Municipality No. One v. Leroy

Morphy, J., delivered the opinion of the court. The defendant, being sued on a note given for the purchase of some property in the rear of the city, resists payment on the ground that the lots sold to him by the plaintiffs are situate within the first section of the Draining Company; that the said lots were sold to him free from any mortgage or incumbrance, while the plaintiffs well knew that the company had a legal mortgage on the same; that he fears he may be evicted from the premises in consequence thereof. He prays that the sale of said lots be cancelled, or that the plaintiffs be decreed to give him good and sufficient security that he shall not be evicted or disturbed in the quiet enjoyment and possession of the same. We can hardly believe this defence a serious one, although presented with somedegree of apparent correctness. What is the disturbance which the defendant avers that he has just cause to fear? It is one which can take place only through his own fault, or neglect, and for which no warranty is due to him by his vendor. If his land is drained, and, after receiving the benefit of this improvement, the defendant refuses to pay to the company the proportion of the enhanced value for which the law grants them a mortgage, he might truly be troubled and disquieted, but then it would not be on account of a preexisting claim due by the plaintiffs, for they never promised or engaged to pay for the draining of the property sold to the defendant. The law creating the Draining Company, and granting them a mortgage on all property they should drain and improve, had been in force more than two years when this sale was made; it is even very probable that the fact of the operations of the company being about to be carried into that section, and the prospect of the consequent enhancement of the value of property in that neighbourhood, induced the defendant to make the purchase now sought to be annulled on that account; but be this as it may, and considering the mortgage as really threatening the defendant with a disturbance, it can in no way authorize a rescission of the sale, nor can it entitle the defendant to suspend the payment of the price, or require security, because before the [149] sale he was as well informed of this supposed danger of eviction as the plaintiffs could be, by the promulgation of the law of 1835; Louisiana Code, article 2535. It is, therefore, ordered, adjudged and decreed, that the judgment of the Commercial Court be affirmed, with costs. Bullard, judge, did not join in this case, having been of counsel.