author: Btjchanan, J.

text:
    J. Goodloe et al. v. B. R. Rogers.
    When it may be inferred that it entered into the contemplation of the parties to a contract that a sugar mill and engine, which the manufacturer undertook to put up within a given time, on the plantation of a planter, were for the purpose of taking off a certain crop, a failure to put it up in time to take off that crop, entitles the planter to recover damages for his loss of crop, and extra wages paid in consequence of the delay for alterations and repairs, in putting the sugar mill and steam engine in operation.
    APPEAL from the District Court of the parish of St. Landry, Overton, J.

      T. H, Lewis, for plaintiffs and appellants:
    We contend,
    1st. That the only damages that can be allowed, in this case, where no had faith is charged and where none exists, are such as immediately result from the defectiveness of the machinery and the cost of repairs, and cannot include consequential damages, such as the loss of cane, &c. Pothier Ob. No. 161.
    2d. That only such damages, as can be said reasonably to have entered into the contemplation of the parties, at the time of making the contract can be allowed on its passive violation, and those here allowed exceed that measure. La. C. 1928, No. 1. Pothier Ob. No. 160.
    3d. There should he reciprocity of obligation, in commutative contracts, and no construction should be adopted which by its effects, might ruin one of the parties, on his failure to comply with his obligation; but could only subject the other to the payment of interest on his failure to comply with his obligation ; and the intention to enter into such an unequal contract cannot, in fairness be presumed. La. 0. 1761. 1 Story Eq. Juris. § 64 f.
    4th. Even supposing the rule adopted by the Judge a quo to he correct, he has allowed a larger amount of damages than the facts in the case warrant.

      Swayze & Moore, and Dupré & King, for defendant:
    The plaintiffs are proprietors of an iron foundry, and are in the habit of furnishing mills and engines for the southern sugar planters. They knew from them, why mills and engines are always contracted for, to be put up at a particular period; that the cane crop is one sensibly influenced by the vicissitudes of the seasons, and that in this latitude it is often an uncertain crop, resulting from those very vicissitudes. Hence, plaintiffs knew when they entered into the contract, that if the cane crop was not taken off by a particular period, that a heavy, if not a total loss would result to the defendant. They stipulated in their contract to fmnish the defendant with such a mill and engine as would enable him to avoid this loss and those damages'. They were then such damages as were contemplated or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. La. Code, Art. 1928.
    It is not pretended that the defendant has not complied faithfully with his part of the contract (except the payment of the price which he was not bound to pay). It is not pretended that he has not used every exertion to make the mill and engine available, and finding those exertions ineffectual, that he did not make every other effort practicable to save himself from impending loss.
    But the Code informs us that the obligation of contracts extending to whatever is incident to such contracts, the party who violates them is liable as one of the incidents of his obligations, to the payment of the damages which the other party has suffered by his default, that this violation may be either active or passive and that when the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach, are the amount of loss he has sustained, and the profit of which he has been deprived. La. Code, Art. 1924-5 and 8.
    Nor is it pretended that the plaintiffs were prevented by fortuitous events or irresistible force from performing their obligations; but -we find one of them, (Mi-. Qoodloe) admitting that a part of the machinery was not constructed, as he intended it should be, a fact which must have been known to him before they commenced to put up the machinery on the plantation of the defendant. Nay, a fact which must have been known to him before it was shipped from the foundry in Cincinnati to its place of destination.
    The plaintiffs then, if not guilty of fraud or bad faith, are chargeable with gross negligence (crassa negligentia) and inattention, the consequences of which were as disastrous to the defendant, as if the former had been practised upon him by the plaintiff's and for which the law holds them equally responsible.
    Toullier discusses this question fully, and with the lucidity characteristic of his mind. He puts the case of one (Titius) who hires to another vehicles to gather his wine crop in a vineyard distant from his domicil, whither the latter had gone to make the necessary preparations, hireing workmen, &c., but Titius fails to furnish the vehicles, and the vintager is compelled to hire other vehicles at a higher price, or not being able to procure other vehicles is compelled to discharge his workmen and to postpone the taking off his crop. Some days after, a hail storm ensues and destro}rs his crop, that he had previously sold to pay his creditors. He then proposes the quesiions: “ Me devra-t-il le prix de marécolte, en tout ou on partie? Devra t-il m’indemniser de la perte que j’ó-prouve par la vente de mon bien, et par la faillite qui en a été la suite?”
    “II est d’abord évident que cette derniére perte, si elle peut étre eonsidérée commo une suite de la faute de Titius, en est une suite trop éloignée pour qu’il en doive répondre. La cause directe, la cause immédiate de cette perte, est dans le mauvais état de mes affaires, que Titius n’a pu ni dú prévoir, sa condition ne doit pas étre pire pour avoir manqué de parole á telle personne plutót qu’á telle autre, á une personne dont les affaires étaient délabrées, plutót qu’á une personne dont les affaires étaient en bon état. Oette perte n’est point la suite immédiate et directe de la faute de Titius ; elle a été produite par une cause étrangóre, qui ne peut lui étre imputée, et qu’il ne pouvait prévoir.” 6 Toullier, pp. 294, 295.
    The distinction here drawn is a clear one. There is no necessary connection between the vintager’s debts and his crop ; those debts may have been owing before he commenced planting. They may not have grown out of his planting operations; but they may have been the result of vicious courses or of expensive and careless habits. At all events, it was his misfortune, if not his fault, to be so embarrassed when the storm came upon him.
    The seizure and sale of his property did not destroy his crop, nor would the retaining of his property have prevented the destruction of his crop. Titius had nothing to do with his debts nor with the seizure and sale of his property to satisfy them, but if he was prevented or disabled from gathering-his crop before the occurrence of the hail storm, in consequence of the act or fault of Titius, we shall see whether Titius is responsible for the loss that ensued:
    “ Mais la perte do ma recolte, la devra-t-il entiére ? En devra-t-il une partie ? N’en devra-t-il rien ? II faut distinguer. II n’en devra rien s’il justifie qu’il a été empoché d’exécuter son obligation par suite d’une force majeure ou d’un cas fortuit; en un mot, par une cause étrangére qui ne peut lui étre imputée. Par exemple, si ses chevaux et ses voitures avait été pris á la requéte du ma-gistrat pour les besoins du gouvornement. Si ses chevaux avaient péri par accident ou étaient rostés malades. Oes événemens sont des causes étrangéres qui ne peuventlui étre imputées. Mais si je n’ai pu me procurer d’autres voi-tures, ou ce qui est la méme chose, si je n’ai pu m’en procurer avant 1’orage qui a détruit ma recolte, il semble que, d’aprés la disposition de l’article 1151, Titius doit m’indemniser de la perte entiére de ma recolte; car on ne peut rai-sonnablement nier que cette perte ne soit une suite immédiate et directe de l’inoxécution do la convention. Toutes mes mesures étaient prises, le jour fixé, mes vendangours engagés, des voitures louées, &c., &c. Si elles n’avaient pas manqué, il est prouvé que ma vendange eut été faite, emmenée, et qu’elle n’eut pas été détruitc par Forage survenu quelques jours aprés. Dira-t-on que la cause immédiate et directe de la perte de ma recolte a été Forage et non pas la faute de Titius." 6 Toullier, pp. 295-6-7.
    The principle established in the hypothetical case put by Toullier is broader and more rigorous in its operation, than the one we are contending for in the case at bar. In the former, Titius is held responsible for the consequences of an unexpected and uncertain event, (a hail storm), an event which was not foreseen and could not have been foreseen. We seek to hold the plaintiffs liable for the consequences of an event which is as certain as that the seasons succeed each other. We know that the fruits of the earth, ripened by an autumnal sun, unless gathered, are doomed to perish by the frosts and winds of winter. Hence, man looks and prepares for the appointed visits and consequences of the seasons, with as much confidence and care as he does for returning night and day, or for other phenomena occurring under the operation of the laws of nature.
    In vain then, is it asserted that plaintiffs did not foresee the loss of that crop, in the event of a non-compliance with their contract. Equally vain, would it be to assert they did not know its salvation rested with them alone, and that the defendant was powerless and wholly at their mercy.
    But we are not left to the commentaries and reasoning of foreign jurists for light on this question. The principle is a settled one in our jurisprudence.
    In the case of Findley v. Breedlove, Bradford & Robeson, 4 M. R. N. S., page 105, a steam engine was furnished to the defendants for the price of which they were sued, and the payment of which they resisted, on the ground that the machinery was imperfect and defective. They further claimed damages in reconvention for the loss sustained by them.
    The plaintiffs in that case as in the case at bar, attempted to screen themselves from the payment of damages by contending that their responsibility was limited to the value of the machinery which should prove defective, and that their warranty only extended to replacing those parts which were ascertained to be defective, but the court ruled that the law extends the obligation much farther.
    After defining damages to be the loss which a person has sustained or the gain which he has missed, the court go on to remark, “ In practice this right is restrained to such injury or damage, as is the direct and immediate consequence of the failure of the contract. The writers on the civil law illustrate this rule by many examples which it is unnecessary to notice. We think that where the owner of a boat contracts for an engine, and loses the use of her for several months, in consequence of the defects in the machinery, that the money actually expended and the loss of gain directly resulting from these delects comes within the definition just given.”
   Btjchanan, J.

( Vookhies. J., absent.)

The contract of plaintiffs was to build and put in operation on the plantation of defendant, a sugar mill and steam engine. The contract was made on the 8th January, 1849, and the plaintiffs agreed to deliver the mill and engine at the Plaquemines landing, on or before the 18th June, 1849, On his part, the defendant bound himself to haul the said machinery to his sugar-house; to furnish the necessary brickwork and timber for putting up said machinery, and a suitable number of hands to assist in putting up the same, within thirty days from the delivery of the same at Plaquemines.

The law of Louisiana on the measure of damages for the inexecution of contracts is found in Articles 1928, 2294, 2295 and following of the Civil Code.

“ Every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill.” Art. 2295.

“ When the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained and the profit of which he has been deprived, under the following exceptions and modifications:

1st When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract” C. C. 1928.

It appears to us evident that it entered into the contemplation of the plaintiffs as well as of the defendant, that the sugar mill and steam engine in question were to grind the crop of sugar cane of 1849, on the defendant’s plantation. The plaintiffs were extensive manufacturers of these articles in Cincinnati for the Louisiana market, and the contract was made by James Goodloe, in person, on a plantation in Opelousas.

This being conceded, it follows that the parties must hare contemplated that the making of the crop of 1849, might be delayed or frustrated by a failure to fulfil the contract, the damage therefrom resulting might, therefore, amount to the total loss of the crop, or to a partial loss.

For such loss, we consider the plaintiffs under their contract, would be liable, according to the law cited.

Applying this law to the facts of this case, we find it in proof,

1st, That plaintiffs were guilty of negligence in executing their contract, by making a right hand engine instead of a left hand engine, which their written contract called for.

2d. That they"failed to execute their contract, in this, that the castings had defects which caused their breakage, when the mill was put in operation.

Sd. That the plaintiffs were guilty of want of skill in putting up the sugar mill out of line, by which it was strained and broken.

4th. That the alterations and repairs, necessary for changing the engine from right hand to left hand, and for repairing- the breakage, &c., caused a delay of twenty-one days in the grinding of defendant’s crop.

5th. That defendant was compelled to windrow his crop to preserve it from the frost, by reason of the above delay; occasioning a deficiency of sugar, estimated by witnesses at from ten to forty per cent, of the crop.

6th. That defendant paid, in consequence of the delay, twenty-one days extra wages of six hired hands, at one dollar per day each, as well as extra time of an engineer.

Under the law and the evidence, we consider the defendant entitled to recover damages for his loss of crop and extra wages paid, in consequence of the delay for alterations and repairs in putting the sugar mill and steam engine in operation: said delay being caused by plaintiffs’ fault, and by their failure to execute their contract.

The measure of damages for the inexecution of contracts, as we have seen, by Article 1928 of the Louisiana Code, is the amount of loss sustained by the obligee, and profit of which he has been deprived, subject to the modification that when there is no bad faith or fraud, the obligor is liable only for damages that may reasonably be supposed to have been contemplated by the parties at the time of the contract.

The rule with its modification, is taken verbatim from the Code Napoleon, Articles 1149 and 1150. And those Articles of the French Code in turn, were borrowed from Pothier on Obligations, No. 159 and 160. It must not be supp osed,‘however, that Pothier was the author of the rule. He tells us himself that it is as old as the Roman Law, and gives us the text of the Pandects in which it was expressed. It is known to American jurists by the name of Consequential damages; and those are distinguished Into proximate and remote. Mr. Sedgwick, in the third chapter of his treatise on the measure of Damages, has collected authorities on this subject from many different quarters. From his researches, it appears that the doctrine of the civil and common law is not materially different. In the case oí Armstrong v. Percy, 5th Wendell, the language of the Supreme Court of New York was as follows: “ Consequential damages may naturally arise from the breach of a contract, but they often depend on the peculiar circumstances of the case. Such are allowed without being stated in the pleadings, as are the fair legal and natural result of the breach of the defendants’ agreement — if they do not thus result the jury cannot allow them, unless they are stated in the declaration, and established by proofs.” And in Greenleaf on Evidence, vol. 2, p. 210, it is said, “ the damage to be recovered must always be the natural and proximate consequence of the act complained of.”

It seems to us that the loss of the defendant’s crop, and the extra wages of hands hired by him, were, in the language of these authors, the natural and proximate results of the failure of plaintiffs to comply with their obligation; or as an authority from the Scottish law, cited by Sedgwick, expresses it, a certain resulting damage. Lord Kaine’s Principles of Equity, Book 1, part 1, ch. 1,§6.

Our own Reports contain a case where the facts were precisely similar to the present one, with the exception that the sugar mill was not contracted to be put in operation by the manufacturer.

The language of Judge Martin, in delivering the opinion of the court, was as follows: “ In the present case, as no fraud or bad faith is alleged against the defendant, his liability must extend to such items as are to be presumed to have entered into his contemplation at the time of the contract. These are, the price of the mill — expenses of removing it to the appellants plantation, and of putting it up and taking it down — of attempts to render it available. These are the losses which must have been contemplated as attending the delivery of an insufficient mill. Next, the sugar and molasses, which the appellant failed to make; these are the profits of which he was deprived.” Lobdell v. Parker, 3d L. R. 332.

In that case, the remedy sought and awarded, was the rescission of the contract and damages in addition, for a defective sugar mill. The authority of Pothior was quoted in support of the views of the court, which appear to be conclusive of the right of the defendant to recover upon the proof adduced by him: and as the point is of great importance to the planting interest of this State, we think it unwise to disturb a precedent of more than twenty years standing; especially when wo find a decision in conformity thereto, made by our immediate predecessors. See case of Rugeley v. Goodloe, 7th Annual.

It is proper to observe, that doubts have been entertained by some members of the court, as to the measure of damages; but they have been yielded to the considerations of the repeated decisions with regard to this particular class of contracts — in which the rules as to conventional obligations in general, are to be taken in connection with the provisions of the Code pertinent to the subject matter.

A calculation which we have made of the losses suffered, and of the profits of which the defendant has been deprived, in the present case, based upon the elements laid down in Lobdell v. Parker, has resulted in a less sum than was allowed by the District Judge. We also think the plaintiff entitled under his contract to a privilege upon the mill and engine.

It is therefore adjudged and decreed, that the judgment of the District Court be amended, that the damages of defendant be assessed at the sum of twenty-one hundred and seventy-four dollars; and that plaintiffs recover of defendant the difference between that sum and the price of the contract sued upon, to wit: fifteen hundred and twenty-six dollars, with interest at eight per cent, per annum from the 1st February, 1851, with costs in both courts, and privilege upon the sugar mill and engine made by plaintiffs for defendant.


source: Caselaw Access Project

author: Campbell, J,

license: Public Domain

text:
    L. Gayoso v. A. Delaroderie.
    Where the defendant is but a nominal purchaser-with notice of the plaintiff’s claim, he mustbe regarded as occupying the position of bis pretended vendor, and parol evidence should be received to establish simulation Tvítli respect to the title between such vendor and other persons.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.

      H. W. Sherborne, for plaintiff. J. M. Brunot, for defendant and appellant.
   Campbell, J,

(VoonniES, J., absent.)

The plaintiff sues for the recovery of six lots of ground in the town of Baton Rouge, which she alleges she inherited from her mother, Felicité Perez, who received the same in 1811, as her share of the succession of her father, Elias Beauregard, The defendant likewise claims under Felicité Ferez, by virtue of a sale of the said lots, executed by her to Manuel J. Beauregcvrd in 1813, and a subsequent transfer of said lots made to him by the widow and heirs of Manuel J. Beauregm-d in 1852.

The facts of the case are substantially as follows : Felicité Perez, the mother of plaintiff, had allotted to her as one of the heirs of Elias Beauregm-d, in 1811, by act of partition between the heirs, the lots in question, as part of her share of the succession of her deceased father. On the 4th of February, 1813, Felicité Ferez sold by public act to Manuel J. Beauregard, under whom defendant claims.

On the 25th September, 1815, the heirs of Elias Beauregm-d, executed a mortgage in favor of Garrciby, to secure a debt due him by their ancestor. Felicité Perez mortgaged, with other property received in the partition, the lots sued for. To this mortgage, M. J. Beauregm-d was a party, though he did not appear in person, but acted through an attorney.

In 1817, Felicité Perez died, and in August of that year an inventory of her succession was made, in which the lots sued for were included. Manuel J. Beauregm-d to whom, as is alleged, the same property had been previously sold, acting as one of the appraisers.

The debt to Garraby not having been paid, he obtained, on the 24th of April, 1818, an order of seizure against the property. After th’e seizure, but before the sale, the sums due by two of the co-heirs, M. J. S B. J. Beauregm-d were paid, and as to them, the seizure was dismissed; but with respect to the heirs of Perez, it was carried on, and the lots in controversy were, on the 19th of October, 1820, adjudicated to Louis Dubreuil, Manuel J. Beauregard being, as his brother and partner B. J. Beaniregard deposes, present at the sale and acquainted with the circumstances of the mortgage.

On the 1st of June, 1822, Bubrueil transferred the said lots to the heirs of Felicité Perez, (of whom the plaintiff is the sole survivor and heir,) in whose possession the property has been since that time, until the disturbance complained of in 1851.

It may be added, that Manuel J. Beam-egan-d never took actual possession under the sale from Felicité Perez, and that he lived and died in Baton Rouge, having only been absent from that place about six months, in the year 1827, during which time he resided in New Orleans.

It further appears, that J. B. Beawregm-d, as the agent of the heirs of Fell- citó Perez, enclosed and held for them the lots in question for about twenty years, and that they'' were, with his permission as agent, held and used by another, for seven years afterward, until the fences rotted down, since which time they remained vacant until enclosed by defendant; that the sale to Manuel J. Beauregard was not real, no consideration having been paid by him nor delivery made ; that during his life, he never claimed to be the owner of the property, and that it was not inventoried after his death, or as belonging to his succession, nor so claimed by his heirs or legal representatives, until possession ■was taken by enclosure in 1831, as above stated.

On the trial, a bill of exceptions was taken to the reception of parol testimony to establish simulation in the sale from Perez, the ancestor of plaintiff, to M. J. Beauregcwd, and from Mrs. Beauregard to the defendant, until it should be made to appear that the defendant, at the time of his purchase, had been informed of all the facts going to prove that the sale from Perez to M. J. Beauregard, was without consideration.

Upon the correctness of the ruling of the court, and upon the effect to be given to the testimony, must the decision of this case chiefly rest.

It may be remarked, that on a former trial of this cause, a similar exception had been taken and sustained, and that upon an appeal, the cause was remanded. In passing on the exception by which the point was reserved, the court then said: “ Whether this evidence was or was not admissible, depends upon the real character of defendant’s title. If he is a purchaser in good faith, he cannot be affected by the want of consideration in the sale to Manuel J. Beauregard. It is enough for him that it is valid in form, and that it stands on the record of the country as the deliberate act of the vendor. If, on the other hand, as assumed by the plaintiff’s counsel, and as the evidence makes it probable, he is merely acting as agent of the legal representatives of Mcmuel J. Beaw'egwrd, the evidence was clearly admissible. The object of it, was to raise one of those presumptions from which simulation is inferred.”

It appeared from a recital in the deed from Mrs. Beauregard to defendant, that the sale was made to carry out a private agreement previously entered into between them, and the case was remanded in order that the private agreement might be produced, and the true character of the defendants title thus ascertained.

On the last trial, defendant, under an order made on plaintiff’s motion, filed in court a memorandum of an agreement entered into between himself and his vendor of even date with the public act of sale. In this agreement, after reciting the sale of the six lots in controversy, and stating that they are claimed by the present plaintiff, who proposes instituting suit for their recovery, it is stipulated that defendant in his quality as purchaser, shall defend the suit, and, in case of recovery by the plaintiff, the costs and expenses shall be borne by them equally ; but if the judgment should be in his favor, that he would pay all the costs and expenses of the suit, and moreover pay her two hundred dollars and reconvey three of the lots mentioned.

This memorandum must be regarded as in the nature of a counter-letter. It gives the true character of the transaction between the defendant and his vendor, and clearly establishes notice on the part of both of them, of the claim of plaintiff. Under a fair interpretation of it, he cannot be regarded as a vendee in good faith, but rather as an agent who assumes the trouble and a part of the expense of an ungracious litigation, on condition that he be permitted to retain for his services one-half of the property in the event of his defeating a claim, which was known to exist.

Such being the relations between defendant and his pretended vendor, he occupies no better a position than she herself would, were she defendant, as the legal representative of Manuel J. Beaurega/rd.

In view of these facts, we do not think the court erred in receiving parol evidence to establish that no price was paid, or such other facts as -would raise presumptions from which simulation might be inferred; for it is well established that, simulation like fraud, may be proved by presumption.

It is proper here to remark, that in the reference which we have made to the ruling of our predecessors, when this case was reviewed by them, we do not wish to be considered as assenting to the doctrine of the admissibility of parol testimony in cases of simulation, to the full extent assumed by them.

The rule we think is laid down too broadly, and we do not wish to he considered as assenting to it, but I state it, rather as a part of the history of the case, than as authority ; preferring to place the reception of the testimony on the ground that defendants did not object to the introduction of parol evidence in toto, but only, that it was inadmissible, until it should first be made to appear that the defendant, at the time of his purchase, had been informed of the want of consideration in the sale to Beauregard, as above stated, and that it is neither alleged or suggested, or offered to be proved, that the simulation was made to defraud creditors.

The testimony leaves no doubt on our minds, that the sale from Mrs. Perez to her brother, M. J. Beauregard, was not real and serious. All the facts proved tend to this conclusion, and are inconsistent with any other. Beauregard never having taken possession of the property sold, was, in itself, a badge of simulation, and deprives the contract of one of the essential characteristics of a sale, (P. & A. Collin v. Pellerin, 5 An. 99,) and when to this we add the fact, that though he resided constantly, for many years before his death, at Baton Rouge, without claiming the property — that he permitted Mrs. Perez to mortgage it without objection, it being proved that he had knowledge of the mortgage and joined in it, this fact, coupled with the fact of his having appraised the property under oath, and having signed the inventory, would certainly have estopped him from disposing of the title of Mrs. Perez, and may be regarded as written evidence, tending to prove simulation. That he, after her death, suffered it to be inventoried as forming part of her succession, he himself acting as a sworn appraiser. That he subsequently permitted it to be sold as the property of Mrs. Perez, to whom it had been allotted in a partition, to which he was himself a party, furnishes to our minds, irresistable proof that the sale to him was simulated and not real. The facts enumerated would have estopped him from claiming under the sale, and his legal representatives occupy no better position.

The judgment of the District Court was in favor of plaintiff, declaring her to be the owner of the lots sued for, and restoring her to the possession of them, which judgment we affirm, with costs of both courts.


author: Vooehies, J.

text:
    Suzanne Basseron et als. v. W. D. L. McRae and Wife.
    Abstracts of certificates of entry, attested by the register of the land office to be on file, and agreeing with the register of sales and records of his office, if admissible in evidence, are insufficient to form the basis of a petitory action; and where such was the only evidence of title exhibited by defendant from the United States, and there was no location shown of land thus claimed, under the proper officers of the Government; Held: That defendant had not a title translative of property which would sustain the plea of prescription of ten years.
    APPEAL from the District Court of the Parish of East Baton Rouge, Burke, J.

      Seymour and T. G. Morgan, for plaintiff and appellant. Bunn, for defendant.
   Vooehies, J.

This is a petitory action. The plaintiffs, Suzanne Bauer on, as surviving spouse, and Marie Julie Fortin, wife of OUment Hamos, as sole heir of Nicolas Fortin, deceased, claim the ownership of a certain tract of land situated in the parish of East Baton Rouge. They allege that the defendants have recently, without any legal or just title, and in bad faith, taken possession of said land, by reason of which they have sustained damages in the sum of $1000. They pray to be decreed the true and lawful owners of said land and to be restored to possession, and also pray that judgment be rendered in their favor against the defendants in solido for said sum of $1000.

The answer avers that the defendants are in possession of a tract of land purchased from the United States by Nichols and McRae, who afterwards conveyed the same to MalacM Bradford, that at a probate sale of the property of the community which existed between said Bradford and Emeline Ooolc, deceased, his wife, said tract of land was adjudicated to Jane Ambrose, one of the defendants. The prescription often years, under a just title translative of property is also pleaded in bar of the plaintiff's right of action.

The plaintiff’s muniments of title consist of an order of survey, granted under the authority of the Spanish Government on a requite or petition of Nioolas Fortin, an actual survey and location of the land prayed for, made by Ira O. Kneeland, pursuant to said order, on the 21st of October, 1806, and Register’s patent certificate showing the confirmation of said title by act of Congress, approved March 3d, 1819. Under the survey and location thus made, the tract is described as being bounded on the west by Daniel Hickey; on the east by Thomas Lilly, on the north by vacant lands, and on the south by George Profit.

It is shown that the old marks and boundaries correspond satisfactorily with the field notes of Kneeland, as verified by a survey made under the order of the court. The question, then, as to location may, therefore, be considered as at rest.

John BueJder testified that he was acquainted with Nicolas Fortin and his family, since the year 1805 or 1806, while they resided in the parish of East Baton Rouge, and was frequently in their family after they removed to New Orleans. It was notoriously known that the land in question belonged to them and was assessed in their name. Prom the year 1821 to 1837, while sheriff of East Baton Rouge, he acted as their agent in the payment of the taxes assessed on said land. In the year 1841 he told Malaahi Bradford that a portion of his, Bradford's, improvements was on the plaintiff’s land. Two or three years afterwards, he met Bradford in the town of Baton Rouge, and again mentioned the subject to him. Bradford replied that he would be satisfied if his improvements were paid for. It is therefore obvious that the plaintiff’s title must be considered as complete and perfect, and it is equally obvious, superior in dignity to that of the defendant’s, which is still inchoate. The only evidence of title exhibited by the defendant from the United States, are documents purporting to be abstracts of certificates of entry attested by the register of the Land Office to be on file and agreeing with the register of sales and records of his office. Conceding the admissibility of this evidence, which has been excepted to, we think it would be insufficient to form the basis of a petitory action as contended for by the defendants.

It is true, under our jurisprudence, it has been repeatedly held that the receipts of the receivers of public moneys for public land were sufficient evidence ' of title from the Government to maintain such an action, but there is no evidence of that kind in the present case. Neither is it shown that the survey introduced in evidence by the defendants was ever approved or authorized by the Surveyor General of the United States for the State of Louisiana, or by any other legally authorized officer, returned to the proper office.

Mr. Duplantier, the only witness introduced by the defendants, testified that Malachi Bradford came to the palish in the year 1837 or 1838, and lived in the upper part of it, near Port Hudson, where he continued to reside; it was a new place, and had at that time very little improvements on it. There is no evidence in the record showing the portion or extent of the land actually inclosed or on which the defendants erected their improvements, or at what time the inclosures or improvements were erected on the same. The land purchased by the defendants is described to be “ situated in the parish of East Baton Rouge, containing 950 acres, bounded on the north by land of Montagudo, on the south by land of Christian, on the west by land of Banaldson, and on the east by those of Ca/rney and Borshnj, and purchased by one of the defendants, as alleged in their answer, at the probate sale of the property and effects of the community which existed between Mdlaehi Bradford and Bmeline Cook, deceased, made on the 23d September, 1850. There is no location shown of the land thus claimed under the proper authority of the Government of the United States, in which the fee still exists until the patent issues.

But admitting for a moment that the defendants’ title is a title translative of property, still we are of opinion that the facts disclosed by the record are insufficient to establish such an adverse possession as-required by law to sustain the plea of prescription.

It is therefore ordered, adjuged and decreed, that the judgment of the District Court be avoided and reversed; that the plaintiffs have judgment and be declared the true and lawful owners of the tract of land described in their petition ; that they recover of the defendants whatever portion thereof may be in the possession of said defendants, and that a writ of possession accordingly issue; and it is further ordered and decreed that the costs in both courts be borne by the defendants.


author: Ogden, J.

text:
    C. Very v. L. Very.
    The law authorizes the wife to withdraw the administration of her paraphernal property from iltr husband, although she had previously left the administration of it to him.
    Although the husband who is head and master of the community, cannot, from the peculiar relation subsisting between husband and wife, exercise any right of action against the wife for damages occasioned to the community by his wife’s acts, yet, he can not be compelled to pay back to her moneys employed by him, with her consent, for the benefit of the community, without taking account of the property retained by the wife belonging to the community, and of the losses by tho community in consequence of the wife’s resistance of the marital authority.
    APPEAL from the Parish Court of East Baton Rouge, Burle, J.
    -tx O. A. Johnson, and Qeo. S. Lacey, for plaintiff. A. M. Dunn, for defendant and appellant.
   Ogden, J.

This suit was instituted by the plaintiff against her husband for a separation of property and to recover certain sums of money alleged to be due to her on account of her paraphernal rights. The petition sets forth certain property, consisting entirely of negroes as the paraphernal estate of the plaintiff, of which she prays to be decreed the separate administration. The suit was brought in December^ 1850.

The defendant avers in his answer that, in the month of June, 1848, his wife had abandoned their common dwelling, which was on a plantation purchased since their marriage, and had taken with her all the negroes on the place, and besides, movable effects belonging to him and to the community, and that she had never since returned; he prays that she may be summoned to return to the matrimonial domicil, and in default of her doing so, asks for a judgment of separation from bed and board, and he also sets up claims in reconvention against his wife for separate debts of hers paid by him during the marriage, for the value of the movable effects taken off by her, and for damages sustained in the loss of the entire crop of 1848, and his subsequent bankruptcy and ruin in consequence of her taking the negroes from the plantation.

The plaintiff had judgment decreeing to her the free administration of her separate estate, dissolving the community and condemning the defendant to pay her certain sums of money as due to her on account of her paraphernal estate. The judgment further decrees that the defendant be separated in bed and board from the plaintiff, and that the plaintiff recover from defendant all tho costs of suit. The claims in reconvention set up by the defendant against his wife were all rejected, and he has appealed from the judgment.

The right of the plaintiff to the negroes decreed to her by the judgment as her separate property is not questioned and the power is given to her by law to withdraw the administration of her paraphernal property from her husband, although she had previously left it to him. By Art. 2368, the wife has a right of action against the husband, even during marriage, for the restitution of her paraphernal effects and their fruits. This right of action the plaintiff has cumulated in the present suit with the action accorded to her by Article 2399, of suing for a separation of property on the ground of the disorder of her husband’s affairs.

The evidence establishes that the wife when she left her husband carried away effects of the community, of which she still retained possession at the dissolution of the community by the judgment in her favor, and it is also shown that by inopportunely withdrawing her negroes from the plantation belonging to the community, on which she had consented that they should bo employed to make a crop, that a loss was sustained by the community to the amount of $2000. Although the husband who is head and master of the community, cannot, from the peculiar relation subsisting between husband and wife, exercise any right of action against the wife for damages occasioned to the community by his wife’s acts, yet it would not be equitable and just to compel him to pay back to her moneys employed by him with her consent for the benefit of the community, without taking account of the property retained by the wife belonging to the community and of the losses sustained by the community in consequence of the wife’s resistance of the marital authority. If instead of taking the negroes from the plantation in the absence of and against the consent of the husband, the plaintiff had demanded them through the ministry of the laws, the right would have been accorded to her in such a manner as to inflict no injury on the husband, who on the faith of his wife’s consent to employ her negroes on their common plantation, had incurred the expense of pitching a crop, which it was necessary for the interest of both parties should not be sacrificed. The principle, “ Sictuo utereut alienumnon Isedas,” ought to govern transactions between husband and wife, as well as between other persons.

As the plaintiff had resumed the separate administration of her paraphernal estate and was in possession of all the property belonging to her before the institution of the suit, and the defendant has died since the appeal was taken ; we think justice will be promoted by nonsuiting the plaintiff and leaving all matters growing out of the community and the claims of the wife on it, to be settled in the due course of administration of the husband’s estate. It is therefore ordered, adjudged and decreed, that the judgment of the court below be avoided and reversed and that the suit be dismissed, as in case of nonsuit, reserving to the defendant all his rights under the demand in reconvention, and that the plaintiff pay costs in both courts.


author: Slidell, C. J.

text:
    C. Knight v. Carrollton Railroad Company.
    The right of the Carrollton Railroad Company of making a turn-out to communicate with the depot on Nayades street, was a necessary incident to the use of the Railroad.
    This Was established in the case of the JSF&w Orleans and GciA'rdllton Railroad Qom/pamj v. The Second MwivicvpaUtyj of JsFew Orleans., 1 Ann. 128.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Ogden & Duncan, for plaintiff:
    The owner of a lot in a town has a right to the free use of a street. It is a nuisance to obstruct it, and the owner of the lot may maintain a suit to abate such nuisance and to recover damages.
    The right of the public authorities to act in such a case, does not divest the right of the lot holder.
    The defendants have, in violation of plaintiff’s right, and in defiance of the municipal authority, put down their switch under circumstances which show they were acting improperly.

      The defendants made their switch into and upon a street on which their charter gave them no right to lay rails. _ _
    _ _ The plaintiff proved that the delendant’s wrongful act was injurious to plaintiff’s property, and should have been allowed damages and a judgment to abate the nuisance." 1 An. 128. Sedgwick, Dam. p. 81, 3 note p: 140. See Appel-gate, <&o. v. The City of Louisville, and the following authorities there cited:
    In case of private nuisances, the remedy by injunction, is maintained upon the ground of restraining irreparable mischief, suppressing interminable litigation, and preventing multiplicity of suits. Not every case whore a party aggrieved by a private nuisance, might have an action at law, will justify the interposition of a court of equity to redress the grievance, and remove the annoyance. The injury must be such as that from its character it is not susceptible of adequate compensation in damages merely, or such as from its continuance and permanent mischief, occasions a constantly recurring grievance, which cannot be prevented but by injunction. Every common trespass is not a'foundation for injunction, where it is temporary and contingent in its effects. But if it be continued so long as that it becomes a nuisance, an injunction will be granted to restrain the person from continuing it. Goullon v. White, 3 Atk. 21. So a mere diminution of the value of property, without a continuing or irreparable mischief, will not be a sufficient cause for redress in chancery. Attorney General v. Nicol, 16 Vez. 344: Gardner v. Village of Newbury, 2 John. Oh. Rep. 161. Vatibergen v. Vanbergen, 3 John. Oh. Oa. 287. But where the injury is continuing and irreparable, as loss of health, loss of trade, loss of the means of subsistence, or in violation of a contract, expressed or implied, or where permanent ruin to property may, or will, ensue by the wrongful act, the courts of equity will interfere by way of injunction in furtherance of justice, and the violated rights of the complainant. Attorney Generals. Niehol, 16 Vez. 342; Ea/rlBathurst v. Burden, 2 Bro. Ch. Rep. 65; Latter. Nudigate, 10 Vez. 392; Robinson v. Lord Byron, 1 Bro. Ch. Rep. 588; Nut-brown v. Thornton, 10 Vez. 163; Fusey v. Pusey, 1 Vern. 273. As to the concurrent jurisdiction of chancery in cases of private nuisances, to interfere by way of injunction, I will add but one more, out of many, viz., the case of Gardner v. The Village of Neioburg, (2 John. Oh. Cas. 164,) in which Chancellor Kent has treated the subject with his usual clearness and examination of precedents and principles. These cases arc clear and conclusive to prove the ancient and established jurisdiction of the court of chancery, to interpose in cases of private nuisances, founded on the necessity of a preventive remedy when great and immediate mischief or material and permanent injury to the comfortable and useful enjoyment of the property, would otherwise ensue. If the right to the enjoyment on the part of the plaintiff be clear, and the injurious interruption of that right by the defendant, be made out, the plaintiff is not to be sent to law to establish his right. Such was the course in Bush v. Western, Finch’s Prec. in Oha. 530. Finch v. Resbridger, 2 Vern. 390; Gardner v.

      Village of Newbury, 2 John. Ch. Rep. 165. If the plaintiff has a clear right long used, and the interruption to that right is clearly injurious, the plaintiff is not sent to law first to establish that -which is already sufficiently plain. The distinction between a clear right in the plaintiff with an injurious interruption thereof by the defendant, and a doubtful right of the plaintiff, or a doubtful interruption by defendant, will reconcile all the cases upon the subject.
    Cases calling for the like remedy in chancery by injunction, are where easements, or servitudes are by grant, conveyance, bargain and salo, covenant, or otherwise annexed to private estates, or whore easements of privileges of a public nature, and yet beneficial to private estates, are secured to proprietors of ground contiguous to public streets, squares, or other places dedicated to public uses, the due enjoyment will be protected by injunction, in all such cases, against encroachments. Goming v. Lowerre, 6 John. Ch. Rep. 439; Story’s Equity injunction, sec. 927, p. 206; Groton Turnpike Company v. Ryder, 1 John. Ch. Rep. 611; Ogden v. Gibbons, 4 John. Ch. Rep. 150-160; New-burgh Turnpike Company v. Miller, 5 John. Chan. Rep. 111-112; Story’s Equity, vol. 2, Injunction, sec. 927, p. 206 ; Martin v. Nuthin, 2 P. Wms. 167.
    In Goming v. Lowerre, (C John. Oh. Rep. 439,) Chancellor Kent granted an injunction to the owners of lots on Vestry street in Now York, (which street had been laid out, regulated and paved for about twenty years, the bill avering that the defendant was about building a house on it,) because there “was a special grievance to the plaintiffs affecting the enjoyment of their property and the value of it; the obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs.”
    An injunction has been granted in favor of a corporation to secure to them their corporate rights and privileges in the enjoyment and perception of their profits from tolls, by restraining short bye roads, commonly called shunpikes. Groton Turnpike Company v. Ryder and others, 1 John. Chan. Rep. 615; so an injunction was granted to secure the due enjoyment of a statuable right for taking tolls for crossing a bridge, against disturbance in erecting another bridge over the same stream, so near as to draw off passengers. Newburn Turnpike Oonpany v. Miller and others, 5 John. Oh. Rep. 110-111. So also an injunction was sustained, to secure to a corporation the enjoyment of its corporate rights and privileges against an enormous and continuing trespass threatened, in derogation of their corporate franchises. Osburn v. Bank U. 8. 9 Wheat. 5 resol, p. 838-840.
    An injunction has been granted against a corporation to restraiq the abuse of the powers granted them, which abuse operated to the injury of other persons. Gardners. The Village of Newburgh, 2 John. Oh. Rep. 168; Agwi'Y. The Regent's Oanal Company, Cooper’s Equity Rep. 77; Coats v. The Clarence Raihoay Company, 1 Russ and Myln, 181; 2 Story’s Equitjq Injunction, sec. 927, p. 206.
    In cases of trespass done or threatened, where the mischiefs would be irreparable, or continuing and constantly recurring, or would impair the just and comfortable enjoyment of the property in future, courts of equity have interposed by injunction in very many cases, to prevent and restrain such irreparable mischief, or such multiplied vexations, and such constantly recurring causes of litigation. If indeed courts of equity did not interfere in such like casos, the justice of the country would be very lame and inadequate. Mitchell v. Dorrs, 6th Vez. 147; Hanson v. Sardón, 7th Vez. 307 to 308; CrockfordY. Alexander, 15th Vez. 138 ; Thomas v. Oakley, 18th Vez. 184; Cowper v. Baker, 17th Vez. 128; Kinder y. Jones, 17th Vez. 110 ; Robinson v. Lord Byron, 1 Bro. Ch. Rep. 589; Mayor of York v. Bilkington, 1 Atk. 284 ; Coulton v. White, 3 Atk. 21; Livingston v. Livingston, 6 John. Ch. Rep. 438 ; 2 Story’s Eq. Inj. sec. 928-929, p. 207 ; 1 Eq. ca. ab. (bill F) p. 79.
    In all the aforegoing classes, it may be stated to be the practice of the courts, if the rights of the plaintiffs be clear, and the injury complained of be certain, to grant a perpetual injunction, on final hearing, without any trial at law. But if the right be doubtful, the practice is to order an issue to be tried at law to ascertain the fact; to grant an injunction in the meantime against the mischief, threatened or progessing, and against all injurious proceedings; and when the right is settled at law, then to decree perpetual injunction. If the rights asserted, and the injury complained of, be sufficiently colorable so as to induce the court to take cognizance, and retain the case by directing a trial at law, the injunction in the interim is granted to restrain injurious proceedings until the trial can be had. Ryder v. Bentham, 1 Vez. Sen. 543 ; 2 Story’s Eq. Inj. sec. 927, p. 207.
    It is likewise the practice,- upon application for injunction, after answer comes in, to hear affidavits in support of the injunction, (although taken before the appearance of the defendant.) Robinson v. Byron, 1 Bro. Ch. Rep. 589 ; Gibbs v. Cole, 3 P. Wms, 255; Isaac v. Humpage, 1 Vez. jun. 427.
    Town is the genus, and burghs, villages and cities are the species. The meaning of town is derived from the Latin and the Norman French “villa, and vicus and ville.” “ It is called vicus because it is propo viam,” hard by a way or street. “Villa est ex pluribus mansionibus vicinata, et collata ex pluribus vicinis.” (“ A town is a neighborhood, or rows of houses, and a congregation, of many neighbors.”) “ If a town be decayed so as no houses remayne, yet it is a town in law.” Littleton, sec. 171, co. Litt. 115 b. By this it appears that a street is an essential ingredient in the composition of a town. “ A town is called vicus;” a street or rows of houses one close to another, with a way between the rows. A block of buildings, or a row of houses without a street, does not make a town. They may make a spacious country seat, but not a town. A street must be interposed or superadded. “ Villa est ex pluribus mansionibus vicinata, ot collata ox pluribus vicinis.” A town is a neighborhood of many mansions, and a congregation of many neighbors. A street, or common way, between these habitations, for common nse and convenience of all the neighbors or dwellers in those neighboring mansions, is an essential in-gredientin the making of a town. Vicus, a street or rows of houses near the one to another, with a way or street between the rows, is the sense in which the word vicus is used by approved Latin authors. It is so explained by Lexicographers — it is so used by Cicero, “vicus rusticus,” a village.
    A town without a street is not an intelligible or conceivable idea. In legal language, or in common parlance, it is unknown — it is a nonentity.
    The act itself directs the land to be laid out into lots “ with convenient streets.” Convenient to whom? To the purchasers of lots, to the inhabitants of the houses to be built, to the freeholders and inhabitants of the town. To these, those convenient streets are promised, shown, and assured in the sale, included in tho guaranty of all the rights, privileges and immunities which the freeholders and inhabitants of other unincorporated towns held, had, and enjoyed. The free and common use of these convenient streets were easements, and privileges annexed to the fee simple estates of the purchasers of lots, running with the title to the lots, belonging also to the tenants under the proprietors of lots, belonging to all “ the freeholders and inhabitants” of this town, as amply as were held, had and enjoyed by the freeholders and inhabitants of other towns not incorporated.
    In general, under the grant of a thing, whatever is parcel of it, or necessary to the beneficial use of the thing, or in common acceptation and intendment included in it, passes to the grantee. Good faith affixes itself to the intention; fraud insists on the dead letter, and evasions of the spirit of the agreement. The reason of the agreement, the motive which led to the making of it, and the view proposed and held out as an inducement to the making of the agreement, are certain moans of establishing the true sense and intention. Every interpretation that leads to an absurdity, is to be rejected. A man bequeaths his house to qne, and his garden to another. The only entrance to the garden it through the house. It would be absurd to suppose the testator had left the legatary a garden into which he could notenter. "We must therefore understand the bequest of the house as implying the condition of allowing a passage to the garden. It would be absurd to suppose that the one party bought, and the other party sold, a lot of ground without the means of ingress and egress. This absurdity would be heightened and converted into a fraudulent interpretation, when the vendor had shown a street laid out in front of the lot so sold, and in front also of various other lots offered for sale, in a town which he had established. On the other hand, as various other persons, purchasers on the same street, are equally concerned in the use of the street for their convenient ingress and eagress, and comfortable enjoyment, it would be absurd to suppose that the vendor intended to sell the entire street in front of any one lot to a particular purchaser. The good sense of the transaction, and the common understanding of men on the subject is, that when streets are laid out, and lots adjoining are sold by the map and plan of the streets, that no one acquires the exclusive right, or fee simple estate, in the land of the street, or in any part, but that ail the purchasers and holders of lots in the town are to have the right of way, as an easement and privilege annexed to their estates in the lots. To hold out the street to the view and understanding of all persons as a convenience, and as inducement to purchase lots, whilst the vendor secretly intended, after all the sales were effected, to claim the exclusive right to the street as being in himself, to obstruct, dispose, hinder, or block up, or alienate, at his will and pleasure, would be perfidious, against which the laws would furnish competent redress. The proprietor of the ground so laying off lots and streets, would be considered as trustee of the streets for the use and benefit of the purchasers and inhabitants of the town so laid out and sold; that all were entitled in common to pass and repass, to use the streets as easements and privileges, free and common. The decisions are in confirmation of these principles. They establish the doctrine that each proprietor adjoining the street is entitled to an easement, as a right of way; that this easement and right of way is not limited to midway, of the street next adjoining his lot, but extends the whole breadth, and to the full dimensions of the street. It is co-extensive with the street. The cases warrant the doctrine in cases of sale by a map and plan of streets and lots laid out for a town, and designated as such upon the map or plan, that the purchaser of a building lot has, by his deed, an implied covenant for an easement — a right of way in the street to the full extent of its dimensions. Mayor, &c. city of New York respecting Lewis street, 2 Wendell N. Y. Rep. 474-5 ; City of Cincinnati v. White, 6 Peters, 431; Beaty v. Kurtz, 2 Peters,. 256 ; Town of Pawlet v. Clarke, 9 Oranch, 272 ; Lade v. Sheppard, Strange, 1004; Jackson v. Hathaway, 15 John. 454; Dean v. Broad-sleet, 6 Massa. Rep. 332. Liford's case, 11 Co. 52; Pomfret v. Bicroft, 1 Saund. 323 — note; Vattel Law Nat. book 2. chap. 17, sec. 290-293, pp. 238, 240: and Trustees of Lexington v. MeConnel, 12 Wheat. 582. In this last case, the Supreme Court of the United States decided, that a lot with a spring on it, designated on the map and plan of the town of Lexington, as a public spring, was thereby dedicated to common use, and could not be acquired as private property under the terms held out to settlers in the town.

      Benjamin & Hieou, for defendant.
   Slidell, C. J.

The right of making a turn-out to communicate with the depot on Nayades street, was a necessary incident to the use of the Railroad, and was recognized in the decision in 1 An. 128.

From an inspection of the plan offered in evidence by the defendants, and which is shown to be more accurate than that annexed to the plaintiff’s petition, it appears that the whole of the track is within the parallel side lines of Nayades street, although it is true that by reason of the intersection of Nay-ades and Calliope streets, a portion of the ground crossed by the track, may be said to be common ground, both of Calliope and Nayades streets. The defendants, under a fair interpretation of the charter, cannot be said to "nave laid the turn-out of their track out of Nayades street.

As to damages claimed by plaintiff, it is sufficient to say that the Distinct Judge was of opinion, that the evidence of damage having been sustained by her was unfatisfactory, and that a case of positive damage was not made out. The evidence was conflicting, and we cannot say the Judge came on this point of fact to an erroneous conclusion.

Judgment affirmed, with costs of appeal to be paid by appellant.


author: Campbell, J.

text:
    E. Armorer, Tutor, v. M. Case, Administrator, et als.
    Where, at the time of marriage, the parties did not contemplate residing in this State, were married out of it, and never resided in it, property purchased in this State, will be the property of the lius-band and not of the husband and wife.
    Where a disposition in favor of a legatee is made in error, and results from the testator’s ignorance of a material fact, and would, if carried into effect, defeat his manifest intention, it will not be enforced.
    In the construction of wills a rule of primary importance is that the intention of the testator must be observed.
    A legatee who voluntarily executes a will, will not be permitted to change the interpretation which his execution of it indicates.
    APPEAL from the District Court of the Parish of Concordia, Pa/rra/r, J.

      Stacy & Sparrow, for plaintiff :
    In the interpretation of testaments, the intention of the testator is to be ascertained, C. Code., Art. 1705 ; 2d vol. Domat, book 2, tit. 1; sec. 6, No. 5; 7 Rob. Rep.,, p. 425, Oxley v. Clay, ex’r. A correct knowledge of the testator’s intentions in this case is necessary to a correct decision of it; not because their execution can bo enforced under the will per se, but because the parties have made those intentions their law, and have voluntarily executed them. Indeed, without such voluntary execution, it seeins more than doubtful, if the literal provisions of the will could have been enforced.
    A will is not strictly a contract, yet many of the same provisions' of Jaw are applicable to both. Contracts are vitiated by errors, both of fact and of law, in the motive or bearing upon the principal case. . If the motive is apparent, although not made an express condition, if the error bears on that motive, the contract is void. C. 0., Arts. 1821, 1819, 1818, 1840 ; Tanner v. Robert, 5 N. S., p. 255 ; Berard v. Berard, 2 La. Rep., p. 3.

      A. AT. Ogden and E. B. Shaw, for defendant and appellant:
    On the first point, there can be no doubt, that the testator, having in plain and unequivocal language, disposed of one-half of the property to his son ; and one-half, not exceeding the disposable portion, the title became, at the death le testator, absolutely vested in his son. As to the other half, he made no osition, because he erroneously supposed it did not belong to him. The ex-sion of his belief, that his wile, to whom he supposed it belonged by law, Id, at her death, give it to her daughter, could not affect the validity of the lute bequest to the son. Pandects, Lib. 25, Tit. 1, sec. 239. Nor could the ition of the testator, unless expressed in words of disposition, as an act of wn last will, and in the exercise'of his own proper dominion over the pro-r, bo considered as conferring any title either on his wife or on his daughter. ¡ase of Theall v. Theall, 7 L. R., 226 ; La. Code, Article 1705. If effect should even be given to the expressions used by him, so as to constitute a bequest of the other half of the property, the bequest was in favor of the testator’s wife, and she having died intestate, it descended in equal portions to her children. It is very clear the testator intended his wife should exercise the right of disposing of that half of the property.
   Campbell, J.

(Osden, J., did not sit in this case, being of counsel. Voor-hies, J., absent.)

This suit was instituted for the recovery of the amount of four notes for $5000 each, executed by the late Thomas JD. Purnell in part payment for the undivided five-twelfths of a plantation, known as the Forest plantation, which was adjudicated to him at the probate sale of the property of the succession of Mary O. Culberson, deceased.

The respondents admit that the notes were executed by T. B. Purnell, but aver that they were given in error and are without consideration; that at the time of the adjudication to him of the undivided five-twelfths of the Forest plantation, he was himself the owner of three-fourths of the whole plantation and the slaves thereon, and that in purchasing he was ignorant of his legal rights, and erroneously supposed that the legal title to five-twelfths of said plantation was in the succession of his sister, Mary C. Culberson, while in fact, she was only entitled to one-fourth thereof.

The respondents further aver that Levi Purnell, the father of Thomas B. Purnell, who died in 1835, devised to the said Thomas one undivided half of said plantation and slaves. That after the death of his said father, and in ignorance of his rights under the will, and erroneously supposing that the children of his sister, Marry Culberson, then deceased, were equal owners with himself, of the plantation and slaves, partition thereof was made accordingly, whereby the children of his sister received one-fourth more than their legal share.

Respondents averring that two of the notes given as the price of adjudication, amounting together to ten thousand dollars, have been paid, claim to recover back the amount from the plaintiff, as tutor of the minor heirs of his sister, and also to recover tho share of the negroes belonging to T. B. Purnell, erroneously given in the partition, with hire for their services. They claim that the notes sued on be reduced to one-half of their amount, and that they be credited with one-half of the amount of the two notes already paid and with the value of the hire of the negroes.

Levi Purnell and his wife, the grand-parents of the minors whose interests are involved in this controversy, resided in Mississippi. In 1833, Purnell purchased the Forest plantation and slaves, situated in the parish of Concordia, in this State, and died in 1835, leaving two children, Thomas D., the father of the minor defendants, and Many G., the mother of the plaintiffs. He left a will in which the following clause, which has given rise to this suit, is found. “ And I do further devise and bequeath to my son Thomas and his heirs all my undivided one-half, being all my right, interest and property in and to the following real, immovable and movable property, held as community property by myself and aforenamed beloved wife, according to the laws of said State of Louisiana, said real, immovable and movable property being in said parish of Concordia and State of Louisiana, and consisting of the Forest plantation of lands, negro slaves,” etc. “And I give this property to my son Thomas and his heirs, under the belief that my beloved wife will, at her death, give her undivided half of the same property, as aforesaid, to our said daughter, Ma/i'y, and her heirs.

This will was probated in Mississippi, but not registered in Louisiana until 1851, when upon presentation of an authenticated copy of it to the Probate Court of Concordia, it was, upon defendants’ petition, ordered to be executed.

Mrs. Purnell, the wife of the testator, Levi, died intestate. Besides the children Thomas and Mary, she left a daughter named Eliza Paris, issue of a former marriage.

On the 2Gth January, 1841, Thomas Purnell and his sister, Marry Gulberson, present a petition praying for an inventory of the succession of their father and mother, that they be recognized as their heirs and placed in possession. On the 27th, they accepted the succession purely and simply as the forced heirs of their father and mother, and expressly stipulated a reservation to each of them respectively, of all rights under any will which may be produced.

In August, 1842, Eliza Danis, the half-sister of Thomas and Mary, accepts the succession of her mother, and in the same act, sells to Thomas Purnell and to Gulberson, tutor, for $10,000, her interest in her mother’s succession, situated in the parish of Concordia.

On the 28th December, 1843, Purnell and Gulberson, as tutor of his minor children, made a partition in kind of the slaves attached to the Forest plantation, and making part of the succession of Levi and Mary Purnell, and also of the slaves purchased from Eliza Davis.

On the 6th April, 1844, Gulberson sold to Purnell the interest acquired by him in the Louisiana property, from Eliza Danis.

On the 6th April, 1844, the interest of the minor heirs of Mary Gulberson to the Forest plantation, amounting, as is expressed, to an undivided five-twelfths of the whole, was adjudicated to Purnell and as has been seen, this suit has been brought on four of the notes given for the price.

The error assigned is, that the ancestor of defendants, being the owner in indi-visión of three-fourths of the estate, in purchasing five-twelfths of it, purchased a part of what already belonged to him.

To ascertain the effect to be given to this defence, it is necessary to inquire what was the interest of Thomas Purnell in the property, at the time of the purchase.

Levi Purnell, having but two children at the time of his decease, had the right to dispose of one half of his property. C. O., 1480. This disposition, as has been seen, was made by him in express terms, in favor of his son Thomas. But it is urged that it was made in error and under the belief that by the laws of Louisiana, he was the owner of only one-half of the property, and his wife, as partner in community, the other half; and that, from the context of the will, it may clearly be gathered that the intention of the testator was, that the property should be inherited by his two children equally. That the testator was in error in supposing that he was the owner of and had the power of disposing of only one-half of the property in Louisiana, is made clear by the delaration in his will. “ I give,” says he, “ this property to my son Thomas, under the belief that my beloved wife will, at her death, give her undivided half of the same property to our daughter Mary." He likewise declares that the property in Louisiana is “held as community property, according to the laws of said State.” If effect be given to this bequest, the title to one-half of the property in Louisiana vested in the legatee, upon the decease of the testator; and the surviving wife having died intestate, or even in case she were entitled to nothing, the remaining half being undisposed of descended in equal portions to the two children, by which Thomas would be entitled to throe-fourths and Ma/ry to the remaining fourth. Now, the spouses never having resided in Louisiana, and not having been married in Louisiana, and not having, at the time of their marriage, contemplated residing in Louisiana, the property purchased in this State, became the property of the husband and not of the husband and wife jointly. The declaration then, that one-half of the property belonged to his wife, was made in error and in ignorance of a material fact.

Under this erroneous belief, he devised one-half of the estate to his son, alleging as his reason for doing so his belief that his wife would give to the daughter the other half of the same estate, evidently intending thereby that the two should inherit equally.

The intention of the testator is his testament. This is the first rule, and all others which concern the interpretation of testaments are reduced to it. Domat, Part 11, B. 3, Tit. 1, sec. 6, Art. 5.

The same jurist in a paragraph 3178 (Cushing’s edition) of the same book and title, in treating of the rules for interpreting difficulties in testaments, even when the terms of the disposition are unequivocal, states that some of them are occasioned by an error the testator was under in a matter of fact that Tivas unknown to him, and when it appears clearly enough, by his dispositions what he would have ordered, if the truth which he was ignorant of had bees'known to him, and if his will be thus ascertained, that “ we are to decide the matter, by adjusting the difficulty in the manner that we judge the testator hifnself would have done it, according to the views and sentiments which his disposition (and we may add, his declarations) show him to have had.

Being satisfied, therefore, that the intention of the testator was not to give preference to his son over his daughter, but on the contrary, that it was his desire that they might inherit equally, the property in Louisiana; and that the disposition in his favor resulted from ignorance of a material fact and in error, ' and would, if carried into effect, defeat his manifest intention, we cannot enforce it.

The children of Levi Purnell seem to have placed the same interpretation upon the will of their father which we give to it, and actually consented to carry it out, by the stipulations of the act of acceptance of the 27th May, 1841. It is true that they reserve their rights to attack any will which may be presented; but it further appears that Purnell, who alone had an interest in enforcing the w¡j]; never presented it or claimed its execution; and that it was not until after his death, that the step-father of his children, to defeat a contract advisedly entered into and partially executed, saw proper to present the will and claim for the benefit of the children a strict enforcement of a disposition in favor of their father, which he himself had virtually waved.

Idiomas D. Purnell was mi juris at the time of the partition of the slaves of the Eorest plantation estate, and of the purchase of the interest of his sister’s succession in the land. Although these acts may not come up to the technical definition of “ acts recognitive and confirmatory,” yet they clearly amount to a voluntary execution of the will of his father, according to the interpretation we have given it. As such, they are conclusive of his rights in the premises. 0. 0., 2252, 2254. Touillier, vol. 5, Nos. 175,180.

Being of opinion that the arrangement entered into between the parties, carries out substantially the intention of the testator, we are unwilling to disturb it.

It is therefore 'adjuged and decreed that the judgment of the District Court be affirmed, with costs in both courts.


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    Ludger Bouguille, Tutor, v. Dede, et al.
    Practice. fry ¿/ic Court. — Though this Court, with the view of relieving litigants from trouble and expense, has sanctioned the practice of omitting in the transcript of appeal such Records as are already on our files, and is willing, with consent of parties, to consult them, it will, in no instance, do so, unless the record shall have been introduced at the trial in the court of the first instance.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Durant & Horner, for plaintiffs and appellants. Murphy, for defendant.
   Campbell, J.

(VÓomiies, J., absent.)

As the transcript does not contain the evidence on which this case was tried in the lower court, we are unable to review its judgment, and must order the dismissal of the appeal.

We do this with less reluctance, being satisfied, after consideration of the questions involved, that there is no error in the judgment, if the necessary evidence establishes the facts asserted by the appellee and assumed to have been proved, on the trial, by the Judge in his written reasons for judgment.

It is proper here to remark, that though this Court, with the view of relieving litigants from trouble and expense, has sanctioned the practice of omitting in the transcript of appeal such records as are already on our files, and is willing, with consent of parties, to consult them, that in no instance will it do so, unless the record shall have boon introduced at the trial in the court of the first instance.

On the trial of this case in the District Court, the defendants offered in evidence the record in the case of Dédé v. Bouguille, No. 8904. This record is not in the transcript, and the clerk certifies that the transcript contains all the evidence adduced on the trial, with the exception of that record.

In conformity with the usage before referred to, we have taken the transcript of that record from our files; but find upon examination that it does not contain the writs and returns thereon, which were material facts of the testimony on the trial below, and which seem to have been issued after the case was remanded for examination.

To supply this omission, wo arc requested to consult record No. 3855 of our files, which is an appeal from a judgment rendered in another suit, not intro-in evidence, or referred to in the clerk’s certificate. This we do not feel rized to do. The proceedings after judgment, in case No. 4904, should been copied in the transcript. This not having been done, we are not in sion of the evidence on which the case was tried, and cannot therefore ' the judgment of the lower court, peal dismissed.


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    Benjamin F. Ball v. Crockett, Garland & Co.—Samuel Powers, Subrogated.
    Seizure and sale of a promissory note — pending suit on the same, notice of seizure was given to the attorney at law of defendants. Held: Insufficient and sale invalid. The notice required to be given by the 645th Article Code of Practice, to the defendant in execution, must be given to the debtor, or his authorized agent, or perhaps, in case of the absence of the debtor, who is unrepresented, to an attorney qiioad 7ioenegoMt(mi, appointed by the Court.
    C. P., 654.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.
    Hammer, for Garland, appellant. Mott, for Powers.

   Campbell, J.

Pending a suit instituted by the plaintiff, Ball, against Crockett, Garland & Go., on a promissoly note for $5335 55, A. H. Donaldson, who had obtained a judgment in the Eourth District Court against Ferguson et al (Ball, the present plaintiff, being one of the defendants in said suit) issued an execution thereon, dated 25th November, 1851. The next day the sherifflevied on the note filed in this suit, and notified the clerk and O. A. Jones, the attorney of record of plaintiff, of the seizure. On the lGth April, a like notice was served on Garland, one of the defendants. No further steps seem to have been taken until 2d September, 1852, when, under the direction of plaintiff in execution, the same property again was seized, and similar notices given of the seizure. Under these seizures a sale was made, and on the 28th of October, 1852, nearly two years after the issuing of the writ, the note was adjudicated to Samuel Poioers, for the sum of ten dollars.

Claiming, under this sale, to be subrogated to the rights of the plaintiff, he applied to be substituted as party plaintiff and permitted to prosecute the suit, which was allowed.

Judgment having been rendered in his favor, Ball and Garland have both appealed, and join in claiming reversal of the judgment.

The point presented for our decision, is the validity of the sheriff’s sale, and in determining this, we deem it unnecessary to inquire whether or not the writ had expired under which the last seizure was made, or whether, being yet alive, the seizure was valid, inasmuch as we are of opinion that the sale is a nullity for irregularities subsequent to the seizure.

The 654th Article of the Code of Practice provides that, “ it shall be the duty of the sheriff, as soon as he shall have executed the writ of fieri facias, to give notice thereof, in writing, to the debtor, ar.d to annex thereto a list of property seized, which he shall deliver to him in person, or leave at his place of ordinary residence.” This notice to the debtor, or to his authorized agent, or perhaps, in case of the absence of a debtor who is unrepresented, to an attorney quoad hoe negotiant, appointed by the court, is indispensable to the validity of-a sheriff’s sale.

In this case, the only notice given to the debtor, was the service made on his attorney at law, who had no power or authority to represent him in this behalf. The notice of seizure being illegal, the sale under it conferred no valid title, and must therefore be set aside. See Mississippi Marine and Fire Insurance Company v. Bank of Louisiana, 11 R., 47. Lamorandier v. Meyer, 8 R., 152. Andrews, adm’r, v. City Bank, 5 A., 737.

It is proper to add that Ball was not resident in the State, and that there has been evidently a gross sacrifice of his property.

It is therefore ordered and decreed that the-judgment of the District Court be annulled and reversed. It is further decreed that the demand of Samuel Bowers, the subrogated plaintiff, be dismissed, and that the sheriff sale of the note, declared on by plaintiff, be annulled and set aside. The costs of intervention and of this appeal to be paid by the appellee. It is further ordered, adjudged and decreed that the plaintiff, B. F. Ball, do have and recover of and from the defendant, William M. Garland, the sum of five thousand three hundred and thirty-five dollars and fifty-five cents, with interest at five per cent, from June 10th, 1850, until paid, and costs of suit.


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    Dominique Verges v. J. Forshee and A. Pentland.
    Decision in Wentz v. Yogi, 8 A., 16 affirmed.
    APPEAL from the District Court of the parish of Jefferson, Olorice, J.

      Bufour & Michel, for plaintiff. Field & Cotton and McKay, for defendants and appellants.
   Campbell, J.

In April, 1861, the defendant, Forshee, sold to plaintiff by public act, a stall in the market, with the privileges thereto belonging, a horse and cart, butcher’s tools, etc., for $1400, $700 of which sum was paid in cash. By the terms of the act, the vender bound himself not to sell meat of any description, within the limits of the city, for the term of two years, or to interfere in the business transferred to vendee.

To this act, the defendant, Fentland, became a party, and bound himself as surety in the sum of seven hundred dollars, that the vendor would faithfully perform and observe those stipulations as promised.

Plaintiff avers a breach of the stipulations in his favor, and claims from defendants the sum of $700 as legitimate damages.

The defendants plead the general denial, and aver that the obligation sued on is illegal as being in violation of public policy.

The case was tried by a jury, and on their verdict judgment was rendered for $300 for plaintiff, from which judgment this appeal has been taken.

The special defence relied upon by defendants, was considered by this court in the case of Wentz v. Vogt, 3 A., 16, in which it was held, under a state of facts very similar to those presented in this case, that “ an obligation by which the vendor of a butcher’s stall binds himself, under a penalty, not to sell or cause to be sold, any meat of a particular kind, within the city, during two years, is not invalid, as being in restraint of trade, and that if the condition be violated, the penalty may be enforced.”

In that case, a penalty seems to have been provided by the parties themselves. In this no penalty having been fixed, the damages resulting from the breach of his covenant on the part of the vendor, must be ascertained as in ordinary cases. The measure of damages being the amount of loss the plaintiff has sustained and the profit of which he has been deprived, with the qualifications stated in the Code. The record, though it contains ample evidence of the breach of contract by defendant, furnishes no proof of damages sustained by plaintiff.

Plaintiff seems to have regarded the clause (on the breach of which he relies) as final and binding, on the parties for the full amount stipulated. We do not so regard it; but think that the obligation of defendant, Pentland, as surety, was merely to pay such damages as might result from a breach of the stipulations made by vendor in favor of vendee.

The judgment must therefore be reversed and the cause remanded for a new trial. The costs of appeal to be paid by the plaintiff and appellee.


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    John L. Dufief et al. v. John A. Boykin.—Boykin and Land, Opponents.
    Sale of land from 1?. to B, in which it was stipulated that “ this sale is made udder the express stipulation and condition that the said F. shall not be bound by the vendor’s warranty of title $ and that he does not guarantee said purchaser against the existence of any defects of title, or incum-brances whatever, but such as may have arisen by his own acts; but the said 3. F. nevertheless agrees, in case the purchaser should be evicted, to return him the principal of the consideration, but nothing more.” The purchaser alleged disturbance but not eviction, and it was urged by the plaintiffs that there was no warrant against any thing but actual eviction. JBy the Coiort — We understand the restrictive words in the clause of non warranty to be “but nothing more,” and that they have relation to claims which the vendee might have beyond the restitution of the price, e. g. the fruits and revenues, the costs of suit, or other damages for which he might be liable. Agreements which parties make for themselves in derogation of the general law should be construed strictly. The agreement to refund in case ef eviction added nothing to the legal objection, nor did the exclusion of warranty preclude the legal consequences of the sale, except as specially provided for, and it is no less a legal consequence of the sale that the vendee may suspend the price in case of disturbance, than that the vendor shall refund it in case of eviction. O. 0. 2481, 2585.
    The only evidence of disturbance was the admission of parties that a suit was instituted by defendants against W. for a portion of the land. JBy the Court. — We think that to avail themselves of this objection opponents should have proved that W. claimed to hold under an adverse title having its origin before the sale from F. to B., or that his possession commenced before that time. That the warranty should have existence, it is necessary the adverse right shall have existed before the sale; and if this right was before the sale an imperfect one, and afterwards perfected by the negligence of the buyer, he has no claim for warranty. 0. C 2478.
    APPEAL from the District Court of the parish of Terrebonne, Oole. J.

      0. A. Johnson, for defendants and appellants. Illsley, and Mace & Foster, for plaintiffs.
   Campbell, J.

On the 10th January, 1846, Joseph Fowler, Jr., now deceased, sold, by public act to John A. Boyldn, a tract of land under the following description : “ A certain tract of land situated in the parish of Terrebonne, in this State, containing altogether, one thousand superficial arpents, measuring twenty-five arpenis in front on each side of the bayou Black, by twenty arpents in depth, also on each side of the bayou; bounded on the upper side by lands of Minor & Dinsmore, on the right bank of the bayou, descending, and lands of Dr. Wade on the left bank, and on the lower side by lands of which the owners are unknown, being the same property which the said Joseph Fowler, Jr- acquired by purchase, at a sale of the property surrendered by Wilhel/mus Bogwrt to his creditors.”

The consideration of the sale was $20,000, for which the vendee gave his several notes, with interest added, payable at certain times stipulated; the whole secured by mortgage on the lands sold and certain slaves in the act enumerated.

The act contains besides, the following clause: “ This sale is made under the express stipulation and condition, that the said Joseph Fowler, Jr., shall not be bound by the vendor’s warranty of title; and that he does not guarantee said purchaser against the existence of any defects of title or incum-brances whatever, but such as may have arisen by his own acts; but the said Joseph Fowler, Jr., nevertheless agrees, in case the purchaser should be evicted, to return him the principal of the consideration and nothing more.”

These lands were subsequently sold to defendants, who as part of the consideration, assume to pay the debt to Fowler.

In October, 1851, plaintiffs who are the heirs of Joseph Fowler, deceased, obtained an order for the seizure and sale of the mortgaged property. After the seizure, large payments were made, in consideration of which, it was stipulated by the parties that the sale should be suspended, in order that defendants might by opposition and injunction establish, if in their power, the payment in full of the sum really due by them. To facilitate which proceeding they agreed to dispense with the oath and bond usually required in cases of opposition or injunction, and consented that the defendants might, without exception, urge in defence all matters that might have been urged by J. A. Boykin, the immediate vendee of Fowler.

In conformity with this argument an opposition was filed, in which the defendants alleging that the sale was of one thousand superficial arpents, at the rate of twenty dollars per arpent, lying on each side of the bayou Black, with a front of twenty-five arpents on each Slide of the bayou and a depth on each side of twenty arpents; that there is a deficiency in the quantity of land. That the depth on the right bank is so limited by the back lines of the original concession of which the land sold forms a part that only 236 81 superficial arpents are embraced within the lines on that side of the bayou, which added to 570 31 arpents, acknowledged to be found on the left side of the bayou, leaves a deficit in the quantity sold of 192 88 arpents, for which deficency they claim a proportionate deminution of price.

It is next averred by defendants that they are not and never have been in the possession of the whole of that part of the land sold, lying on the right bank of the bayou, 123 90 superficial acres thereof being in possession of one Wright, who claims it as owner under an adverse title, which deducted from the whole amount included in the calls of their title, leaves 683 22 arpents as the whole amount of which they have ever had the actual possession under Fowler's title; and for which, as they aver, the $22,000, are in full satisfaction, interest included. They further aver that they have instituted a petitory action against said Wright for the 123 90 arpents, which suit is still pending, and claim that they are entitled to suspend the payment of the price pro tanto, until the decision of the question of title between them, or until security against the chance of eviction be furnished.

Before proceeding to the consideration of the defences urged by the defendants in execution, it is proper that we should examine a preliminary question presented by the claim in the deed from Fowler to BoyJcin, which plaintiffs contend, precludes the defendants from the defence relied on. It is urged that, by the claim of non warranty, in which Fowler stipulates that he shall not be bound by the vendor’s warranty of title, but nevertheless agrees “ in case the purchaser shall be evicted, to return him the principal of the consideration, but nothing more,” defendants can not retain any portion of the price, unless an actual eviction shall have taken place, a fortiori, that he can not retain it from the apprehension of eviction ; the obligation to return being stipulated, solely on the condition of eviction. *

That this clause has limited the legal liability of the vendor in warranty, can not, we think, be questioned, but not to the extent contended for. In the 2481st Article of the Code, it is provided that, “ Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of eviction, and purchased at his peril and risk.” This obligation which the law imposes on the vendor, and which would have been operative without any stipulation embodying it in the contract, is reiterated by Fowler. Ve understand the restrictive words in the clause of non warranty to be “ but nothing more,” and that they have relation to claims which the vendee might have, beyond the restitution of the price, e. g. the fruits and revenues, the costs of suit or other damages for which he might be liable. Agreements by which parties make for themselves a law, in derogation of the general law, should be construed strictly.

The agreement to refund in case of eviction, added nothing to the legal obligation, nor did the exclusion of warranty, preclude the legal consequences of the sale, except as specially provided for, and it is no less a legal consequence of the sale that the vendee may suspend the price in case of disturbance than that the vendor shall refund it, in case of eviction. 0. 0. 2481, 2535.

Both rights are expressly given, and the exercise of them should not be denied, unless they have been waived expressly or by the clearest implication.

"We will proceed now to the grounds of opposition, premising however, that the land sold by Fowler, was included in a larger tract, confirmed to Robert Martin, assignee of Miguel Laturnino, in whose favor an order of survey was made by Gov. Gayoso, in 1798. That James Bowie, who became the owner of the -whole tract thus confirmed, sold to Thomas, without specifications as to depth or front, one thousand superficial arpents in January, 1828 : the land sold, to bo taken from the upper end of the tract and to be so laid off as to make the lower line parallel with the upper, and have an equal width on both sides of the bayou, nothing being said of the depth. In 1836, Thomas sells to Bogart one thousand arpents, measuring twenty-five arpents front on each side of the bayou, by twenty arpents in depth, also on each side of the bayou. Fowler subsequently acquired Bogart’s title and sold to BoyJcin by the same description.

The testimoney of Taylor, as applied to the plat of survey contained in the record and marked B. satisfactorily establishes that there is embraced within the calls of Fowler's title, an area of only 807 12 arpens, which leaves a deficiency of 192 88 arpens. This deficiency results from the want of depth on the north side of the bayou, the side lines being intercepted by the back lines of the claim as located, at a distance of about nine arpens from the bayou. But it is said that the opponents can not avail themselves of this exception, inasmuch as the confirmation calls for forty arpens in depth on each side of the bayou and that the survey and location which were not approved until July, 1863, migWyhave been so made as to give the required depth on the north side of the bayou.

It is true that the survey and location of the Martin claim, were not approved until after the sale by plaintiffs’ ancestor; yet it is in evidence that they were made in accordance with its calls and the known rules for surveying Spanish grants, fronting on water courses. Moreover it is in evidence, that though the survey was not approved until 1853, it was made as early as 1825, before Bowie sold to the vendor. The irregularity of the location then, if any there be, can not be imputed to defendants. Nor 'can the defendants be required, as contended, to make up the deficiency, by taking lands within the limits of the grant in the rear of the location on the south side of the bayou, their title limiting them to twenty arpents in depth.

Whether the location of the claim, so that the full depth could not be obtained in conformity with the calls of the titles of defendant, amounts in law to an eviction or not, — about which so much has been said, — is unimportant to this issue. The present question is not one of eviction. This part of the opposition is based on the Articles 24G7 and 2468, which declare the obligation of the vendor to be, to deliver the full extent of the premises sold or upon his failure to do so, to submit to a proportionate diminution of the price.

That a deficiency of 192 88 arpents exists, is, we think, fully established.

As regards the second objection, viz: that 123 90 arpents of the land lying on the right bank of the bayou, is and was before the sale, in the possession of Wright, -who claims it as owner under an adverse title.

Erom the recitals in the deeds from Fowler to Boykin, and from Boykin to the defendants, possession of the land as sold, is acknowledged by the vendees respectively, and there is no evidence when the alleged disturbance commenced, or under what claim adverse possession is held by Wright. , The only evidence of disturbance, is the simple admission of parties that a suit instituted by the defendants against Wright, for the recovery of 123 90 arpents as represented in a plat on file, is now pending. We think that to avail themselves of this objection, opponents should have proved that Wright claimed to hold under an adverse title, having its orign before the sale from Fowler to Boykin, or that his possession commenced before that time. That the warranty should have existence, it is necessary the adverse right should have existed before the sale; and if this right was before the sale an imperfect one and afterwards perfected by the negligence of the buyer, he has no claim for warranty. 0. 0. 2478.

It is therefore ordered and decreed, that the judgment of the District Court be reversed and set aside; that the opposition of defendants be overruled and dismissed, and that petitioners be and they hereby authorized to proceed with their seizure and sale upon crediting the writ with $4470 16, (the credit to be applied in deduction of the first note due for $9994,) that being the amount to which the defendants are entitled as a diminution of the price proportionate to the deficiency in quantity of the land sold, reserving, however, to defendants their right to proceed for a proportionate restitution of the price in case judgment be rendered, in the petitory action against Wright, decreeing said Wright to he the owner of the 123 90 arpents sued for by defendants.

It is further decreed, that the costs of both courts, he paid by plaintiffs and appellees.

Rehearing refused.