Canal Bank v. Copeland

| La. | May 15, 1834

Bullakd, J.,

delivered the opinion of the court.

The plaintiffs represent that they caused to be exposed for sale at public auction a portion of land situated partly in the parish of Jefferson and partly in that of Orleans, being a part of what is known as McCarty’s plantation, adjoining, but not included in the plan of a town lately laid out called Carroll-ton, which they had previously caused to be laid out and divided into five lots of irregular forms and unequal dimensions and a plan to be made by a surveyor. That at the public sale one of the lots designated as number five, containing about seven hundred and seventy-seven acres was adjudicated to the defendant for the price of twenty-six thousand five hundred dollars. That the conditions of the sale were, besides those respecting the terms of credit, that the purchasers should have the lines run at their own expense, and that they sold without warranty as to title or quantity. They allege that they have always been ready on their part to comply with the conditions of the sale, and have notified the defendant of their readiness to execute a notarial act of sale, but that the defendant refuses to comply with the conditions on his part. They pray judgment against him for so much of the price as is now due, and that he may be condemned to execute the notes and mortgages required by the contract.

. The defendant admits the sale and the conditions so far as they relate to the price and the terms of credit, but he alleges that at the time of the sale the plaintiffs caused it to be proclaimed by their authorised agent, that the title was as good as any in the state, and induced purchasers to believe that they would warrant the same, which they now refuse to do. He further avers that they have never offered to give him a good and valid title to the property, and that they have constantly refused to designate the courses and distances of the boundaries of the tract of land and to indicate to him the boundaries as they are bound to do, and which was indispensable to enable him to take possession and to verify the situation of the land. That the deed offered by the plaintiffs is not such as he is bound to accept, because it contains no stipulation of warranty and does not designate the boundaries of the tract of land.

The vend ornecessarily warowTacfsaiattdhcís u^ationofwarraftíratitutioiIieof>the purchaser was*aofsaie^f the danandpurchased at a sale at auc tion is completo by the adjudication, but the law requires an act of sale or writton oóiftractj índ the ?igjd“torrequire anco as^nuraiy bought and the conditionsof sale.

The objection as to the stipulation of warranty has not been insisted on in argument before this court. The declaration attributed by the defendant to Mr. Livermore at the public sale amounted in fact to nothing more, than is implied in all sales. The vendor necessarily warrants against his own acts ° an(l even with a stipulation of no warranty is liable for a restitution of the price unless the purchaser was aware at the tíme of the sale of the danger of eviction and purchased at bis peril. La. Code, 2480 and 2481.

The act of sale tendered to the defendant does not require oi mm any admission or acknowledgement which would exempt the plaintiffs from this modified warranty.

The sale was complete by the adjudication and the land ° became the property of the defendant; but the law requires A A J 3 Jan act of sale or written evidence of the contract, and the pur7 J-chaser has a right to require such a conveyance as will truly show what he bought, and the conditions of the sale. The only question therefore on the merits is whether the deed which the plaintiffs offer to execute is in conformity with the terms of the sale at auction.

The proces verbal of the auctioneer describes the several lots of land sold by him for the plaintiffs as composing formerly the plantation of B. McCarty. The lot purchased by the defendant as number five, (Y.) as per plan made by C. F. Zimpel, dated April 27th, 1833, and deposited in the office of G. R. Stringer, notary public. Among other conditions, concerning which there is no dispute, the proces verbal states = that “ the purchasers are to cause the lines of their respective purchases to be run at their own expense.” This plan was exhibited at the sale, and has been shown to us. It represents lot No. 5 as an irregular figure, containing seven hundred and seventy-seven acres of land. The plan embraces an out line of the whole city of New-Orleans and the upper suburbs, including the town of Carrollton, back of which the lot is represented to be situated. There is no scale on the plan, nor indication of any courses and distances; but it contains a reference to plans of survey in the office of the surveyor general. The certificate on the face of it is as follows: “plan of that part of McCarty’s plantation not included in Carrollton divided in five lots, compiled from plans made by Mr. Eringier, surveyor general.”

^“haCh°itahPde5snregan'ccipla" ÍKescripSon of the !and s°ld’ Where a lot of land is sold in ref-

It is contended by the defendant, that although he engaged to have the lines .run out at Ms own expense, yet the vendors are bound in their deed to furnish Mm such data as will enable him to do it. That the act of sale tendered does not furnish him such a description or designation of courses and distances or any point of departure, as will enable him either to identify the land or in case of a controversy with third persons to show that it is the land purchased of the plaintiffs. The grounds of defence are clearly expressed in the defendants letter to the directors of the bank. “I only insist that a point of beginning with the courses and distances of the lines be given to me, as then and not till then have I any lines which I can cause to be run.”

The plan made by Zimpel which was exhibited at the sale and referred to in the proces verbal of the auctioneer, must be regarded as forming a part of the description of the land sold, and the original title of McCarty as a part of the muniments of the defendant’s title.

It is true that the plan of Zimpel would not enable a surveyor without aid aliunde to ascertain whether the irregular figure No. 5, really embraces an area of seven hundred and seventy-seven acres, but by taking the measure of any square jn New-Orleans a scale or standard might he formed by which it might be ascertained upon geometrical principles, if the plan be accurately projected. But without recurring to the titles of McCarty, and the plans in the surveyor general’s office, it would be impossible to ascertain whether the lot really formed a part of McCarty’s plantation. The surveyor who made the plan says that he could with this plan run the lines and lay off the land adjudicated to the defendant. That he made the plan from one of Mr. Bringier without an actual admeasurement. Mr. Pilié the city surveyor says, that the limits of the McCarty plantation are well known, but that he could not with this plan alone and the deed tendered by the plaintiffs, run the lines of lot No. 5,' and that it often becomes necessary in making surveys to have recourse to other titles in establishing boundaries.

so whore land is designated on se^r refers to tit/es ÓfflM°Xteywm chaser to'runThé eient ’ desciption to render the sale binding on him.

The argument of the defendant then amounts to this, that although he engaged to run the lines at his own expense, yet this necessarily implies a previous condition on the part of the plaintiffs, that they should furnish him such a deed as will in itself, without reference to any thing extraneous, enable him to run them.

It is sufficient in our opinion if the act of sale describe the land as it was described when the purchase was made, and that it does not impose on the purchaser an impossible condix a a li011. Having purchased with reference to a plan which refers again to the McCarty title and the surveys in the office of the surveyor general, the whole must be taken together, and they furnish a designation of the lot which will enable , . . ¶. him to run the lines by recurring to the sources of information indicated in the deed and the plan. We are not acquainted with any principle of law which requires an act of sale to be so precise and definite as to courses and distances, and to furnish in itself such data, as alone would enable a surveyor to run the lines. It may be in this case difficult, but certainly not impossible, if the surveyor will recur to the guides indicated by the deed arid the plan.

The defendant took a bill of exceptions to the charge of the court to the jury. Among other things he instructed the jury that a sale at auction is not null because the written instructions of the vendors to the auctioneer are not proved on the trial of a case predicated on such sale. We concur in this opinion of the District Court, and it may be added, that there was in this case no question of the nullity of the sale.

A sale at auction is not null because the written instructions of the vendors to the auctioneer arc not produced on the trial.

The defendant propounded certain interrogatories to be answered on oath by the plaintiffs. The answer of the corporation was sworn to by the president. The defendant took a bill of exceptions to their admission by the court, on the ground that it was not shown that the person who made answer was president, and that he was not authorised to appear and answer. It is perhaps questionable whether the president of a corporation has a right to answer interrogatories in such cases without special authority, but as the answers according to our view of the case are immaterial, we forbear to express any opinion on the question.

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