10 Rob. 365 | La. | 1845
On the 5th of April, 1841, the plaintiffs sold to the defendant, by authentic act, a tract of land of about five ar
Garlick made an application to the branch of the Union Bank at Plaquemine to lend him $4000, to be secured by a mortgage on the land, and a number of slaves named in his application. The bank agreed to do so, provided the titles to the property were satisfactory. They were referred to the attorney of the bank, who reported that the titles were good: “ But that no patent had as yet issued for the land. That if the bank insisted on that, the titles would not be perfect; otherwise, they would be. That a receipt is as much evidence of title as a patent under the old law ; it might not be so under the law of June 22d, 1838, and revived May 1st, 1840.” In consequence of this report, the bank declined to lend the money.
On the 17th of July, 1841, William H. Carr, the husband of Diana, one of the plaintiffs, addressed a letter to Garlick, stating that as the money had not been paid for the land within six weeks, he considered the sale null and void ; ^nd that Garlick
Sometime after the bank had declined to make the loan, on an application to the General Land Office for a patent for the land in the name of the plaintiffs, it was refused, on the ground that one had already been issued in the name of Andrew Hodge, junr., by virtue of an assignment to him by the plaintiffs. They denied the legality of any such assignment; and, together with the defendant, brought a suit against Hodge, to set it aside and quiet the title; in which action they were successful, and Hodge was decreed to have no title to the premises. About seven months after this judgment was rendered, the defendant not paying any part of the price, the plaintiffs had the second act or counter-letter recorded ; and some months subsequently commenced this suit to recover f4000, with legal interest from the times of payment and the execution of the mortgage and privilege.
The defendant, in his answer, admits the sale of the land as alleged and proved, and that he was to apply to the bank for a loan to pay for it, which he did, and was refused; wherefore he says that, according to the terms of the contract, the same was null and void. He avers that the plaintiffs illegally sold him a tract of land, to which they had no title. That they had previously sold it to Hodge, who held the patent, and refused to give it up; and that the suit against Hodge, as between him and the plaintiffs, was fraudulent and collusive, and intended to put them in a position to sue for the price of the land.
From all the evidence in the record, it is certain that, as between the plaintiffs and the defendant, it was, in the first instance, the intention that the former should sell, and the latter purchase the land upon one and two years credit; and that none of them had any idea of applying to the Union Bank for a loan until they appeared before the parish judge to pass the sale, and he suggested the probability of a loan being obtained, whereby the plaintiffs would receive $3500 in cash, instead of $4000 in instalments of one and two years, and the defendant obtain a longer time for the payment of the latter sum, than that agreed upon by the parties in the first instance; and the question arises whether, after the probability of a loan was suggested, the parties intended to make the obtaining of it a condition upon which the sale was to take effect, and to change their previous understanding and agreement ? When we look at the parol testimony on behalf of the defendant, and all the stipulations of the counter-letter or second contract, except the last clause, there cannot be a doubt as to the intention of the parties. An absolute sale was intended, and actually made for cash. By the counter-letter that sale was, in a certain event, to be changed into one upon terms of credit, and the acknowledgment of the cash having been paid annulled, and a mortgage stipulated to secure the price.
We do not any where find an absolute stipulation, on the part of the plaintiffs, to guaranty a loan being made by the bank, nor is it contended that such a warranty was intended; but the counsel for the defendant insists, and the court below so held, that they were bound to give him a good title so that he might obtain the loan. In the manner in which this position is stated, there may be some doubt of its correctness ; but admitting it to be true, it appears to us that it was in effect complied with. The attorney of the bank stated that “the titles of the applicant were good.” He says that no patent has yet been issued, and that if the bank insist on that, the title to the land would not be complete ; but that the receipt and certificate of the Register and
It remains for us to decide, what is the meaning and effect of the stipulations, “ that in case the whole of the money is not paid within from four to six weeks, or the half of the price discounted at bank interest of seven per cent, the said sale is to be null and void,” and in whose favor they are made, and who can invoke them. These words, if literally interpreted, appear to us contradictory of what precedes them in the act, and of doubtful meaning; we must, therefore, endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms. Civil Code, art. 1945. We do not believe it was the intention of the parties by the first clause in the stipulation, to declare that the defendant could, by neglecting or refusing for four or six weeks to pay the price, thereby annul the whole contract, because it would be at war with other provisions and agreements, and enable him to defeat the common will of the parties. It was clearly the object and
We are of opinion, that there is no foundation for the defence set up by the defendant, that the plaintiffs had divested themselves of title to the land by the sale to Hodge, and that the suit, by which said sale was declared null, and they quieted in their title and possession, was collusive and fraudulent. There is nothing in the circumstances to justify such an allegation; and if there were any thing, the defendant is as much implicated as any one of the plaintiffs, as he was a party with them to that suit, and cannot set up his own turpitude as a defence. The judgment in that case divests Hodge of all title or claim, — in fact he never set up any; quiets the title and possession in the defendant; and entitles him to the possession of the patent. It is general and final, and the time for taking an appeal has elapsed. The defendant, therefore, complains with an ill grace of a judgment which makes his title good, so far as the plaintiffs, the United States, and Hodge are concerned.
As to the apprehensions expressed, of being disturbed by the
Upon a full consideration of the whole case, we are of opinion that the judgment is erroneous, and must be reversed.
It is 'ordered and decreed, that the judgment of the District Court be annulled and reversed, and that the plaintiffs recover of the defendant, John Garlick, the sum of four thousand dollars, with interest at the rate of five per cent per annum on one half of said sum, from the 5th day of the month of April, 1842 until paid, and interest, at the same rate, on the other half of the same, from the 5th day of April, 1843, until paid ; and it is further decreed, that the mortgage, and vendor’s privilege in favor of the plaintiffs be recognized and rendered executory, and that process issue to sell the premises to satisfy the debt, interest, and costs ; the defendant paying the costs in both courts.