Von Puhl v. Caire & Graugnard

His Honor, JOHN ST PAUL, rendered the opinion and decree of the Court, as follows: Gaskins & Rolling were the owners of a plantation with a sugar house thereon. [94] About the year 1904 the sugar house wa,s destroyed by fire and the machinery was sold to plaintiff, who took possession and removed part thereof but allowed the rest to remain standing under an agreement that it might so remain until plaintiff was ready to remove it. Some years later Gaskins & Bolling sold the plantation “together with the sugar house, steam engines and mills ’ ’ to defendants. The latter claim that title to the machinery still standing passed to them with the plantation as “immovable by destination” regardless of the unrecorded claim of plaintiff. But as a result of the fire the machinery though still standing ceased to be “made use of in carrying on the plantation works” and the sale thereof to plaintiff negative any intention on the part of the owner to use it in reconstructing the destroyed sugar house. C. C., 468, 476. It, therefore, lost its fictitious character of immovable by destination and resumed its natural character of movable. Folse vs. Triche, 113 La., 915; Weil vs. Lapeyre, 38 An., 303; Bank vs. Knapp, 22 An., 117. It is further claimed that as a sale of movable there was no such delivery of the property to plaintiff as would affect bona fide purchasers (which defendants undoubtedly were). The contention is made that plaintiff should have removed the machinery and not allowed it to remain on the plantation. The answer to this is that the law does not require the purchaser to remove the property in order to affect third persons, it is sufficient that the purchaser have been given [95] possession thereof, i. e., that the property he put into his power. Opinion and decree, December 7th, 1914. Rehearing granted, January 5, 1915. C. C., 2477. In this case the purchaser appears to have been given physical possession of the machinery since he actually removed a part thereof and might have removed the balance had he wished to do so. • However even constructive possession sometimes suffices (C. C., 2247) and the delivery once made the vendor may be allowed to retain possession by precarious title; the only penalty imposed in that case being that the purchaser must prove that the sale was made in good faith. C. C., 2480; Edwards vs. Fairbanks & Gilman, 27 An., 449; Gauthier vs. Thomas, 4 Rob., 435; England vs. Insurance Co., 16 An., 5. In this case it is not only proved but admitted that the sale to plaintiff was real and in good faith. Judgment affirmed. Claiborne, J. — I am of the opinion that Articles 1922 and'2247 control this ease and that no delivery to Yon Phul contemplated by those articles was shown.