*40OPIIIOH.
By his Honor
John 3t. Paul.Plaintiff aoquirad a mortgage and randor'a lian upon defendant'a property, and thereby a lion on the fire insurance covering same (Act 868 Of 1914 p. 689)
Ihe property was damaged by fire, and plaintiff oolleoted the unt of the loas; which (with the consent of defendant) it Imputed to partial extinguishment of a certain open aooount due It by defendant,
Bendish A He mande* were employed to repair the fire damage and started to do so. When they had practically completed the work (that is to say #248 out of #296) another fire occurred; and again plaintiff oolleoted the amount of the loss. This amount it now imputed (with the consent of defendant) in part to the final extinguishment of the open aooount, and the rest upon the mortgage note.
Plaintiff then foreclosed, but the prooeeds of sale did not suffice to extinguish both the mortgage, and the lien which Bendish A Hernandez had in the meantime recorded against the property; whereupon plaintiff took this rule to cancel the latter's lien on the ground that it was not recorded in time to prime plaintiffs' claim.
II.
It is quite true that Bendish A Hernandez failed to record their lien in time to give it preference over pre-existing encumbrances. But the oircumstances under whioh that ooourred wore as follows;
I. The oontraot for repairs was made not only with the defendant, but plaintiff itself was a party thereto.
2. Bendish A Hernandez were called upon by plaintiff (in making proofs of loss for the seoond fire) to make proof concerning the work done by them; and that work was taken into consideration in adjusting the loss.
8. The proofs of loss furnished by Bendish A Hernandez were made after a promise to pay by plaintiff's secretary; and only upon *41an expresa promise by plaintiff's attorney that the olalm would be paid out of the insurance money.
This was the testimony giren in op^njoourJ (with the written oontraot before it, addressed to the and is absolutely uncontradioted, but on the contrary praotloally admitted; and evidently relying upon these promises, Bendlsh It Hernandez did not reoord their claim, but waited to be paid.
III.
Thereafter plaintiff collected the insurance money, without the knowledge of Bendlsh It Hernandez; and then flatly refused to pay the latter, who then (and then only) prooeeded to reoord their claim.
IT.
As plaintiff was a party to the oontraot with Bendlzh s> Hernandez there was no need for the latter to reoord it so as to affect plaintiff.(C. C. 8274)'
But eren if plaintiff had not been a party to the oontraot the course it pursued was such that it is now estopped from setting up the. want of registry. For where a person leads another into the belief that his claim is safe without the necessity of recording same, he at least cannot thereafter complain of the want of registry and draw for himself any advantage therefrom. Burdeau vs Dorsey, 7 Orleans Appeals 360; Mc Duffie vs Walker, 126 La 152.
The judgment of the court below(based upon other considerations not pettinent now) ordered the cancellation of the inscription purely and simply. Henoe it must be amended by providing for the payment of the claim.
Sinoe the above was written we notloe that we erroneously stated that part of the insurance money was imputed to the mortgage note. This was error; on the oontrary, plaintiff having received #1696 imputed only #1300 to the open account, which left #296 in suspense, being exaotly the amount of the Bendish claim. This oonfirms us in the conclusion that plaintiff first meant to pay the olalm, and aotually reserved the money to do so.
*42It la therefore ordered. that tha judgment appealad, fro* ha amended by adding thereto that the Clrll Sheriff he directed to pay to Bendleh It le mande x, out of the proseada of sale now In hla hands, the atm of Two landred and forty two Bollara f$£dS) and the coats of these proceedings; and as thus tus*ndad the judgment Is affirmed.