Peirce v. M'Mahan

Bullard, J., delivered the opinion of the court. _ The plaintiff sues to rescind a contract of sale of certain city lots, made to him by the late Dr. M‘Mahan, on the ground that the same were incumbered by a tacit mortgage in favor of a minor, of whom the vendor was co-tutor, he having married the mother of said minor. The existence of the legal mortgage at the time of the sale, and at the institution of the suit, is not contested ; but the defendant denies that it affords any legal ground for annulling the sale ; and, by a subsequent answer it is averred, that since the suit was brought, the mortgage has been cancelled and erased. It is shown that the defendant, who is the surviving tutrix of her minor child by her first marriage, and duly appointed to administer on the estate of Dr. M'Mahan, her last husband, had proceeded to liquidate the claim of said minor against her and the estate of her late co-tutor, and had given a special mortgage in lieu of the general one, to secure his rights, and had procured a decree of the Court of Probates, cancelling said legal mortgage in pursuance of the act of 1830, entitled “ an act in addition to the laws now in force relative to the tutors and curators of minors.” The Parish Court gave judgment in favor of the defendant, and the plaintiff appealed. In his argument addressed to this court, he relies on two points : 1st. That the contract was null on account of error; and 2d. That the proceedings in the Court of Probates are irregular, and do not validly release the property from the incumbrance of which he complains. I.' It is contended that the plaintiff purchased with a view to sell again ; with a full warranty and a clear certificate’; that the vendor must have known that the purchase was not made with a view to a permanent investment; and that if he had known of the existence of the incumbrance, he would not have purchased; and that there was such a suppression of material circumstances, as to vitiate the contract. [221] This argument resolves itself into the proposition, that either there was that kind of error in the principal cause or motive, that consideration without which the contract would not have been made, and which, consequently, invalidates it; or, that there was in fact fraud in not communicating to the purchaser the existence of the legal mortgage. The plaintiff alleges that he purchased with a, view to speculation; that such was the motive which influenced his will, and determined him to enter into the contract; and he finds that he cannot honestly carry out his intention, having discovered , . J J ’ ° the existence of a tacit mortgage on the property. 1 he Code lays down very precise doctrines on this subject. “No error,” says article 1820, “in the motive can invalidate a , , . .... , contract, unless the other party was apprised that it was the principal cause of the agreement, or unless,’ from the nature of the transaction, it must be presumed that he knew it.” / % r The motive, in this case, is not apparent; nor does it appear that the vendor was aware that the purchase was made merely for speculation, and with a view to immediate resale. Nor are we prepared to say that the existence of a tacit mortgage, bearing upon the property sold, in common with all the real estate of the vendor, and not disclosed at the time of the contract, affords sufficient grounds for rescission, without proof of a fraudulent concealment or suppression of the truth. The vendee could not be compelled to pay the price without security to make good the warranty, and thereby may protect himself from ultimate loss. Not only was all the property of the vendor,subjected to the same mortgage, but also the property of his co-tutor, who was, at the same time, personally responsible to her ward. The risk of eviction was thereby greatly diminished; and the ability of the vendor, and the willingness of his legal representatives to remove the obstacle, are abundantly shown. The vendor cannot be aware that the property he sells is purchased for speculation, and with the view to immediate re-sale ; and the vendee will not be allowed to set up as error in the motive, the fact that a tacit mortgage existed on the property, which was fraudulently concealed from him, in avoidance or rescission of the sale. II. In deciding upon the second point made by the appellant, we cannot better express our views than by supposing that the minor, having attained the age of majority, was now seeking to enforce his legal mortgage upon the properly in question, and that he was to urge the same objections to the [222] validity of the proceedings, which are now relied upon by the appellant, he might be answered, that by a judgment of a competent tribunal, in a proceeding in which he was du’y represented by his under tutors, the general tacit had been waived, and a special one substituted in *ts place* Whether we regard that as a contract or a judicial proceeding, it is equally conclusive upon the minor, all the forms required by the act of 1830 having been observed, tmder the personal responsibility of the under tutors. That act expressly renders the under tutors liable, personally, to , .7 „ . 1 . the minor, in case of the insufficiency of the new security, Uldes3 he makes opposition, and his opposition is overruled, Act of 1830, sections 4 and 5. Such a case would, indeed, ^ _ , r„ . r _ diner from that of Casanova's Heirs vs. Avego, 9 La. Reports, 192, in which the property in dispute was acquired under the faith of the proceedings in the Court of Probates; while, in this, the proceedings took place principally with a view to exonerate from the general tacit mortgage, the property already acquired from a tutor: but, in principle, they are the same. The present appellant could not invoke in vain the judgment of the Court of Probates, to which the minor was regularly a party, and which would stand in the way of his original mortgage upon the lots in question. Where the tutor observes all the forms required by the act of 1830, authorizing a special mortgage to be substituted in lieu of the general one resulting from the tutorship, it frees the other property from all incumbrance, and a purchaser cannot set it up in avoidance of the sale. The judgment of the Parish Court is, therefore, affirmed, with costs.