Morris v. Abat

Martin, J., delivered the opinion of the court. This is a petitory action, in which the plaintiff succeeded in recovering the land for which he commenced his suit. The defendant at the same time had judgment over against L. Millaudon, his warrantor, for the sum of three thousand dollars, that being the amount, or sum at which the land was estimated, in a contract of exchange between these two parties. Millaudon also had judgment over againsL Macarty, his vendor, for the sum of fifteen hundred dollars, the price which the latter received in his sale to the former. Millaudon and Macarty have both appealed to this court. The counsel for the former contended in.the argument at the bar : 1. That the warrantor is only responsible in case of eviction, for the restitution of the price for which he sold, and the damage the party evicted has sustained in consequence thereof. Louisiana Code, article 2482. 2. That damages in such cases consist of the loss sustained and the profits not made. IbuL 3. That a positive statutory provision, only, can silence the general rule. Macarty resists the claim in warranty against him, on the allegation that Millaudon’s conveyance to the defendant is simulated, and that it was made after he had notice of the present suit being about to be instituted, with a view of claiming heavy damages. The provjsiou °f ¶ the354 Civil tide V, which f"6^0*®Sg eviction, the increased value oi the property be-of^aie^nd'the period of evie-be restored by «y^saup-Presse(i and re-adoption of the eviction of the buyer the seller is only reponsi-th0efro^e prices the fruits or revenues when the vendee thin to thetrue owner; the costs of suit and daraa-ges, when the fiid^any8 ov'Jr “í1 ab,ove ,tlie price he has paid; The district, judge was of opinion that a bona fide vendor is not bound to indemnify his vendee for the amount of profits not made. He did not examine the case in relation to the allegation of simulation. We are, therefore, only called upon'to test the correctness of the opinion of the judge a quo, on the legal extent of the vendor’s liability in case of eviction of his vendee. It is not denied, that under the Civil Code of 1808, the liability of the vendor in cases of eviction, extended to an indemnification of the loss, which resulted from the profits arising from the difference, or increase in the value of the thing sold,, from circumstances or events over which the vendor had no control, and to which he had in nowise contributed. It expressly provides that “if the thing sold has risen in value, at the time of eviction, even without the aid of the buyer, the seller is bound to pay him the increase of value above the price of sale.” Civil Code, page 354, article 57. But the jurisconsults who compiled the Louisiana Code, recommended the suppression of this article,- as containing a .. 11 , , provision evidently dangerous, which might cause the rum of a vendor who acted in good faith, in a rising, growing and thrifty country like this, in which the fluctuations in the price of property were great,’and its value augmenting in an unparallelled degree. This article of the old code, which imposed such fearful responsibility on the seller, was accordingly suppressed,' and does not appear in the new one. The vendor’s liability is now clearly defined, and placed upon the most equitable * footing. He is now only responsible for the price at which he sold ; for the fruits or revenues, where the party evicted has restored them to the true owner; the costs of the suit of eviction and warranty, and for any damages the vendor has had to pay. See Louisiana Code, article 2482. ■ To say that the word damages, means the loss of profits not J ■, . r made, or to be responsible for the augmentation of the value of the thing sold at -the time of eviction, beyond the price of the original sale, would be to restore and carry into effect the . . , . entire provisions oí the article m the Civil Code which the [558] legislature intended to suppress and repeal. It would, in fact,, reinstate the article .of the former code, which was recommended by the jurisconsults to be suppressed, and which was formally suppressed and repealed on the adoption of the Louisiana Code. A city marshal sells property is^no^tnioh^a tielasntol'autho-rise his being cited as such, and condemned onPayfaiimedof. tltle- [558] When an avowedly important provision of law becomes an express-or textual one, the repeal of the, latter must carry with it that of the former, as an acknowledged principle and rule of law; otherwise the tepeal of the other would be vain and idle. The construction adopted by the district judge, is, in the opinion of this court, perfectly correct. Under this impression, we conclude that neither of the appellants, who are called in warranty, have any just and legal ground of complaint against the decision of the District Court. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. After the above opinion was pronounced, the following proceedings were had in this case. “On motion of Julien Seghers, Esq., of counsel for Augustus Macarty, one of the parties to this suit, and appellant from am interlocutory judgment, disregarding the call in warranty, made by the said Augustus'Macarty, against the beneficiary heir of .the late city marshal, and upon suggesting to this honorable court, that the decree of the 23d May, 1836, affirming the final judgment of the court below, has not disposed of this breach' of the appeal, it is ordered, that this case lie over for consideration, on the single point relating to the call in warranty, made by the said Augustus Macarty, against the beneficiary heirs of the late city marshal.” Bullard, J., delivered the following opinion of the court, upon the foregoing order: ’ In this case it has been suggested that the court, in delivering its opinion, omitted to notice and to act upon an interlocutory judgment of the District Court, overruling a [559] call in warranty of the city marshal, by whose agency the property in controversy had been sold. The counsel for Macarty now contends, that the District Court erred in refusing to permit the call of 'the marshal in warranty, and. that the case ought to be remanded for further proceedings against the marshal. We have re-considered the case in , , , this respect, and are of opinion, that the ‘marshal is not such a warrantor of title as to authorise his being cited as such, and condemned to pay as vendor on a failure of title. The case of Fleming et ux. vs. Lockhart, 10 Martin's Reports, 398, relied on by the appellant, was one for damages against.a sheriff, for selling a slave without sufficient legal authority, brought by the purchaser, who had been evicted by the owner of the runaway. The marshal certainly warrants the correctness and legality of his own acts, and if by his illegal acts he has caused damage, he is bound to make reparation, 0r sheriff ^re- ^ purchaser -who selling a ’slave ivHtout suffi-°ient authority, warrant the cor-redness and legality of their own aots> and if by their illegal acts they cause arT^boímá^to makereparation. • . - The -judgment first pronounced must, therefore, remain tit . r, _ undisturbed; reserving, however, to Macarty his right of action, if any he have, against the city marshal or his legal representatives. '