9 Rob. 414 | La. | 1845
This action was instituted on the 24th of March, 1837. Its object was to recover from the defendant $2000, which had been advanced to him on the price of an improved lot of ground, in Carondelet, between Hevia and Poydras streets, adjudicated to the plaintiff, at auction, on the 1st of February preceding, for $14,500, payable $2000 cash, with an assumption of $6000 due on the property, and the balance in endorsed notes at six, twelve, and eighteen months. The petition alleges that this property, which was sold without any notice or certificate of mortgage, was found, on examination, to be encumbered with tacit and other mortgages not declared; that the-defendant was required to protect the purchaser against these mortgages, either by having them at once removed, or by giving proper security therefor, but that he refused to do so, although the plaintiff was willing and offered to comply with his engagements, whereby the contract was annulled by effect of law, as well as by the express agreement and consent of the said defendant. That, in the meanwhile, and under the supposition that Meux was really the owner of the property by a free and unencumbered tenure, the plaintiff paid him the cash amount of $2000, which he now refuses to-return. The defendant, after a general denial, admits the adjudication of the property to the plaintiff and his payment of $2000, but avers that he has not complied with the other conditions of the purchase, but, on, the contrary, has refused to perfect the sale, by giving his notes and assuming the payment required; and, pleading in reconvention, the defendant further avers, that the adjudication is valid, that the title to the property is good and unincumbered, and that the plaintiff is attempting illegally and unjustly to get rid of his contract since property has fallen in value, to his (defendant’s) damage in the sum of $15,000. He accordingly praj^s that the adjudication may be adjudged to be binding on the plaintiff, and that he may be decreed to comply with its
The evidence shows that at the time of the adjudication of the property, and of the institution of this suit, there existed a recorded mortgage of $20,000 against the defendant, as tutor of a minor ; that the plaintiff objecting to take the title with this incumbrance, some communications took place between the parties, through the notary who was to pass the sale, which resulted in a proposition on the part of the defendant to annul the adjudication, and to refund to plaintiff the cash payment of $2000 he had previously made, which proposition was accepted.. The testimony of the notary, which whs offered to prove this agreement, was objected to on the trial, but admitted by the judge, who, however, decided the case on the ground that the defendant’s consent to rescind the adjudication could not be proved by parol. In this opinion we concur. Title to real estate cannot be destroyed, any more than it can be created by parol testimony. If the auction adjudication transferred the property, the consent to annul it, which is equivalent to a retrocession, must be written; and that it does operate a transfer, at least between the parties, is clear from article 2586 of the Civil Code. This article provides that “ the adjudication is the completion of the sale ; the purchaser becomes the owner of the object adjudged, and the contract is from that time subjected to the same rules which govern the ordinary contract of sale.” In judicial sales the adjudication is, of itself, a complete title, and need not be followed by an act passed before a notary. Ib. art. 2601. Although in auction sales of real estate, an act of sale is to be passed, yet the proces-verbal or certificate of adjudication drawn up by the auctioneer, is as binding on the parties as would be an agreement to sell in writing. The signed declaration of that officer is made by law to supply the written
It is, therefore, ordered, that the judgment of the District Court be reversed, and that the case be remanded for further proceedings; the appellee to pay the costs of this appeal.
Martin, J. being interested in the question, did not sit on the trial of this case.