Lafon v. White

| La. | Jun 15, 1835

Mathews J.,

delivered the opinion of the court.

In this case the plaintiff claims, as heir instituted by the will of her father, J. P. Lafon, to one-half of his succession, an undivided moiety of a tract of land having eighteen and one-half arpents front on the Mississippi, with the ordinary depth of forty. The defendant White, called in warranty the heirs of Lewis, who undertook to support the title under which he holds. A judgment was rendered in the court below, which decreed to the plaintiff two-fifths of the land claimed, allowing time to ascertain by actual measurement the real quantity, &c. No judgment was rendered against the warrantors in favor of the defendant. From this judgment the plaintiff appealed, and complains that it is erroneous in not adjudging to her half of the land in question, and also, in compelling her to refund a portion of the price paid by the ancester of the warrantors for the whole tract, on an adjudication to him by the marshal, in pursuance of an execution which issued on a judgment rendered by the District Court of the United State's, &c.

It appears by the evidence of the case, that the property now in contestation belonged originally to B. Lafon, who by will, instituted his brother, J. P. Lafon, his sole heir, who subsequently died, after having made his will, by which he instituted his two daughters, one the p'resent"plaintiff, and the other Jeanne Philippe Lafon, his heirs. To the latter the testator bequeathed one-fifth of all his property, and directed the balance to be equally divided between tbe two heirs as instituted by the. will, and appointed his daughter Jeanne Philippe, executrix, &c.

These dispositions of the testament certainly gave to his heir three-fifths of the whole succession of the deceased, and under them she acquired as certain and clear a right to the one-fifth given as a legacy, as she did to the portion for which she was instituted heir. It is, in truth, rather to be considered in the light of an increased quantity of a portion of his estate, given by the father to one of his children, more than that bequeathed to the other; in other words, it was a mejora as known to the Spanish law, and not a simple legacy granted by the testator to a person in whom no rights vested as heir.

Money paid propertyasefrom vioted he ISaná which went to pay a debt of the owner, may be benefiting'1 bis succession to the second ínhenlance and úiq indirectty!riÜo? the^riJnEd'1^ cestor, must rethm as bePaeI succession111 Uie

How the executrix administered the succession does not appear; it seems however, that no partition ever took place between the heirs in relation to that part of'it situated in this country. She assumed to sell the whole land now in dispute to the ancestor of the warrantors; this sale was rescinded and the purchaser subsequently acquired, by judicial sale, all the right and title which she had in it, amounting in our opinion to three-fifths, in which she held the dominium directum as heir, whose portion was increased to the amount pf one-fifth by the testamentary dispositions of her ascendant.

These considerations we deem sufficient to terminate the dispute relating to the extent of title acquired by the purchase of the-rights of the heir Jeanne Philippe Lafon.

The next question has reference to that part of the judgment of the court below, which ordered the plaintiff to refund two-fifths of the price paid by the purchaser at the marshal’s sale. This sale was treated as a nullity by that court, and from the evidence in relation to it, we believe the court ¡n ¡bis respect acted correctly. But the money actually paid, (about eight hundred dollars) went to pay a debt due . _ ' , _ . . , , , . , „ , by B. Lafon, and may be considered as having benefited bis succession to that amount; and as the plaintiff inherits indirectly from him, we see no injustice in compelling her to . , 1 ° refund in proportion as she acquires from that succession.

These principles being settled, it only remains to modify *be judgment of the court below, according to the wishes and consent of the parties to the suit. The plaintiff claims in the alternative, one-half of the land or half the price for vvbi°b it sold; and the parties now prefer that judgment should be rendered for the price to be paid by the last purchaser to the plaintiff.

It is, therefore,' ordered, adjudged and decreed, that the judgment of the District Court be annulled, and by consent of parties, and in pursuance of the justice of the case, it is ordered, adjudged and decreed, that the plaintiff and appellant do recover two-fifth parts of the price which the defendant White is bound to pay for nine and one-fourth arpents front of land, having the ordinary depth of forty; being the same which he holds under titles derived from the late Joshua Lewis, &c., amounting to the sum» of three thousand seven hundred dollars, from which must be deducted two-fifths of eight hundred dollars, leaving the sum of three thousand three hundred and eighty dollars, to be paid according to the terms of the contract of sale, which sum when paid, shall discharge pro tanto, the said White from the obligations arising from his contract of purchase, &c. The warrantors to pay the costs of the District Court; those of this court to be borne by the appellant.