Berards' Heirs v. Berard

Mathews J. delivered the opinion of the Court. This suit is brought to recover from the defendant the price of atract of land said to have been adjudicated to .him at the sale of the succession of his father ; he being a co-heir with the plaintiffs &c. Payment is resisted by him on account of error falling on the substance of the thing sold. The plaintiffs obtained judgment in the Court below, from which the defendant appealed. If the error alleged on the part of the appellant is established by the testimony of the case, the legal consequence must be an avoidance of the contract: and it appears to us that the allegations made in the answer to this effect are supported by the evidence. The sale was made of a back concession which was to have beeq located in the rear of a plantation héld by the [4] ancestor of the parties to the present action. He and Ins'-gon ¿efenc[ant jn this suit, during the life time of the father caused the location to be made in another place. The proces-verbal of sale of the succession purpórts to sell thé right acquired under the inchoate title to land in the rear of the plantation as designated in the requéte. And oülieingsu-thepurcilPeaccor-ding to the proces-verbal of sale, he will be deemed to have purchased in errror affecting the of the thing sold. jjut we have no doubt of the intention of the purchaser befog to buy the tract which had been actually located. It was ° J . ... convenient to his residence — its principal revenue consists in wood and timber. It was the understanding of one 0p qie appraisers of the estate of Bernard the father, that this tract was by him appreciated. But it seems not to belong . . , , , , . . to the succession; and the vendor has consequently acquired no title under the adjudication to the property which he jntends to purchase, r As to him there is error in the sale affecting the substance 0Í the thing sold. • R is therefore ordered, adjudged and decreed, that the jU(igement of the District Court be avoided, annulled and re- : and it is further ordered,-adjudged and decreed, , , „ that judgement be here entered for the defendant, and appellant, with costs in both Courts.