Phelps v. Wilson

| La. | Oct 15, 1840

Simon, J.,

delivered the opinion of the court.

The object of this action is to recover the sum of five hundred dollars, which the plaintiff estimates to be the value of the deficiency, by him found, in the measurement of a tract of land which he purchased of the defendant.

It appears from the evidence, that the tract sold is described in the act of sale, to be “a parcel of land situate, lying and being in the parish of Rapides, on the south side of Red River, being section number 26, township 3 north, range 1 east, containing eighty-nine 50-100 acres, agreeably to the register’s certificate, number 2036, together with all the improvements and appurtenances thereunto belonging. ” A survey of the land was made by order of the District Court, and instead of the quantity mentioned in the deed, only sixty-four 15-100 acres were found to exist within the limits of the fractional section.

The sale of a body of land, as a section, or a fractional section, described as containing a certain number of acres, is not a sale per aver« tionem> but of a limited body; and if there is a deficiency in the measure, or it comes short of the quantity sold it must give way to tlie diminution of price proportionate to the quantity it is short, if it exceeds one twentieth part.

Plaintiff contends that he is entitled to a diminution of the price under the article 2470 of the Louisiana Code; and the defendant insists that it is a sale per aversionem, under which lie is not bound to account for any deficiency in the land sold. The District Court gave judgment in favor of the plaintiff and the defendant appealed.

From the description of the tract in the deed of sale, followed by ils measure, it appears clear to us, that the defendant sold to the plaintiff a certain and limited body of land, and if so, a sale of this nature must give room to a diminution of the price, if it be found that the real measure comes short of the quantity expressed in the contract by one-twentieth part, Louisiana Code, article 2470. 5 Louisiana Reports, 358. Here, the certain and limited body sold is a section', the description or designation of the object is, section 26, township 3, &c. &c., and the extent or measure expressed is eighty-nine 50-100 acres. In order to be considered as a sale per aversionem, it is necessary that the object should be designated by adjoining tenements, and sold from boundary to boundary; Idem., article 2471, which circumstance does not exist in the sale in question. A section of land has certain limits, which are mathematically established and generally known ; from this, it becomes a certain and limited body, and if any deficiency be found in its measurement, this must necessarily result from mistakes made by the surveyor in calculating the superficial quantity of acres of land; and it would be unjust to make the purchaser lose, or to permit him to benefit from such mistakes or miscalculations, when the difference, in more or less quantity, is more than one-twentieth part. On the contrary, in a sale per aversionem, the purchaser agrees to take the extent of the land to be found between designated adjoining tenements, and from one boundary to the other, and, in our opinion, the sale from the defendant to plaintiff cannot be understood as being within this last description of contracts. In the same manner as the defendant would have been entitled to a supplement of price for the overplus of the measure, had there been any; so the plaintiff, in our opinion, ought to have the benefit of a diminution of said price, to the extent of the deficiency.

We have been referred, by defendant’s counsel, to several decisions of this court, as analogous to the present case ; but on a careful examination of all said decisions, we cannot say that any of them may be considered as applicable to the point in controversy. Iri the case reported, 2 Idem., 498, it was a sale of a plantation, bounded on both sides by adjoining described tenements. In 3 Idem., 90, the tract sold was bounded, above and below, by lands of other persons. In 4 Idem., 534, the land purchased was slated in the sale to be adjoining lands of P. L. on one side, and those of W. on the other. In 5 Idem., 239, it was a tract of ten arpents front, by the depth of seven, with certain fixed boundaries established by tracts of other persons. In 7 Idem., 455, the property sold had known definite boundaries which the court considered sufficient to control the enumeration of quantity ; and in 14 Idem,., 497, several lots were sold with reference to a plan, and boundaries of the streets by which they were surrounded, and such reference was also deemed sufficient to control the measurment of the lot.

With this view of the question, we think the district judge did not err in giving judgment in favor of the plaintiff.

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