16 La. 380 | La. | 1840
delivered the opinion of the court.
The defendant, Flint, after pleading sundry exceptions which were overruled, answered by admitting that he had purchased from the plaintiff, all the right, title and interest which he had acquired under the forced alienation, and'without warranty. That he made the purchase, as the plaintiff well knew at the time, merely to avoid litigation, and to re-convey the land to his co-defendant, who was the real owner; and who, at the time it was sold, was represented by the defendant’s brother, since, however, deceased, one of whose executors he was. That the parties understood each other at the time, and that the real value of the property was not considered. He denies that the plaintiff ever acquired any valid or just title to the land, by the adjudication of it by the parish judge, for various reasons, which it is not now necessary to detail. The defendant, Cox, joins in this defence, and alleges the nullity of all the proceedings which led to the alienation of the land in question.
Upon these questions the case was submitted to a jury,
It appears by a bill of exceptions, which it becomes our duty to consider, that the judge, who presided at the trial, charged the jury, that they were to ascertain whether the land sold by the plaintiff to Flint was worth, at the time of the sale, more than double the price for which it was sold ; next to inquire whether, at the time the citation was served on the defendant, Flint or Cox, the title was still in Flint; that if they found those facts from the evidence, and, further, if they found that before the suit was instituted, the plaintiff put the defendants in mor&, they should find for the plaintiff, but if they found that previous to the service of this suit, Flint had parted with his whole interest, or that the defendant, or either of them had been put in morá, then they should find for the defendants.
For the present, it is only necessary to notice that part of the charge which relates to the putting of the defendants in mor& previously to the institution of this suit, because the jury appears to have been influenced by that charge, and it becomes important to inquire, whether it be, as supposed by the district judge, an essential pre-requisite to a recovery in an action of rescission for lesion beyond moiety, that the defendant should be put in delay by any other means than the institution of the suit.
The principal object of this suit and action is the restitution of the property sold. The purchaser, for a price less than half the just value, is under no other legal obligation, in relation to his vendor, than to make such restitution.
" He is in no manner,” says Pothier, “debtor for the supplement of the just price, as he never bound himself beyond the payment of the price stipulated in the contract. The choice which the law gives him to make up the just value, is nothing more than a faculty which it confers on him, to
We are of opinion, that this is not one of those cases in •which a putting in default is required before instituting the action, which we have seen is, in fact, a suit to compel the performance of the only legal obligation, that of restoring the property to the vendor. What would form the object of a previous demand, supposed to be essential to put the party in default 1 Surely, not the payment of the supplement of the first price, which we have seen he is in no case legally bound to pay, and which is altogether vague and uncertain ; and can only be ascertained on the trial of the action of rescission itself. If it should be said that the restitution of the property itself should form the object of the previous demand, it may be answered, that the law does not require a previous demand, when the suit is one of revendication, or to enforce the performance of the principal obligation resulting from a contract, other than those for the payment of money where an amicable demand is required, and that merely in relation to costs or interest ex morh.
The verdict must, therefore, be set aside, and as justice requires that the case should be remanded, it becomes important, to inquire into the correctness of (hat part of the charge in which the judge appears to intimate, that the sole remaining question relates to the intrinsic value of the land at the time of the sale; and to notice'another bill of exceptions to the opinion which the judge expressed during the trial, that no evidence could be admitted in relation to the plaintiff’s title; and in refusing to permit a witness to be„sworn, in order to show that the public had so little confidence in titles acquired at forced sales for taxes, repairs of roads, &c., that nobody would give much for lands under such titles; that they were considered of little or no value; and further ruling, that no evidence could be given to invalidate the plaintiff’s title.
The plaintiff sold without warranty, and in the deed it is expressly staled that he transfers “only such right and title as he may have acquired by virtue of his purchase, as aforesaid.” On the part of the defendant it is specially pleaded, as matter of defence to this action, that the intrinsic value of the land, did not enter into the contemplation of the parties at the time of the sale ; that their only objection was to avoid litigation, growing out of the forced sale of the land for repairs of roads, and to replace things in the condition in which they were before the forced sale. It is true, the mere absence of warranty may not prevent the vendor from recovering, in an action of rescission for lesion b'eyond moiety, but courts of justice are bound to look through the forms in which parties have clothed their conventions, to their real nature and substance; and in the case now before us, if it be true, as alleged, that the parties understood at the time of their contract that it amounted to nothing more than a redemption of the land, and the extinguishment of a doubtful contested claim to the land, growing out of the forced alienation, then, clearly, it is not such a sale as would give rise to an action of rescission for lesion. The inquiry, therefore, ought not to have been confined to the intrinsic value of the land. The value of the plaintiff’s pretensions and the nature of his title, should have been examined and inquired into as matters put expressly in issue. The best writers on the subject admit, that the title of the vendor may, to a certain extent, be looked into in actions of this kind. Pothier, in his treatise on sales, considers the inquiry to be, not so much what is the intrinsic value of the thing, as what it was worth to the vendor. “ If,” says lie, “ the charge or risk from which the purchaser has been released, is one which would have fallen upon the vendor, if he had retained the estate; for example : If the estate which I have sold, was in the possession of an usurper, and the purchaser has taken upon himself the charge of suing for it, at liis risk, and without the right of calling me in as a party, or if I have charged him with a certain kind of eviction ; in this case, in order to ascertain whether the price stipulated by the contract, was or was not above one half of its just value, the
To apply these principles to the case now before us, it was a proper subject of inquiry, what were the pretensions of the plaintifF worth, rather than what was the intrinsic value of tlie land? He does not appear to have acquired possession, He purchased at a forced sale, paid only two hundred and seventy dollars for two thousand acres of land, and would have been obliged, probably, to embark in a law suit, before he ,,. r , J , could enjoy any advantages resulting from his purchase, with ’^e disadvantage of having to prove, as essential to make out his title, the authority of the police jury, a legal exercise of that authority, and an exact compliance with all the forms required by law, for the forced expropriation of the property of an absentee. Under the plea of the general issue, such evidence would, in our opinion, be admissible in the case. But, more especially, was it proper under the special plea in the record, to go into the inquiry whether the parties did not contemplate at the time, rather a renunciation of any right acquired under the public sale, in order to avoid trouble and perhaps litigation, than such a real sale of property for an inadequate price, as would entitle the plaintiff to be relieved against his own contract, by an action of lesion.