“As was well said by the Supreme Court in Barber Paving Co.< vs. Watt, 51 An. p. 1354: “We think the true meaning and intent of the Act is to impose a charge for street improvement upon the property benefited by the same and not to declare whether the *74personal liability of the owner over and above and beyond the property affected. Indeed, had the Act gone to the extent of imposing a personal obligation upon the property owner, a constitutional question of serious import would be raised.”
The tax registry cases noted by defendant’s counsel, do not apply.
A tax is a fixed amount which is due and is to be recorded at a certain time.
A local assessment for paving, only becomes fixed in amount and due when the improvement has been completed and the extent of the property liability therefor has been measured and determined.
No registry of this claim was possible until these conditions precedent were complied with.
The provisions of the Consitution that “No mortgage or privilege upon immovable property shall effect third persons unless recorded or registered in the parish where the property is situated, .in the manner and within the time as is now or may be prescribed by law, except privileges for expenses of last illness, and privi-' leges for taxes, State, Parish or Municipal & etc.” is without force here since we find the paving privileges to have been registered or recorded ,in the manner and within the time prescribed by law.
The defendants are large property owners.
The improvements were in prosecution when they bought the property.
They were put on inquiry.
They ought to have known and probably did know, that the Engineers certificate, which alone could be recorded, could only issue on the completion of the paving on the property. They alone will enjoy the benefit of the improvement.
The improvement having been completed and the certificate issued and recorded during the defendant’s ownership of the property the debt was practically created during their regime and their authors are not responsible for it to them.
No attack being made on the statute and City Ordinances and proceedings here and the issue presented being the result of their *75operation properly set in motion by the constituted authorities, we are unable to follow defendants beyond them in their effort to •seek an escape from their clear intent.
Dec. 11, 1905.The lien and privilege of the paving contractor under the law, was unknown unliquidated and did not exist until the work had been completed and a certificate had issued, and in consequence, the lien and privilege bears against the property of the defendants who were the then owners.
We discover no error in the judgment of the lower court and it is hereby affirmed.