No. 8822 | La. | Apr 15, 1883
Lead Opinion
On Motion to Dismiss.
The opinion of the Court was delivered by
The appeal is by defendants, and their bond recites that they are “ bound in solido as principals and as sureties.” It i& not
The. motion is on the ground that these parties are set out in the bond as sureties as well as principáis, and there is no name of any other surety in the body of the bond.
There is another signature at the bottom beneath Brady’s, viz: J. Cahier. It is in the place where a surety signs. He does not sign as a witness. There are two witnesses to the instrument, and besides he has the L. S. immediately after his signature. No one but an obligor putshis name at tlte locus sigilli.
The point has been settled by the Succession of Lyons, unreported, and Coyle vs. Suc. Creevy, 34 Ann. 541.
The motion is refused.
Opinion on the Merits
On the Merits.
The plaintiff Vignie executed to-F. Charpaux an act of sale of the lands in controversy February 10th, 1871. Charpaux appears in the act as vendee, but he was really buying for Brady, to whom he transferred the title afterwards. The lands are in three tracts.
1. 'The Jeffersonville or Liberty Mill tract on the Tchefuncta river, described by boundaries, and quantity not stated. Brady’s description of it for the assessment roll of 1877 states 2840 acres fronting the Tchefuncta river, formerly the Liberty Mill tract.
2. The Abita tract, 422 acres.
3. A larger tract on the Abita river, described by designation of range, township, etc., from seven to nine miles distant from the first tract, containing 2508 acres.
Vignie alleges that he intended to sell, and Brady to buy, only the first two tracts, and that the third was included in the written sale through error of the draftsman of the deed. This suit is to recover the third tract.
It may be mentioned here that Mrs. Fortier was part owner with Vignie, although the title was in Vignie alone.
The case turns upon the right to introduce parol testimony to explain and vary the written title, the defendants objecting to it on the familiar ground.
It is a universal rule of jurisprudence that parol testimony is admissible to defeat written contracts when fraud is alleged, and error is often akin to fraud. The rule was applied in Palangue vs. Guesnon, 15 La. 311" court="La." date_filed="1840-05-15" href="https://app.midpage.ai/document/palangue-v-guesnon-7160231?utm_source=webapp" opinion_id="7160231">15 La. 311, where the error complained of was a mistake in the description of a lot in this city, and the previous decisions of this Court and other authorities are there cited. Ibid, 313. The same doctrine
The parol testimony being admitted, there can be no doubt of the real intention of the parties. Vignie has listed the third tract for taxation as his own ever since the sale of 1871, and Brady did the same for the first two tracts even down to 1882, and did not list the third tract. Maille, the agent of Vignie, states as a witness on the trial in 1882 that he applied to Brady to renounce ownership of the third tract, and shewed him that it was included in the land described in his deed—read the deed to him—but Brady doubted if Maille was reading from tbe deed, or reading it correctly, and said he had never claimed title to any land under Vignie’s deed but the Jeffersonville and small Abita tract, and when pressed to sign the paper to that effect, answered that he could not renounce title to land that he had not bought, and never claimed to own. Brady’s testimony is very meagre and unsatisfactory, and is said to be so because of extremo illness when it was given in his bedchamber.
The District Judge reviews the testimony with care, and had no doubt upon the subject, nor have we.
Judgment affirmed.
Rehearing refused.