ON REHEARING.
1. The warranty clause in an act oí sale is not alone intended or meant to show that no mortgages or other encumbrances appear on the Parish records, but is intended to protect the vendee against any claim in rem or any claim operating as a privilege on the property which he buys and of which he has had no means of ascertaining either by reason of non-registry or other cause.
2. When property is sold after contract for paving is perfected, but prior to the registry of the City Engineer’s certificate accepting and fixing liability for paving, the vendee escapes the charge resting on the property and his vendor must protect' him under the warranty clause of the act of sale.
ESTOPINAL, J.A second examination of this case has led us to the conclusion that we erred in our original opinion in denying to defendants' their demand in warranty against the Canal Bank, their vendor and warrantors of the property subject to the paving privileges, which amounts to Three Hundred and Thirty-three dollars'and Seventy-three cents ($333.73).
The correctness of the preliminaries by the City providing for the paving, the acquiesence, of the required number of tax payers or property holders, and the amount of the claim is conceded or at any rate there is no difference between the parties as to these facts and their legallity. Nor is there any difference as to the absolute right of plaintiff company to recover, the only question being as to whether it shall recover from the Canal Bank, owner of the property at the time paving work was commenced, *76or from M'& J. Macheca, defendants here who became the owners shortly before or after the work was completed and before the registry of the City Engineer’s certificate, and, if from the defendants, should they be entitled to recover under their warranty deed, from their vendor, the Bank.
The recital in the act of sale that the property is sold with all legal warranties and full subrogation and substitution, is meaningless, unless it be intended as a protection to the vendee from just conditions as present themselves here.
The defendant bought the property free of all incumbrances, and the certificates obtained from the Mortgage Office so evidenced.
The warranty clause in the act is not alone intended or meant to show that no mortgage or other encumbrances appear on the Parish records, but is intended to protect the vendee against any claim in rem or any claim operating as a privilege on the property which he buys and of which he has had no means of ascertaining either by reason of non-registry or other cause.
We correctly held that the claim was actionable only upon registry, but erred in holding that the burden was only imposed on the property at the time of registry.
We had not, evidently, attached sufficient importance to this feature or else we should have reached a different conclusion in our first opinion. We are now of the opinion that the burden was imposed upon the property the moment the City Council, after submission of the question to the property owners of the paved section, entered into a contract for the paving.
Council for defendants very pertinently suggest that if it be true that the burden of this obligation rested upon the property at the time of the sale, how can the seller hope to escape from its legal and contractual obligations of warranty.
At the time of the sale to defendants the work of paving was in,progress if not completed, and the Canal Bank would have had to pay the paving claim, the property being already burdened.
It is plain therefore, that the burden was one intended to be covered by the warranty clause of the act of sale.
April 2, 1906. Writ refused May 12, 1906.The claim of the paving contractor, though actionable or enforceable upon registry, was still a complete burden on the property operating as a lien thereon from the instant the contract between the City and contractors was perfected.
The property was not therefore, in truth and in fact free of all ascertainable incumbrances, under which conditions it was bought and paid for by the defendants, but there existed a charge upon or against it for which, as well as for all others, the vendor bound himself to relieve and protect his vendee. R. C. C. 2501-5502.
It is now ordered, adjudged and decreed that our former judgment, in so far as it decrees in favor of plaintiff and against the defendants, remains undisturbed; that insofar as it dismisses defendant’s demand against the Canal Bank, their warrantor, it is now avoided and set aside, and it is now ordered, adjudged and decreed that the defendants do have and recover of the Canal Bank, called in warranty, the sum of Three Hundred and Thirty-three Dollars and Seventy-three cents ($333,73), with 6% interest from December 4, 1899, costs', of both courts to be paid by Warrantor and so amended our former decree is affirmed.