| La. | Sep 15, 1834
delivered the opinion of the court.
This case has been several times before this court. It becomes necessary to go back to the original contract, which gave rise to these proceedings, for a full understanding of the case. Duhamel purchased a tract of land, at the sale of the property of Melamjon’s succession, in 1819, and gave defendant Latiolais as his surety. The purchase money was payable on a credit, by instalments. On suit being brought against the defendants, for one of the instalments then due, they pleaded, that one Broussard had commenced a suit against them, for the same land, and that they were in great danger of eviction./ They further alleged, that the plaintiffs ought to be called in warranty, and as having sold what was not their own, the sale ought to be cancelled, in case Broussard succeeded in obtaining judgment, and that' damages should be awarded them.
The plaintiffs replied, that they were ready to give security, for the validity of Duhamel’s title to the land in question. The court ordered the security to be given, before the parish judge. The record does not show, whether such security was actually given ; but at a subsequent term, the defendants filed an amended answer, in which they allege, that Broussard’s suit had been prosecuted to a successful termination, in the Supreme Court; the consequence of which was, that Duhamel was evicted of three and a half arpents, of the tract of five arpents, which he had purchased at the probate sale of Melan$on’s succession. They further averred, that Broussard had taken possession of the land he had recovered, which formed so considerable a portion, of the original purchase, by Duhamel, that he would not have purchased the land, if he had known that he did not acquire a good title to the whole tract. The answer concluded by a prayer,
The defendants excepted to the filing of this amended petition, on the ground, that it changed the nature of the action, as originally brought by the plaintiffs; that it was not, in fact, an amended petition, but an attempt to institute, indirectly, an action of nullity on the judgment of the Supreme Court; or a replication to the defendant’s answer, setting up that judgment as a bar to the plaintiffs’ action.
A bill of exception was taken to the opinion of the court, permitting the amended petition to be filed.
In the answer to this amended petition, the defendants repeat the same objections, and further allege, that the judgment in favor of Broussard, in the Supreme Court, had been ordered to be executed, and that the land had actually been taken from the defendants, before the renunciation of Broussard, in consequence of which, the defendants had acquired a right, which could not be affected by the subsequent act of one of the parties.
The defendant Latiolais, the surety, in a separate answer, averred, that in consequence of the facts and circumstances alleged, in the original answer, and in the subsequent ones, he had been legally discharged from all liability, resulting from his suretyship, and that none of the allegations in the amended .petition, could affect him, as by the act of the plaintiffs, the subrogation to their right, privilege and mortgage, could no longer be made to operate in favor of Dubamel.
The District Court sustained the defence, and decreed a rescission of the sale. The plaintiffs appealed.
The bill of exception taken, to the admission of the amended petition, was acted on when this case was last before this court. See 4 La. Reports, 362.
The record' contains no evidence of an actual dispossession or ouster of Duhamel, either forced or voluntary. The present plaintiffs being called in warranty, to defend their vendee, in the opinion of this court, fully answered the call, by preventing the execution of the judgment of Broussard, and giving to their vendee, an absolute protection against the consequence of the judgment.
The execution of a’contract, according to its terms, and the intention of the parties, is more consonant to justice, law and equity, than the rescission of it, and acondemnation in damages ; provided, the contract or matter is still entire, and there has been no change in the situation of the parties.
Had the judgment in favor of Broussard, been followed by the execution 'of a writ of possession, or had Duhamel voluntarily executed it, by abandoning the premises, his claim against his vendor, would have been perfect, and the latter
It may be said, that the judgment in favor of Broussard, affected the land recovered, with any general mortgage that may have existed on his property; that Duhamel contracted for Melanpon’s title, and not for that of Broussard. To the first part of the objection, it is a sufficient answer, that de non apparentibus et de non existentibus eadem est lex; and that he, whose claim is grounded on the apprehension of demands from creditors, with a general mortgage, ought to show that a general mortgage exists. To the second part, an equally successful answer can be made. For, that even after a decision, that the plaintiffs, by procuring Broussard’s renunciation, have complied with their obligation to warrant and defend Duhamel’s title, they shall not be absolved from the obligation of defending it, in case any person claiming under Broussard, or as his mortgage creditors, should disturb the heirs of Duhamel in their possession,
Broussard’s renunciation, at any time before he obtained the judgment against Duhamel, would have disabled the latter from resisting the claims of the plaintiffs. His renunciation of that judgment, does not appear to this court, less efficient; and if it ever should prove insufficient, the remedy of Duhamel or his heirs, against his vendors, will be the same. Should he show, that there is room for apprehension, he might guard against its consequence, by a demand of security.
It is, therefore, ordered, adjudged and decreed, that the judgment- of the District Court be annulled, avoided and reversed; and proceeding to give such a judgment, as in our