2 Rob. 187 | La. | 1842
This was a petitory action decided by this court in favor of the plaintiffs, in March, 1839. The report of the case contains a full statement of all the pleadings and facts relative to the question of title. 13 La. 172. That judgment decrees to the petitioners two undivided thirds of the tract of land described in their petition, and in the defendant Bernard’s possession, and remands the case to the District Court “ to make a partition thereof according to law, and to ascertain and establish the value of the improvements made by Bernard on the premises, and his claim against the parties called in warranty." It' provides, further, that no writ of possession shall be issued in the case, until the plaintiffs shall have paid to Bernard the value of his improvements, &c. When the case was 'first before the inferior court, the defendant, Bernard, believing that an order was necessary to call in warranty the creditors of Marie Rivas, at the sale of whose estate he had purchased the land, moved for citations to be issued to them, and for time to be allowed to them to appear and answer, which the court refused, being of opinion that the creditors could not be cited in warranty, they being only liable (if at all,) for the restitution of the price of the property. To this decision Bernard took a bill of exceptions, which appears to have been overlooked by this court, or at least not adverted to in its opinion. On the return of the case to the District Court, the judge,'under the decree of this tribunal, thought it his duty to order citations to be issued to the creditors. The latter appeared, and excepted to the ' call in warranty, and their objections being overruled, they took a bill of exceptions. In their answer to the merits, the creditors pleaded the general issue; averred that, if liable at all, they were bound only for the restitution of so much of the price of the land sold to Bernard as they severally received; but that, in consequence of his neglect to have them cited in warranty, anterior to the rendition of the final judgment in the case, they are released from all liability to him, because, had they been cited, they could have made a successful defence. But should they be considered in any way liable, they deny the Allegations of the plaintiffs, and contend that the property claimed in this suit really belonged to the community existing between the father and mother of the plaintiffs, was lawfully adjudicated to Marie Rivas at the price of
MoRphy, J. The first question to be examined is that presented by the bill of exceptions, taken by the creditors in relation to the call in warranty made on them by the defendant Bernard. It has been urged by the counsel of the latter that, by sending the cause back to be tried contradictorily with the creditors on his claim against them, the judgment of this court has virtually decid
In support of this last position, Bernard and the creditors have united their efforts, and pressed it with great zeal and earnestness. They succeeded, it appears, in convincing the judge of the first instance, that the whole case should be opened, even with regard ' to the question of title. After hearing all the parties as if the case was submitted to him for the first time, he has reviewed the matters passed upon by this court, and has been pleased to declare that the decision made on them appeared to him to be in conformity with law and the rights of the parties ; from which we are to infer, that, had he thought differently, he would have believed himself authorized to give his judgment in opposition to that decision. How the counsel or the judge could have persuaded themselves that a final judgment of this court, which had become the property of the party obtaining it, could be thus disregarded and set at naught, is difficult to understand. The case was not remanded for a new trial on the main issue between the plaintiffs and the defendant Bernard, but, among other objects, to settle the claims of the latter against the parties responsible to him. The fact of these parties not having been cited in warranty, whether owing to the neglect of Bernard or not, might, indeed, release them from their liability, but could surely give them no right to disturb the final judgment rendered in the case before they were called in. They are bound by such judgment, and liable to Bernard, unless they can show that they had it in their power to defeat the plaintiffs’ action by means of defences, which were not used, owing to
The price paid by Bernard, was - - - $9100
Two-thirds of which are to be reimbursed to him, say, 6666 66 From which deducting - - - - - 3144 42
There remains only a sum of - - - - $3522 24
Having thus disposed of the several questions connected with the call in warranty for the reimbursement of the price, we shall proceed to consider the other matters, for the adjustment of which the case was remanded. On the trial the plaintiffs offered evidence to prove the value of the rents and profits of the land, since the service of the citation on the defendant Bernard. This was objected to, on the ground that the decree of this court, being silent as to the fruits or rents claimed by the plaintiffs, had disallowed them., It is clear that the naked question of title was alone decided, and that all other matters were left open to be settled on the remanding of the case. The omission of this court to mention the rents or fruits, among the respective claims of the parties growing out of the eviction, should not deprive the plaintiffs of them, as they were claimed in the petition, and have clearly not been passed upon. Civ. Code, 3416. 8 Mart. N. S. 620. 2 La. 173.
In relation to the improvements, the evidence shows that Bernard expen led $1000 on the sugar mill in putting up a cane carrier, and thoroughly repairing it, and that he built a few cabins, and cleared, ditched, and fenced between seventy and eighty acres of the land. It is contended by the plaintiffs’ counsel that the repairs to the sugar mill did not enhance its value, and must be considered to have been necessary to preserve it in a state of usefulness ; and that the wood on the land cleared, was worth as much as the labor of clearing it. The repairs to the sugar mill were a useful improvement, and certainly enhanced its value if they prevented it from becoming altogether useless. As to the clearing of the land, several witnesses, it is true, say that on well timbered land situated on the river Mississippi, the wood, if good, is worth the clearing ; but they do not speak in relation to this land, nor does the evidence show it to have been well timbered, nor the wood growing on it to have been of good quality. The witnesses tell as, moreover, that Bernard keeps no wood yard, and that he is not in the habit of selling wood ; and they all agree that the clearing of lands greatly enhances their value. To the plaintiffs,
It is, therefore, ordered that the judgment of the District Court be so amended as to allow to the defendant Bernard, only a sum of $1433 34, instead of $2133 33, for the balance due for improvements put on the land after deducting the value of rents due by him ; this sum to be paid as provided for in the said judgment, which is hereby affirmed in all other respects. The costs of this appeal to be borne by the appellants.