13 La. 344 | La. | 1839
delivered the opinion of the court.
In January, 1837, the plaintiffs instituted this action to rescind a public sale of town lots, made to the defendant, by the mayor, aldermen, and inhabitants of the city of New-Orleans, on the ground that he had failed to comply with the terms and conditions of the adjudication, and that he had not signed the act of sale.
The defendant denied all the allegations of the plaintiffs, which could entitle them in any manner to rescind the sale, and averred that he had always been ready to do all which in law he was bound to do, but that the plaintiffs were in fault. He prayed to be quieted in his possession and title, and for general relief. Judgment was given in his favor, and the plaintiffs appealed.
Before the plaintiffs can maintain this action, it is incumbent upon them to show that they are subrogated to the rights of the original vendors. This is a link in their chain of title, without which they cannot proceed, and the defendant has the right to avail himself of the want of it, under his pleadings. In 1836, the corporation, of the mayor, aldermen, and inhabitants of the city of New-Orleans, ceased to exist (except for the purposes of liquidation,) and the municipal government of the city was vested in three distinct municipalities, of which the plaintiffs are one. The 15th section of the act creating this new form of government, provides that
The plaintiffs have shown a resolution of ihe old city council, passed on the 30th October, 1835, authorizing the mayor to accept horn the defendant, and other purchasers of town property, who had not complied wilh the conditions of the sale, a retrocession and relinquishment of all the right, title and privilege, which they had acquired to the said property by the sale and adjudication. They have also given in evidence, a paper dated in December, 1835, signed by the defendant, and purporting to be a notarial act between him and the mayor, containing a retrocession and relinquishment, in conformity with the aforesaid ordinance; that paper is not signed by the mayor and the notary, and is not attested by witnesses.
The plaintiffs have argued in this court, that this act of the defendant is binding upon him, and that the institution of this suit is a sufficient acceptance of it on the part of the plaintiffs; but there are many satisfactory answers to this argument:
I. Although the signature to the act is proved, the date is left uncertain, and that uncertainty cannot be supplied by us.-
II. The suit cannot be considered as an acceptance of a retrocession, because the averments in the petition are inconsistent with the fact that a retrocession existed ; an action of rescission, necessarily, pre-supposes a contract to be rescinded.
III. The signing of that act by the defendant, if its date had been proved, was a mere pollicitation, which ceased to have any effect at the expiration of the charter of the former corporation in 1836. Louisiana Code, article 1804.
IV. When the former corporation ceased to exist, the condition of the parties to this suit was fixed, and the plaintiffs have never had since, capacity to accept the retrocession. The defendant owes a sum of money, which the mayor and commissioners of the sinking fund, are alone entitled to receive.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed with costs.