13 La. Ann. 529 | La. | 1858
The parties to this suit present the question as to the manner in which Articles 2622, 2623 and 3522, No. 22, should be construed.
Plaintiff’s counsel contends that a thing cannot become litigious until there is a contestation concerning it, viz : an answer putting the cause of action at issue. On the other hand, the defendant contends that there is a litigious right whenever a suit is commenced ; that it becomes a litigious right by the commencement and existence of a lawsuit.
The plaintiff bases his argument upon Article 2623 of the Civil Code, which is in these words : “ A right is said to be litigious whenever there exists a suit and a contestation on the same,” and the commentators upon the corresponding Article of the Napoleon Code.
The defendant relies upon No. 22 of Article 3522 of the Civil Code, which declares that “ litigious rights are those which cannot be exercised without undergoing a lawsuit.”
The intervenor’s title was acquired after suit brought, and in pursuance of a previous contract, in which it was expressly recited that plaintiffs were unjustly kept out of possession, and that a suit was required to establish their claims thereto and put them in possession, and in which the intervenor bound himself to pay all expenses attending the suit, and to save the plaintiffs harmless from all costs and other contingent expenses.
It further appears, from defendant’s answers to interrogatories, that the intervenor bought the interests of the plaintiffs at about one-twentieth of the value of the tract, at the instance, and after a consultation with Robinson, the defendant, and that the suit itself was instituted by lawyers employed by Robinson at the request of Long, the intervenor. And now Robinson, in the event of an eviction, demands judgment over against Cole, administrator of Moore, his warrantor. We think that the parties plaintiff and intervenors are estopped by their recitals and their conduct from now denying that the right which Long purchased was a litigious right. There is evident collusion between them and the defendant, and we think we shall do justice by holding them to their admissions, and considering them within the spirit of Articles 2622 and 2623 of the Oivil Code. If a technical contestatio litis had not yet been formed, the parties have admitted in their solemn acts that a real one was before them.
We see no objection to the form in which the tender was made and the money paid into court.
i There being collusion between these parties we think the party cited in warranty was justified in making the tender.
Judgment affirmed.