6 La. 39 | La. | 1833
delivered the opinion of the court. r
This is a petitory action. The plaintiff claims ten arpents of land in front on the right bank of bayou Boeuf, embraced within the limit of the purchase made by Millar and Fulton of three tribes of Indians, an acquisition which has been fruitful of much litigation. In the present case both parties claim under persons who were partners or joint proprietors of the lands sold to the persons just mentioned.
The plaintiff’s title must be first examined. She claims under Levi Wells, who was admitted by Millar and Fulton to share with them in the purchase which they made of the Indians, and mediately of Millar, from whom she alleges Wells acquired the locus in quo.
Sometime after the sale from the Indians, Millar, Fulton, Wells, and 1 larke, proceeded to m ike a survey of the premises, and to lay off the portion each was entitled to. The facts relating to this transaction, are circumstantially detailed in the case of Compton vs. Mathews, and need not be repeated here, 3 La. Rep. 28.
It is proved by parol evidence, that an agreement not reduced to writing, existed between Millar and Wells, that in case either of them sold lands within the limits assigned to the other, that the same quantity should be given out of the portion of the vendor in lieu thereof. This statement is made in the belief that it is justified by the proofs in the cause. The objections made to its correctness will be noticed hereafter.
In pursuance thereof, Millar sold land within the limits of the land set apart to Wells, and on the 28th of May, 1815, Wells, by last will and testament, bequeathed to his natural son Willis Wells, ten arpents of land, embraced by the portion which fell to Millar in the original partition. The description given to this legacy in the will is in the words, “I give and bequeath to Willis Wells, and his heirs and assigns for ever, a tract of land containing ten arpents front with the ordinary depth, to be laid off on the right hand
Subsequent to the execution of this testament, and preyious to the month of April, 1820, Millar gave a power of attorney to one Scott, to relinquish to the heirs of Wells his right to so much land within the limits of his part of the Indian purchase, as would be equivalent to the quantity he had sold within the portion of their father. As the power conferred by this mandate, has been the subject of much contest at the bar, and as a true understanding of it, has an important influence on the rights of the parties now before us, it is proper to set it out at length. What follows is a copy of that given in evidence.
“Know all men by these presents, that whereas, William Millar and Levi Wells, in his life time, held each a portion of the land purchased of the Chocto, Pascagoula, and Biloxi Indians, situated on the bayou Boeuf, in the parish of Rapides, and whereas, the lines were not ascertained, and whereas, it was understood that William Millar might dispose of certain lands at designated places, particularly to Clements and Gardner, upon his conveying to the said Wells as much land as should appear to belong to the said Wells when the lines should be new and the quantity ascertained. Now, therefore, I William Millar, do by these presents, constitute and appoint Thomas C. Scott, my true and lawful attorney for this special purpose, to convey to the heirs of Levi Wells as much land out of my claim as shall appear to fall within their lines which I have sold, but without any warranty: and I will warrant what he shall do in the premises.5’
On the 17th April, 1820, the agent thus appointed, and the heirs of Levi Wells, passed an act which was duly recorded in the office of the parish judge of the parish of Rapides, where the land now in dispute is situated. By this act the attorney of Millar relinquished to the heirs of Wells, thirty-seven arpents in front to begin on the lower corner of a tract of land belonging to the estate of Levi Wells, thence down the bayou, descending. It is expressed that the
Willis Wells, the legatee of Levi Wells, sold the ten arpents in front bequeathed to him, to the husband of the plaintiff. Under this purchase, she in her own right, and as her representative of the heirs of her husband, claims the locus in quo.
The defendant’s pretensions rest on a sale made by Millar to Daniel Clarke, on the 19th March, 1812. The instrument was executed before Pierre Pedescleaux, a notary public of New-Orleans, and conveys twenty-five arpents of land on the front of the bayou Bceuf, with the depth which may be found, bounded above by lands of Levi Wells, and below by those of the vendor. This sale was prior in point of time to the bequeit made by Wells in his will, and to the relinquishment made on the part of Millar of the land so bequeathed, but it never was recorded in the parish where the property is situated. A great deal has been said on the part of the plaintiff, in regard to the true location of the land which passed by this conveyance, and it has been strenuously contended, that it was contemplated to convey premises lying at a great distance from the place now in dispute. On the part of the defendant it has also been seriously urged, that the relinquishment on the part of Millar does not embrace the locus in quo. Neither of these objections appears to us well founded. The evidence satisfies us, that both conveyances cover the contested land, and that the case mus tbe decided on the strength of the respective titles.
The first ground taken in opposition by the plaintiff’s
It is next objected that the gift to Willis Wells is null and void, because by a positive provision of our code, the legacy which is made of the property of an other is declared to be so, whether the testator knew the iact or was ignorant of it. 0 In the application of this principle of law to the case before us’ ^ *3 urge<I? that at the time and before Wells bequeathed lan<Ito son? Millar had already sold it to Clarke. It was consequently Clarke’s property, and could not be the subject of a testamentary disposition in Wells’ will. This argument overlooks the familiar doctrine of our law that the purchaser of real estate may be the owner quoad the vendor, and that he is not so in relation to third persons who may acquire a real right into or on the thing, until his contract is duly registered in the parish where the property is situated. Our law declares that the sale of the property of another is null and void, and yet nothing is more common than that the second vendee who bona fide buys, and records his title, holds the object bought in preference to a previous purchaser who neglects this formality. In such a case there
This brings us to the inquiry whether at the time Levi Wells made his will, he had such a right in the land, as enabled him, in case that right was subsequently evidenced by a written act duly registered, to hold the property. It is in evidence that a parol agreement existed between Millar and Wells, that if a buyer from either should be located within the portion of the Indian purchase, set apart to the other, they would approve of the location and take in lieu thereof the same quantity of land within the limits belonging to the vendor. In other words they agreed to exchange lands in rase the contingency contemplated should occur.That contingency had happened before Wells made his will, and before Millar sold to Clarke. In the years 1809 and 1810, Millar sold one tract of land to Gardner, and an other to Clements, both of which he located within the portion that belonged to Wells. These sales gave to Wells a right to take the same quantity within the part which had fallen to Millar in the partition. But it is urged the choice of the land out of which the reimbursement was to be made, belonged to Millar, and that Wells could not select a particular spot, and make it either the object of a sale, or gift. In looking into the correctness of the position, it is unnecessary to inquire in whom the right of selection would be vested, under a contract where the owner agreed to sell an indefinite part of a larger tract of land for a sum of money. The contract before us must be
But it is further objected that the interest shown to exist in Wells to the land, which enabled him to make it the object of a legacy, is proved only by parol evidence, that his contract was not reduced to writing, and that it was null and void. This court has repeatedly decided that a verbal agreement for land or slaves, even under the provisions of our code was not null and void. That the defect which such a contract presented, related solely to the proof, and if one of the A J 1 acknowledged the agreement, or permitted parol evidence to be given of it without opposition, it was the duty of a court of justice to carry it into effect. Here we have written proof from the vendor that such a parol agreement . . * ¶ did exist. The conveyance of the agent oí Millar under the
It is next urged that the confirmation made by Millar to the heirs of Wells enured to their benefit, and not to that of the legatee. We have some doubt whether this objection can be made by a third party against him who is in possession under the will. But we have no doubt that when the heirs of a testator, acquire a title in that quality to property, in consequence of a right existing in their curator at the time of his death, and which right he had made the subject of a legacy, that the title so acquired, enures to the benefit of the legatee, because it was the duty of the heirs to carry the will into effect. O. Code, 240, arts. 141 and 142.
# # This brings us to the last point of importance in the cause, viz: the want of authority in Millar’s attorney to convey to the heirs of Wells the locus in quo. The power has been already set out. It authorises the agent to convey the same quantity of land within Millar’s claim, which Millar may have sold out of Wells’. It is urged that it never could have been in the contemplation of the principal to have confered authority on his agent to convey to the heirs of Wells, lands which had already been alienated to Clarke, and thus make him responsible in damages. This we readily believe. Au- , , _ _ tnormes have been cited to us, that mandataries under a special power must confine themselves strictly within the x limits assigned to them, and that those who deal with them must at their peril see they do not exceed their authority. To which doctrine we also accede. But this doctrine like every other must be applied with these limitations which, necessarily, belong to it. It is true the party contracting must at his peril see the agent does not exceed his authority, but
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled ar.d reversed, and it is further decreed, that the plaintiff do recover of the defendant the premises claimed in the petition, with costs in both courts.