55 So. 877 | La. | 1911
Opinion on the Merits
On the Merits.
In an act of date December 17, 1879, being the first of the above-mentioned acts, defendant’s father sold to plaintiff, in consideration of $200 cash, the N. E. % of section 33, township 20, range 16. It turned out that he was not owner of this land, and, so, eight years later, March 29, 1887, he executed another act, being the second of the above-mentioned acts, reciting that, in place of the said land
In December of the same year, 1887, he executed in favor of plaintiff, the third of the above-mentioned acts, selling to him, in consideration of $100 the S. E. % of the S. B. *4 of section 32, township 19, range 16, and the N. E. % of the N. E. % of section 5, township 16, range 19.
This last act is the only one that is referred to in the petitiQn. The description contained in it is alleged to be erroneous in that the section 32 is said to be in township 19, when in fact it is in township 20; and in that section 5 is said to be in township 16, range 19, when in fact it is in township 19, range 16; and, in that the land intended to be conveyed was not any part of said sections, but was the W. y2 of the S. W. % of section 33, township 20, range 16.
Although the petition makes no reference to the act of March 29, 1887, by which plaintiff acquired the S. y2 of S. E. % of section 32, and the N. E. % of N. E. % of section 5, and although plaintiff acquired the land in these sections by the said deed of March 29, 1887 (not referred to in the petition), and not by the said deed of December 10,1887 (which is alone referred to in the petition), the prayer of the petition is that the said deed of December 10, 1887, be corrected not only by making it apply to the W. % of S. W. % of section 33, but also by putting sections 32 and 5 in their right townships and ranges. And the judgment made all these corrections. ■
The theory of plaintiff’s suit (and we find that it is conformable to the facts) is that the land intended to be conveyed by this deed of December 10, 1887, was the W. % of the S. W. % of section 33, and no other, and that, in consequence, all reference to sections 32 and 5 was purely and simply by error. If so, the proper manner of correcting the description in that deed would seem to be by striking out altogether the description contained in it, and substituting, in lieu thereof, a description of the W. y2 of section 33 — the land intended to be conveyed. However, as the defendant has expressly consented that the description be corrected in so far as sections-32 and 5 are concerned, we shall simply affirm the judgment as written.
This parol evidence was objected to on the ground that, while parol is admissible for showing an error in the description of real estate in an act of sale, it is not admissible for taking out one piece of real'estate from the act and substituting another piece in its-place. No decision is cited in support of the-distinction here attempted to be made, whereas cases can be cited where the evidence was admitted for just such a substitution. Palangue v. Guesnon, 15 Da. 311. See Levy v. Ward, 33 La. Ann. 1035, and cases there cited.
It is suggested that the act of December 10, 1887, was intended merely as a confirmation of the sale, and a revocation of the donation, of March 29th of same year. That suggestion is founded upon nothing at all,, and impresses us as too far-fetched to be seriously considered. Moreover, the sale of March 29th stood in no need of confirmation, and the donation was a remunerative donation not revocable, and even if it had been revocable, no cause has been shown to have
Judgment affirmed.
Lead Opinion
Plaintiff complains that, by misdescription, the act of sale executed in .his favor by defendant’s father, from whom defendant holds as heir, has been made to refer to a different tract of land from the one intended to be sold, and he asks that the description in the deed be corrected. Judgment went against defendant in the lower •court. He paid the costs, and then appealed. 11] Motion was made to dismiss the appeal, on the ground that, by paying the costs, defendant had acquiesced in the judgment. The case was remanded to afford an opportunity to prove the circumstances under which the payment was made. They are, as follows: After consulting with his attorney as to whether to appeal or not, and after having been informed by his attorney that the bond, whether for a devolutive or a suspensive appeal, would be simply for costs plaintiff went to the courthouse, at the suggestion of his attorney, to ascertain what the .amount of the costs was; and as the amount proved to be small, he then and there paid ■them, rather than go to the trouble of furaiishing bond. I-Ie understood (in fact, says that he was told by the clerk of court) that it would not prejudice his right of appeal, and that, in the event his appeal was successful, the amount would be reimbursed him. After having made this payment, he returned to the office of his attorney to instruct him to take an appeal, but, not finding the attorney in, he left him word to take the appeal, and the attorney did it, and never knew thát the costs had been paid until so advised by the motion to dismiss the appeal.
Article 567, O. R., provides that:
“The party against whom judgment has been rendered cannot appeal, if he have acquiesced in the same, by executing it voluntarily.” .
“To take away the right of appeal there must be an unconditional, voluntary and absolute acquiescence in the judgment rendered on the part of the appellant.” Jackson v. Machie, 33 La. Ann. 723.
“To execute voluntarily is to execute with the intention to confirm or ratify. The act from which confirmation or ratification is sought to be deduced must evince such intention clearly. and unequivocally. None will be inferred when the act can be otherwise explained.” Breaux v. Savoie, 39 La. Ann. 343, 1 South. 614; Hamilton v. Hodge, 30 La. Ann. 1290; Copeland v. Mickie, 17 La. 293.
Article 1846, Civil Code, provides:
“Error in law, as well as error in fact, invalidates a contract, where such error is its only or principal cause, subject to the following modifications and restrictions:
“(3) Error of law can never be alleged as the means of acquiring, though it may be invoked as the means of preventing loss or of recovering what has been given or paid under such error. The error, under which a possessor may be as to the legality of his title, shall not give him a right to prescribe under it.”
See, also, Barthet v. Andry, 14 La. 30.
The evidence leaves no doubt, that defendant had no intention whatever of acquiescing in the judgment; and that he paid these costs in error as to what the effect might be on his right of appeal.
The motion to dismiss is overruled.