On Rehearing,
ST. PAUL, J.This case Was before us already, and in a general way we adhere to the propositions of law announced in our former opinion as well as to the conclusions of fact therein reached, as far as they go. We think, however, we erred in our application of the law to the facts as found.
We had reached that point in our consideration of the case where we announced that the sale by Robert Dorsey and his wife to Louisa Jenks was neither a fraud nor a simulation, but a geunine transfer, and was subject to attack only on the ground of alleged lesion beyond moiety. To all of this we adhere.
We further held that the ground for an attack on the title could not be set up as a defense herein unless Dorsey’s suit against Jenks was notice to Burdeau and his vendor Stewart, and we held that it was not.
This was on the theory that notice was not equivalent to registry, a doctrine which has on two late occasions received the unqualified approval of the Supreme Court of the State.
But his rule has an exception, laid down in McDuffe vs. Walker, 125 La. —, that, where one has been induced by fraudulent representations and devices to leave his mortgage or title unrecorded (and the same would apply *361to a notice of suit), the fact of such non-recordation cannot be taken advantage of by the person whose representations or devices have caused the registry to be omitted.
Accordingly up to the time when counsel representing Dorsey called on counsel representing Louisa Jenks and Albert L. Stewart, and arranged to withhold suit pending an effort to effect a settlement the parties were all entitled to abide by the public records as they then stood, and the whole matter should have been allowed to remain in statu quo until these efforts had reached their fruition, or, failing therein, had been discontinued.
But Stewart and Louisa Jenks could not profit by the delay to pass the title from Jenks to Stewart in order to defeat Dorsey’s right of action against Jenks.
Again the close connection, and intimate relations existing between Stewart and Burdeau, and the circumstances under which the title passed from ■ one to the other, convince us that the latter merely holds title for the former, or at least that there exist equities between them to be adjusted according to the outcome of this controversy.
We will, therefore, proceed to adjust matters between the parties as they stood after the mortgage and before the sale by Jenks to Stewart.
We find, as a fact, that the sale of the property at the time Louisa Jenks acquired from Dorsey exceeded $1,200, whilst the mortgage debt which she assumed as the sole consideration of the transfer then amounted to only $491.00. There was, therefore, lesion beyond moiety, and the transfer must be set aside, but under Article 1880 of the Civil Code, we must proceed to an adjustment between the parties.
Now, as between Stewart (or his assignee Burdeau)- and Dorsey, the matter stands thus: Before counsel for *362Dorsey had determined to file suit, Stewart had already advanced to Louisa Jenks in the mortgage executed by her the sum of $100.00. This sum he is entitled to recover of Dorsey with legal interest from the date of the mortgage, and Dorsey may, if so advised, reclaim the sum of Louisia Jenks. As to the sum of $200.00 which Stewart afterwards paid to Louisa Jenks, for the amount paid by. Louisa Jenks on account of the original mortgage granted by Dorsey to the Homestead Association, the judgment between herself and Dorsey awards her one of the lots. On the other hand Stewart paid the balance due on that mortgage amounting to $437.20, which amount he is entitled to recover from Dorsey with legal interest from the date when the payment was made. Finally Stewart is entitled to recover of Dorsey the taxes paid by him with legal interest from the time of such payment. And, for the purpose of this suit, we treat Burdeau and Stewart as one and the same, the former being assignee and successor to all the rights of the latter herein; and we leave them to adjust matters between themselves.
In making this adjustment, it is our desire to terminate this litigation as far as possible, and our endeavor has been to give to each party whatever he may be entitled to as nearly as conditions permit at this time. If we have not succeeded in doing complete justice between them, the parties must attribute it to the conditions as brought about by their own ignorance, cupidity or want of good faith, which all together have combined to pro-due© complications by no means easy to straighten out.
The rights of Dorsey against Jenks, of Stewart against the latter, and of Stewart and Burdeau inter sese, are touched upon only incidentally and for the purpose of adjusting matters as between Burdeau and Dorsey. We do not pass judgment on those matters, neither Stewart *363aor Jenks being parties to this particular suit or to this appeal.
April 18, 1910. Writ denied by Supreme Court May 24, 1910.It is, therefore, ordered, adjudged and decreed that our former decree be set aside, and it is now ordered that in so far as the judgment appealed from rejects plaintiff’s demand to be declared owner and put in possession of the property in controversy, and in so far as the same annuls and sets aside the several transfers under which plaintiff claims, said judgment is affirmed; and, in so far as said judgment fails to adjust the rights between the parties, the same is amended so as to add thereto the following— to-wit: It is further ordered, that the said Chas. K. Burdeau do have and recover of the said Robert Dorsey the sum of one hundred dollars, with legal interest from February 18, 1907, until paid, and the further sum of four hundred and thirty-seven 20/100 dollars, with legal interest from April 26,1907, until paid; and that the right be reserved to the said Charles K. Burdeau to claim and recover of the said Robert Dorsey all the taxes paid by him, if any, on the property in controversy, with legal interest thereon from time of payment.
It is further ordered that the costs of the court below be paid by plaintiff, Chas. K. Burdeau, and the costs of this appeal by Robert Dorsey, appellee.