This case was before us in June last (See 8 Rob.), and was then decided as to all the points at issue, except so far as relates to a demand of twenty-one thousand five hundred dollars, set up by the curator against the heirs and opponents, as being the value of a tract of land, of which he was
On the new trial, a large number of witnesses were examined, and their testimony and estimates taken down in detail. They were examined as to the quality and quantity of the land, its situation, its capacity to produce sugar and other products, the facilities of navigation and communication with New Orleans, and as to many other things; also as to its value at almost every period from the date of the sale in 1823, up to the time of the trial.
From the statement of the witnesses, the sale from Durnford, and the record of DeGruy's Syndic v. Hennen and McDonogh, we ascertain that, in 1823, Durnford sold to Hennen, as agent of McDonogh, a tract of land of thirty arpents front on the bayou Guacha, by a depth of 110 arpents, for the sum of $4,000, with a full warranty of title. In July, 1831, McDonogh was evicted of this tract of land by the syndic of DeGruys (2 La. 544), and he now claims $21,500, as the damages sustained by the eviction. The land is situated abont eighteen miles from this city, fronts on one bayou, and has another, called des Families, running longitudinally through it, nearly its whole depth of 110 ar-pents. It is this; circumstance which has in some, if not a great degree, led to confusion in the statements of the witnesses, and to their widely different estimates of its value, as some of them seem to have spoken under the impression, that the depth of the high or tillable land was to be calculated from the bayou des Families, instead of commencing on the Ouacha, and running parallel, or nearly so, with the other stream. They all state that the high land is of excellent quality, well adapted to the culture of sugar-cane ; but they differ widely as to the quantity of such land, and the value. This difference, no doubt, arises from the uncertain and contradictory bases assumed for the various calculations. Several witnesses of respectability and intelligence estimate the value as high as $30,000, in 1831. One fixes
The probate judge, in the reasons for his opinion, says that he thinks the evidence makes out the value of the land at the time of eviction, as exceeding the assets of which the curator had the seizin, when the heirs presented themselves; but he .refused to give a judgment in favor of McDonogh for more than the sum admitted to be to the credit of the succession of Durn-ford,
In the old Code, p. 854, art. 54, we find the law to be, that the buyer, if evicted, “has aright to claim against the seller: 1st, the restitution of the price ; 2d, that of the fruits or revenues, when he is obliged to return them to the owner, who evicts him; 3d, all the costs occasioned, either by the suit in warranty against the buyer, or by that brought by the original plaintiff: 4th, in fine, the damages, when he has suffered any, besides the price that he has paid.” Article 57 says: \If, at the time of eviction, the thing sold has risen in- value, even yvithout the buyer having contributed thereto, the seller is bound to pay him the amount of said augmentation of value above the price of the sale. Article 1663 of the Code Napoleon, is almost in the same terms'. The above articles of the old Code have heretofore been brought up for the consideration of this court, and in the case of Fletchers’ Heirs v. Cavelier, &c. (10 La. 117), it was decided, that the obligations of the warrantor depend on the law in force at the time of sale, and that, according to the above articles, the seller is bound, on the eviction of his vendee, to pay the augmented value of the property, above the price of the sale; and the court said, in commenting upon the argument of the counsel for the war-rantors, “ it is, therefore, clear, that the original price added to the rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested.” Other things must, therefore, be taken into consideration.
Toullier, title 3, Des Contrats, No. 285, in commenting on the article 1633 of the Code Napoleon, says it seems to contain an exception to the general principle as to the responsibility for damages, and that if a heritage, or piece of groundis sold in good faith, which since the sale has quadrupled in value by the establishment of a new city, or the opening of a canal, or any other extraordinary event, the seller is bound, in case the vendee is evicted, and, notwithstanding his good faith, to reimburse what the ground may be worth, over and above the price, although
We have already said that the estimates of the witnesses are
The Court of Probates decreed that the curator should have a credit on his account for the sum of $9,809 26, which was the balance of the estate remaining in his hands ; although, in the reasons given by the judge for his judgment, he, in effect, says the evidence showed that the land was worth a great deal more: but he is of opinion, that so much of the claim as exceeds the assets in the hands of the curator, is prescribed. In this we think the judge wrong. The claim set up is an entire one, arising from the same cause; -and we cannot see how a part of it is presci'ibed, and a part not. The fact of the succession not being sufficient to pay all the demands against it, cannot give rise to prescription. When this cause was before us in June last, we said, in terms, that the claim set up was not prescribed; and, in approving that part of the reasons or arguments of the judge to prove that prescription did not run against it at all, it cannot be fairly said, that his arguments to prove that a part
For the purpose of finally closing the account of McDonogh according to law, it will be necessary to remand the cause again to the Probate Court, where the judge can enter a credit for eighteen thousand dollars on the account of the curator, on the 19th of July, 1831, strike the balance, and give a judgment according to article 1007 of the Code of Practice.
It is, therefore, ordered and decreed, that the judgment of the Probate Court be annulled and reversed, and the case remanded to that court, with directions to the judge thereof, in the settlement of the account of John McDonogh, as curator of the estate of Thomas Durnford, deceased, to give said McDonogh a credit on said account for the sum of eighteen thousand dollars, of the date of the 19th of July, in the year 1831, and to close the account, and give judgment according to law •, the opponents paying all the costs of their oppositions, and of this appeal; the other costs in settling the succession accounts, to be paid out of the funds in the hands of the curator.
9,809 26.