75 So. 93 | La. | 1917
Lead Opinion
On Motion to Dismiss Appeal.
The appellee has not pointed out any illegality or informality in the appeal bond, and we fail to find any defect in it, except that the word “consideration” is used where the word “condition” was intended. This error was probably made in copying the bond into the transcript and is not a sufficient cause for dismissing the appeal.
The certificate of the clerk of court of the correctness and completeness of the transcript is in due form. The record appears to be complete, except that there are certain original documents attached which were filed in evidence and should have been copied into the transcript, and except also that the record does not contain an abstract of the minutes of the district court of the proceedings had in the case.
We do not find an order of appeal in the
We have concluded not to dismiss the appeal, but to remand the case to the district court to allow the appellant to have the transcript completed, and especially to supply an abstract of the minutes of the proceedings had in this case.
For the reasons assigned, this case is remanded to the district court, allowing the appellant 30 days in which to complete and return the transcript. The costs of appeal are to await the final judgment.
Opinion on the Merits
On the Merits.
On the 6th of October, 1899, Mrs. Marie Marinovich, then the wife of Dominico Rutólo, purchased by authentic act from the defendant, Matthew Jones, a tract of land described as follows, viz.;
“All that certain tract of land, with all the buildings and improvements thereon, situated in the parish of Natchitoches, on the loft bank of Cane river, descending, about 23 miles below the town of Natchitoches, and known as the Lattier Place, containing 391.77 acres, said plantation being made up of the original tracts which adjoin each other and constituting the one plantation hereinabove mentioned, said place being composed of section 97 containing 64.23 acres, section 98 containing 281.13, and section 21 containing 45.72 acres, all being in township 7 north, range 6 west, said property being bounded above by lands now or formerly owned by J. B. Metoyer, below by lands now or formerly owned by Mrs. George Kirkland, in the rear by Little river and in front by Cane river, being the same property acquired by Matthew Jones from J. H. Williams by deed of date April 17, 1897, recorded in Book 96, folio 121.”
It does not appear from the deed that the land was sold at a certain price per acre. The consideration stated in the deed was as follows: The purchaser surrendered to the vendor certain mortgage notes which she held against the plantation, amounting, with interest to the date of the sale, to the sum of $8,240. He canceled a debt which she owed him, amounting to $67.40, gave her a horse valued at $100, and $25 in cash, and promised to pay her $250 one year after the date of the sale.
It was recited in the deed that the property would be delivered to the purchaser on the 1st of January, 1900; and she did take possession on or about that date.
Mrs. Marinovich resided about 12 miles from the plantation, and seldom visited the place. It was cultivated by the tenants who rented from her.
Mrs. Marinovich died in 1912, and her executors obtained an order of court to sell the property to pay the debts of the succession. It was offered for sale at public auction and was adjudicated to one Hyman Cohn, the last and highest bidder, at the price of $10,600. Before paying the price of the adjudication, Cohn had the titles examined and a survey made of the place. The survey disclosed that the plantation contained only 263.30 acres. Section 97, fronting on Cane river and extending back in an easterly direction, between converging lines, contained the full area stated in the deed, 64.23 acres; but the northern portion of that section, containing 32.47 acres, was not within the boundaries stated in the deed. Only the southern part of that section, containing 31.76 acres, was below the northern boundary stated in the deed; the balance of the section, 32.47 acres, was in the plantation forming the northern boundary of the land of Mrs. Marinovich. Section 9S also contained the area stated in the deed, 281.13 acres; but only 182.98 acres of that section was embraced within the boundaries mentioned in the deed. The southern portion of that section, consisting of a strip of land extending from Cane river back between parallel lines to Little river and containing 96 acres, was embraced within the plantation formerly owned by Mrs. George Kirkland, forming the southern boundary of the Lattier Place, as
The defense is that this is not an action for restitution of a part of the purchase price on account of eviction from a part of the property sold, but is an action for diminution of the price on account of a deficiency in the area stated in the deed; that, as the Lattier Place described in the deed was designated by the adjoining tenements and sold from boundary to boundary, the purchaser, or her succession, is not entitled to a diminution of the price on account of a deficiency in the area;' that the action'for diminution of the price could only have been brought within one year from the date of the contract of sale, and is therefore barred by the prescription of one year, as provided in article 2498, R. C. C.; and that, if the action is not prescribed under that provision of the Code, it is prescribed by the lapse of 10 years, under article 3544, R. C. C., which provides that all personal actions except those otherwise provided for in the Code are prescribed by the lapse of 10 years.
This suit was filed on the 13th of November, 1913, and service of the petition was accepted and citation was waived on the 18th of that month; that is, more than 14 years after the date of the contract of sale.
Judgment was rendered in favor of the defendant, rejecting the demand of the executors, and they have appealed.
The district judge assigned no other reasons for his judgment and decree than that the law and the evidence were in favor of the defendant. It is stated in the brief filed by the learned counsel for the executors that
If this is an action for diminution of the price on account of a deficiency in the area of the land bought by Mrs. Marinovich, and not an action in warranty or for reimbursement of a part of the purchase price on account of an eviction from a part of the land bought by her, the action is prescribed.
The judgment appealed from is affirmed, at the cost of the appellants.