Stokes v. Shackleford

| La. | Apr 15, 1838

Bullard, J.,

delivered the opinion of the court.

The plaintiff in his own right, and as tutor of bis minor child, sues for a tract of land under the following circumstances.

His wife, the mother of the minor, being entitled to receive a portion of her mother’s estate, the property was sold at public auction, with a view to a partition, and the land in question was adjudicated to the plaintifij who was also to receive a share coming to one of the minor heirs, whose tutor he was. In a settlement with the co-heirs he is charged with several sums of money and the price of the land, and the wife jointly with him signed a receipt for her share of the estate. She afterwards, with the authorization of the parish judge, in the absence of her husband, sold the land to the defendants, and since the death of the wife this suit is brought to recover it.

The purchase having been made during the existence of the marriage, and in the name of the husband, we are of opinion, that the land belonged to the community, and not to the wife as paraphernal. Louisiana Code.

.The wife was, therefore, without capacity to sell it under the authorization of the judge, and the purchaser acquired no title. With respect to one undivided half of the laud, therefore, we consider the husband’s title good.

But if the minor has any right or title, it must be as heir of his mother; aud the question presents itself, whether he can claim against his mother’s warranty, or whether be is not estopped or precluded by the exception of warranty 1 It is clear that although she was without title at the time of the sale, yet if she had acquired title afterwards, it would have accrued to the benefit of her vendee. No such thing occurred during her lifetime, but on her death her heir; became seized of one undivided half of thé property composing the community. The obligations of warranty descend to the heirs of the vendor, and one 0/ the obligations of warranty, indeed the first, is the buyer’á' peaceable possession of the thing sold. Louisiana Code, 2451. In that respect, the obligation is indivisible, although, with regard to damages, consequent upon an eviction, each heir may be bound only for his virile share. The minor plaintiff claiming through his mother, as heir at law, can have no better right than she had, and if she could not recover back the land, neither can her heir.

The obligation ■ of warranty descends to the heir of the vendor, and one of its first objects is the buyer’s peaceable possession of the thing sold. In this respect the obligation is indivisible, although in regard to damages consequent on eviction, each heir may only be bound for his virile share. Parole evidence will not be received, to show that the husband purchased certain property at the probate sale ofhis mother-in-law’s succession, for- his wife.

The court, in our opinión, did not err in refusing to let in parole evidence to show that the plaintiff: purchased at the probate sale for his wife.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and proceeding to render such judgment, as ought, in our-opinion, to have been given below, it is further adjudged and decreed, that the plaintiff, Young R. Stokes, recover of the defendant one undivided half of the tract of land described in his petition, and that the defendant be quieted in his title to the other-half; the costs of the District Court to b’e paid by the defendant, and those of the appeal by the plaintiff and appellee. . ■