Kemp v. Kemp

2 La. 240 | La. | 1831

Porter, J.,

delivered the opinion of the court.

This is an action of warranty, arising out of a partition made between -the co-heirs of a succession. The plaintiff alleges an eviction ot a tract of land set apart to her.

The cause has been twice tried in the inferior court. On the first trial, there was a verdict for the plaintiff — the court set it aside, and, on the second, the jury found for the defendant.

In the division of the succession, there fell to the plaintiff’s share, two tracts of land of 640 acres each ; the title to which had not then been recognized by the government of the United States.

t They have since been acted on, and one of them has Pben confirmed to the representatives of the estate, the other to a son of the deceased, called Caleb Kemp.

This confirmation of title in his name, it is contended, amounts to an eviction, which authorizes recourse in warranty, against all the parties to the partition.

The judge who tried the cause below, was of a different opinion, and so is this court. It does not follow, that because the title is confirmed in the name of a third person, that the right, title, and interest, to the land covered by it, may not have been in the ancestor at the time his succession was opened. Where a party resorts to his action of warranty, before a decision of a court of justice is made against him, he assumes and takes uponhimself the burthen of proving that the land belongs to another, and is, in truth acting against the title he holds under. He should, therefore, make out a clear case. The court cannot but feel, that he may, peradventure, be setting up claims which those in whose name the right is vested, would not think of asserting. At all events, it is some presumption against their validity, that instead of prosecuting them, they leave the task of enforcing their rights, to a purchaser, from those claiming adversely to them. In the instance before us, the presumption arising from the confirmation in the name of one of the co-heirs, is much weakened, if not entirely destroyed by the fact, that the land said now to belong to Caleb Kemp, was inventoried as the property of the deceased, and that the same Caleb Kemp, then of age, signed the inventory, recognising it as such. Without any explanation, shewing there was error in the confession, or that it wa's produced by fraud, we cannot say there is a clear case of eviction by an outstanding title, which will supply the place of a judgment in due course of law.

This is our judgment on the facts of the case, and in the supposition that the buyer has a right of action in warranty, before he is evicted by a judgment. But we must remark, that, by the 2538 article of the Louisiana Code, it is vervJl| questionable, whether after payment of the price, as is theT¡ case here, the purchaser can maintain such an action, until a determination against him in due course of law. The article just referred to, declares that he can neither demand restitution of the price, nor security, while the suit is pending, and a fortiori, it would seem he should not be permitted to do so, before suit is brought.

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