*879The opinion of the court was delivered by

The plaintiff brings this action to obtain the erasure, from the conveyance book in Calcasieu parish, of the recordation therein, made by the defendant, of a notice, or warning to certain parties and all it may concern, of his pretensions in or to some real estate which the plaintiff alleges to have purchased prior to said inscription, when there existed no adverse claim whatever against his vendors.

He charges that the recordation of that notice, and of the contract to which it refers, is a cloud on his property, which prevents him from freely disposing of it.

He prays for citation against the defendant, a non-resident, whom he caused to be represented by a curator ad hoc, who sets up a number of preliminary and other defences by exceptions and by answer.

From a judgment in plaintiff’s favor, this appeal is taken.

It is patent that the plaintiff claims as owner; that he avers that the nondescript contract, the recordation of which he assails, was entered into, on its face, between Geo. E. Wasey, defendant, and one Charles Winchester; but he fails to ask that the latter be cited.

Manifestly, this court can not pass upon the validity and binding effect of the acts attacked and of their recordation, unless the parties named therein be cited to answer this demand herein set up.

The authorities in support of this proposition are numerous and' indisputable. 10 R. 387; 32 An. 106; 32. An. 92; 27 An. 365, and Bonney vs. Ludeling, 41 An. 633, which recognizes them and quotes them with approval. It is therefore ordered and decreed that the judgment appealed from be reversed, and that this suit be dismissed with costs.

On Application for Rehearing.

The judgment rendered herein dismissing the suit is not to be construed as terminating the controversy. Plaintiff remains at liberty to begin new proceedings.

The non-suit is intentional. Remanding the case for the purpose of making a new party would not practically have availed the plaintiff, who, if he have legal grounds of complaint, should present them under another phase, a new material fact to occur, intervening, to serve as a solid foundation for an action, with which the parties *880named in the pretended contract could be legally connected, so as to have the differences between plaintiff and them finally adjudicated upon.

It may be that the non-joinder, on which the opinion is based, was not urged in limine. The attention of the court was called to it. Whether this was done in the brief or in oral argument is immaterial, for the reason that the court could have noticed it, proprio motu, and ruled as it has.

Rehearing refused.