Brazeale v. Bordelon

| La. | Oct 15, 1840

Simon, J.,

delivered the opinion of the court.

Plaintiffs seek in this action to obtain a diminution of the price of a tract of land, by them purchased of the defendant Bordelon, on the ground of deficiency in the quantity of arpents of land sold them. An injunction was issued to stay the proceedings had under an order of seizure and sale of the said tract. Defendant joined issue by averring that the sale made to plaintiffs, was a sale per aversionem, in which the land is described with well defined boundaries; a survey of the premises was ordered to be made ; and, after a full investigation of the circumstances of the case, the District Court dissolved the injunction, and gave judgment against the plaintiffs for two hundred and fifty dollars, special damages for counsel’s fees, and for five hundred and eighty-two dollars, being ten per cent, on the debt enjoined. From this judgment plaintiffs appealed.

A probate sale of the tract of thedciecLsedresided’ as con_ taming two hundred and ^ or^iess,’ ;{jndm to boundary, is %onmf andThé not°obtSn a°dil mination of the price forany deficiency there measure. the

It is contended on the part of the appellees, that this is not only a sale per aversionem, but that plaintiffs cannot complain, as they are in possession of more land than was really sold to them, and as titles have been shown to the front part of the land, containing, as it appears from the survey returned, one hundred and fifty arpents, and to the double concession of the same by purchase made by the deceased, from the government of the United States, under the law of Congress of the 15th of June, 1832, containing eighty-four acres.

The clause of the act in which the land sold is described, is as follows : “ A certain tract or parcel of land, on which the said Perot and wife resided, situate in that parish, on both sides of Red River, containing about two hundred and twenty arpents, more or less, bounded above on both sides of the . . river by lands of the purchasers, and below on the left by lands also belonging to them, and on the right by land of Antoine Lenoir.” We have just bad occasion to decide in J the case of Phelps vs. Wilson5 ante 185; what we consider to be a sale per aversionem, and that., as it has been often decided by this court, a sale of this kind does not give any right to the purchaser to demand a diminution of the price on the allegation of a deficiency in the measurement of the land. The sale in question appears to come within the definition, and this alone would perhaps be sufficient to defeat the plaintiffs’ pretensions. Louisiana Code, article 2471. 3 Louisiana Reports 90. 4 Idem., 534. 7 Idem., 452. 14 Idem., 497. But it has been shown, that the' deceased purchased and paid for the back land or double concession belonging to his front tract, in June, 1836, and the receipt of the register and receiver of the land office, then vested a good and legal title, in the deceased, to the land therein mentioned. Land Laws, volume 2, p. 317. 3 Louisiana Reports, 62. From that moment it became a part of the deceased’s plantation, it was approved and sustained as such, no distinction between the two tracts. was made in the inventory, it was adjudicated as such to the plaintiffs at the sale at auction of the property of the deceased, and the same description was again given to it in the notarial act, that was subsequently executed ; so that the plaintiffs have really acquired more land than is expressed in their deed of sale. Under that view of the case, we cannot hesitate to say that the plaintiffs complain with bad grace, and that the injunction issued in this case was wrongfully obtained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court he affirmed, with costs.