Hodge v. Moore

3 Rob. 400 | La. | 1843

Morphy, J.

We question much the correctness of the decision below. In a, government like our-s, every citizen is bound1 at his peril, to know the law applicable to'his case ; and' no one can-be permitted to allege his ignorance of the law. We incline- to-think that article 2535 does not contemplate- a case in which the-purchaser’s fear of being disquieted arises from his doubts on a-naked point of law, but one in which his apprehension results; from facts and circumstances connected with matters of law, which may render a title defective, or give to a third person some claim to or on the property he has bought. But, be- this as it* may, the present case must be decided on a different ground, urged by the appellee’s counsel. H-e- contends- that plaintiff has; not entitled himself to the damages he claims, by putting Moore legally in default, before he proceeded to a re-sale of the property. The evidence shows that the defendant- was several times- requested verbally and in writing, to call at the office of the notary, Cenas, and sign the deed of sale ; and that he* was- notified that, if he failed so to do, the property would be sold on his account and risk, and that he would be held responsible in damages. The notary testifies that, in February, 1.83-7, at the- request of, Hodge, he prepared an act of sale, from him to Moore, of the property in-question. That having met Moore, he tol'd him that the act was prepared, and that Moore answered that he deferred completing the sale in consequence of the pendency of a suit brought for- the-purpose of testing the power of a merchant, under protest, to make a good title to real property. That the act prepared has remained since then, with other unfinished acts, in a calvier, or book kept for such papers. That as he recollects of no mortgage certificate having been, at that time, applied for or obtained, the act is, in its present state, incomplete, and is such a document as he would' not allow a purchaser to sign, unless he insisted upon signing it, and directly waived all its informalities, &c. From this testimony, it is clear that the act of Sale which it behoved plaintiff to render to the defendant, in order to put him in mora, under article 1907 of the Civil Code, and our decision in Stewart v. Paulding, 6 La. 153, Was not complete. It was not such a conveyance as the purchaser Was bound to sign. He was entitled to have an act of sale drawn up in strict conformity with the law, which requires that every notary shall obtain a certificate of the privileges and mortgages existing'on the property sold, and shall mention them in the conveyance. Art. 3328. It is true that the same witness adds, that had the parties come before him, at any particular hour, to complete the sale, a certificate could have been procured in a short time. But it might as well be contended that the printed form of a notarial sale, if signed by the vendor, should be considered as a proper title to be tendered, because it could be filled up within a time still shorter than that necessary to procure a certificate, which sometimes requires long researches to be made in the archives of the Recorder of Mortgages. Where a vendor resorts to the highly penal remedy given by article 2589 of the Code, he must be held to the strict requirements of the law. It may be said that the defendant did not specially plead any defect in the title tendered to him, but rested his refusal to carry the sale into effect on the single fact that Hodge was under protest. The putting a debtor in default is, under our law, a condition precedent to the recovery of damages, or the dissolution of a contract. The want of it need not be pleaded in defence, and can at any time be taken advantage of. Civ. Code, art. 1906. 6 Mart. N. S. 229.

Judgment affirmed.