3 La. Ann. 569 | La. | 1848
Lead Opinion
The following opinion of the court Waff pronounced, on the first hearing of the case, by
The plaintiff sues for the rescisión of a sale of land made by her to the defendant, C. D. Brashear, on the ground of lesion beyond moiety. The petition alleges that Eliza, the wife of C. !>■ Brashear, has now the legal title, having purchased the laud át a sheriff’s sale made of it as the property of her husband. Judgment is asked against both the defendants. They filed a general denial, and C. D. Brashear set up -other grounds of defence, which it is not necessary to notice. There was judgment in favor of the plaintiff in the first instance, and the defendants appealed.
The counsel for the defendant, Eliza E. Brashear, has made the point that, under the provisions of the Civil Code, the action of rescisión on account of lesiou beyond moiety, is personal to the original vendee, and cannot be main» tained against a subsequent purchaser in good faith. -
In France, before the adoption of the Napoleon Code, the action of rescisión was allowed against third possessors, and the concluding part of article 1681 of that body of laws implies its maintainance under the new system. The dispositions of our Code on the subject of lesion beyond moiety are taken from the Napoléon Code, and article 1681 of that Code is substantially the same as article 1871 of ours, with the remarkable difference that the provision in relation to third possessors has been entirely omitted. This omission was not unintentional; and, in our opinion, justifies the belief that the legislature intended to restrict the action to the party to the contract which gives rise to it. The action thus limited, is analogous to that which the vendor of moveable effects has to enforce a privilege upon them for the price, so long as they remain in the possession of the vendee.
In the case of Bradford’s heirs v. Brown, 11 Mart. 217, the former Supreme Court held the action to be personal to the first vendee ; and, in default of any provision of law upon which the liability of subsequent purchasers can be based, that case appears to us a correct application of the rule that, the title of an honest purchaser is not affected by the latent equities existing between the previous holders of the property, purchased.
We cannot distinguish this case from that of Richardson v. Hyans, 1 Ann. Rep. 287. In that case there was a declaration of Winn, on the public records of the country, acknowledging an unencumbered title in Friend, to lands purchased by Winn from the United States. After the land had passed into the possession of third persons, we held Winn bound by his declaration, although it was shown to have been made without consideration. The only difference between the two cases, is, that the present plaintiff received nearly one half the value of the land sold by her, while Winn received nothing whatever for the transfer he made. This difference cannot surely affect the principle of the decision, or modify it in favor of the plaintiff’s claim. See 9 La. 290. 11 La. p. 408.
The plaintiff alleges the legal title to be in Eliza E. Brashear; she contests neither her capacity nor her good faith. 'Eliza E. Brashear is to all legal intents a third possessor; her husband was the master of the community ; the property in controversy was sold as his own to pay debts, which he was, under all circumstances, bound to pay; his wife had no title to it before her purchase, and could not, therefore, have been affected by latent equities existing between the plaintiff and her husband.
Rehearing
Same Case- — On an Application fob. a Re-hearing.
The judgment of the court on the re-hearing, was pronounced by
After a careful reexamination of this case, which is obscurely presented by the pleadings and evidence, our minds are left in doubt whether the land purchased by Brashear was community property; and, if so, whether, at the time of the subsequent purchase at judicial sale by Mrs. Brashear, she had ceased to have an interest in the community. Bottfthese questions may be important in the decision of this cans.-. They may have a material influence upon the legal question, whether Mrs. Brashear can be considered as a third person, purchasing in good faith and exempt from liability. Without wishing to be considered as now expressing an opinion upon the legal question under the hypothesis that the property once belonged to the community, and that she had not ceased tp have an interest in the community before her purchase at sheriff’s sale, we think it best to remand the cause for further evidence. When principles of grave moment are involved, the court prefers riot to act upon an hypothetical or doubtful state of facts.
We will merely say for the present that, we adhere to the opinion that the action of lesion does not extend to third persons purchasing in good faith from the vendee; and that Brashear must be held personally responsible, if there was lesion, even if his wife’s purchase should be maintained.
It is, therefore, decreed that the judgment rendered by the court below be reversed, and that this cause be remanded for a new trial and for further pro» p.eedings according to law: the plaintiff paying the costs of this appeal,