Whitney v. Saloy

26 La. Ann. 40 | La. | 1874

Wyly, J.

The plaintiff appeals from the judgment dissolving his injunclion restraining the executory proceedings of the defendant.

The ground for the injunction is, theie is a deficiency in the measure of the property bought by the plaintiff from the defendant, the price of which is secured by the mortgage sought to be enforced, and on account of this deficiency there should be a diminution of the price to the extent of $850. The property is described in the deed as follows:

“ The one-lialf of two certain squares of ground situate, lying and being in the city of Carrollton, in the parish of Jefferson in this State, and designated by the numbers fifty and fifty-one, on a plan made by Charles F. Zimpel, then a deputy surveyor of the United States, deposited in the office" of Felix Grima, a notary public in this city (New Orleans). Said squares being contiguous, and comprised between Madison, Fourth and Fifth streets, and Canal avenue; said one-half of said two squares fronting seven hundred feet on Fifth street, with like dimensions on the line dividing it from the other half of said two squares, three hundred and twenty-five feet on Canal avenue, and the same measurement on Madison street; all American measure; together with all the buildings and improvements thereon, etc. Being the same property which said vendor acquired from John E. Schaffer, sheriff,” etc.

From the description of the property we áre of the opinion that the sale was jper aversionem, reference to the plan and the streets hounding the squares controlling the expressions in regard to the measurement of the ground.

So, therefore, whether there he a deficiency of twenty-five feet in the measurement on Canal avenue or not, can not avail the plaintiff. Revised Code 2495; 14 La. 497. Besides, from the evidence, we are satisfied that the diminution complained of is not one-twentieth part of the totality of the objects sold.. Revised Code 2494.

Judgment affirmed.