Lesassier v. Dashiell

Bullard, J., delivered the opinion of the court. This is an action to recover of the defendant a part of the price of a tract of land and slaves. The defendant alleged a deficiency of the land, together with various other grounds of defence, and among others, fraud and concealment, and that the vendor knew that the tract of land contained much less than the quantity stated in the conveyance. In the progress of the trial, the defendant offered witnesses to prove that the vendor knew before, and at the time of the sale, that the tract of land known as the double concession, did not contain four hundred arpents, but a less quantity, to wit, ninety-three arpents and a fraction, but that before and at the time of the sale, he assured the defendant that it contained four hundred arpents or upwards. This evidence was reiected by the court, on the ground that the sale was J ^ . , 1>/¥, .. . per averstonem, and that it made no dilierence whether the vendor knew or not that there was a less quantity, because in sales of that kind, the purchaser can claim nothing for a 1 . diminution. A bill of exceptions was taken, to which our . j , • i , i attention has been drawn. It appears to us the court erred. Admitting that the sale rr ° •wasper aversionem, and that, consequently, the purchaser has no right to claim for any diminution in the measurement merely ; yet it does not appear to us logical to conclude that if he was led into error by the fraudulent concealment of the vendor, as to the real quantity contained within the specific boundaries, he is without remedy. Good faith is required in sales of this description, as much as in any other contract, and it was proper under the pleadings of this case to go into [156] that inquiry. The act of sale describes that part of the land commonly called the double concession, as “ supposed to contain about four hundred superficial arpents;” now if it be true that there were but ninety-seven acres, instead of four hundred arpents, in this double concession, to the knowledge of Lesassier, the latter in our opinion cannot shelter himself behind the principle that the sale was one, per aversionem, and that he was not liable to make up any deficiency. So, the purchaser was permitted to introduce evidence, to show that the vendor knew at the time of the sale, which was per aversionem, that the tract of land described in the act of sale, contained less than was meil„ tioned. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is further ordered, that the case be remanded for a new trial, with directions to the judge not to decline to receive the evidence offered to prove that the vendor knew at the time of the sale, and before that the double concession, described in the act of sale, contained less than four hundred arpents; and that the plaintiffs pay the costs of the appeal.