Syer v. Bundy

Vooiuiies, J. The plaintiff and appellant claims the ownership of a square of ground situated in Bloomingdale, parish of Jefferson, and described in Buis-son’s plan as No. 19, He alleges in his petition, that he purchased this property from William Burns, of Baltimore, Md., by notarial .act, which was duly registered in the recorder’s office of the parish of Jefferson, on the 28th of April, 1863 ; and th,at said Barns' vendor owned and possessed said property since the year 1837. He furjther alleges that the defendant, pretending to have title to said property, has illegally taken possession thereof and refused to surrender the same. He therefore prays, that he may be adjudged to bo the lawful owner of said square of ground, and that the defendant may be .condemned to restore him the possession of the same, and further decreed to pay him the value of the rents of said property from the 1st of May, 1863, at the rate of $300 per annum, The defendant, in his apswer, after pleading the general issue, avers that he holds the square of ground in controversy, by purchase from John Gnen, by notarial act, dated the 27th of April, 1853, and duly recorded ; and that his vendor is bound to warrant and defend his title to said property. He therefore prays that his said vendor, John Green, may be cited and called in warranty. John Green, in his answer to the call in warranty, denies all the allegations set forth in the plaintiffs’ petition ; and charges, that the title set up by the plaintiff is fraudulent and simulated, and concocted for the purpose of defrauding him, 1-Ie further avers, that on the 9th of January, 1837, being the projector of the town of Bloomingdale, he sold the square of ground in controversy, to Michael Buckley, for the price of $1200, in his notes of $300 each, payable at six months, and at one, two and three years ; that said notes, bear [541] ing a special mortgage and the vendor’s privilege, were duly registered in the mortgage office of the parish of Jefferson, and remained patent on the record up to the day of the sale by which the plaintiff acquired his title; and that the plaintiff and his vendor well knew that said notes were still due to him. He further avers, that on the 8d of January, 1845, ho purchased said property at a judicial sale made by the Sheriff of Jefferson, for the payment of the State and parish taxes, due thereon from the 37ear 1839 to the year 1844; and that about one or two years previous to his conveyance oí said property to the defendant, he had actual possession of the same. He therefore prays for judgment in his favor, with costs and all general relief. The conveyance from Buckley to Burns, is by an act under private signature, dated the 10th of June, 1838, and registered in the Recorder’s office of the parish of Jefferson, on the 25th of April, 1853. By the terms of this act, the vendee assumed the payment of the notes executed by the vendor in favor of John Green, and originally given as the price of said property. The conveyance to the plaintiff was executed by Walter Garswell, of New Orleans, as the agent of William Burns. On the trial below, the plaintiff excepted to the admission of the testimony of Mr. Arnault and Mr. Lewis, who were examined as witnesses for the war-rantor, on the grounds that “it was inadmissible under the pleadings, was irrelevant and was res inter alios, to which the plaintiff; Syer, was a stranger.” The testimony of Mr. Arnault, the Recorder of the parish of Jefferson, shows that John Green'8 mortgage against Buckley, was canceled and erased by him on the 25th of April, 1853, on the written application of Walter Garswell, on the ground that both the notes and mortgage were prescribed, the registry of which having been made more than ten years prior to the application; and that previous to the registry of the conveyance from Burns to the plaintiff, Garswell, was informed that the notes of Buckley held by Green were still due, and that Green had purchased the property at a Sheriff’s sale for taxes, The testimony of Mr. Lewis, the notary, shows that on the day on which the conveyance was completed and signed, but after the notes and cash were delivered to Garswell by the plaintiff, the latter was informed of John Green's claim. This testimony only proves that the plaintiff was notified of Green's mortgage claim after the consummation of the conveyance from Burns to him, and, consequently, too late to affect his .interest. But even admitting for a moment that such notice had been seasonably given, it is difficult for us to perceive in what manner it could have affected the position of the litigants. The Recorder was fully authorized under the Act of 1843, to erase from his books Green's mortgage after its peremption, and, in the absence of fraud, it is perfectly clear that the plaintiff was not bound to look beyond the certificate given by the Recorder to that effect. Hence there is no necessity to notice the bill of exceptions. It is urged by the warrantor, that the act sous seing privé from Buckley to Burns, was not recorded until the 25th of April; 1853, and that the act of sale to him from the Sheriff of the 3d of December, 1845, for taxes, was regularly registered. It is not shown that this sale was made by virtue of a legal assessment. It is well settled, that where title is set up under a Sheriff’s sale for taxes, it is essential to show an assessment according to law. 6 N, S, 348. 10 L. 283. 7 L. 50, Besides, the property is described in the Sheriff’s deed as “ square No. 19, situate in Bloomingdale,” Such a description has been held [542] insufficient. See Carmichael v. Akin's heirs, 13 L. R. 205, and Jacques v. Kopman, 6 Ann. 542. It is also urged by the warrantor, that BucMey having failed to perform his engagements according to the terms of the sale, a commutative contract always implying the resolutory condition, he was entitled to claim either the dissolution of the contract, or a specific performance; and that it may he demanded either by suit or exception. We are of opinion that this point is inadmissible under the pleadings : there is neither averment nor prayer in the warrantor’s answer claiming such relief. It is true, a prayer for general relief may be available in certain cases; for instance, it may be very aptly called in aid to explain vague and obscure allegations or averments ; but for no other purpose, otherwise, even though it were not in violation of the rules of pleading, we think it would be giving our sanction to a very unsafe precedent in practice. But even conceding, for a moment, that the relief sought may be implied from the pleadings, still it is obvious that the warrantor’s position is untenable, because BucMey and Burns are not parties to this suit. Between the original parties, Buahley and Green, it may be safely conceded, that the non-payment of the price may be considered as an exception attached to the action and inseparable from the demand, and to which the maxim of “ Qum temporalia sunt," may be very properly applied ; but in respect to the plaintiff, who must be considered as a third person, holding as a purchaser in good faith under the vendee of BucMey, we apprehend the rule to be totally different in its operations. It is also urged by the warrantor that neither Buckley, nor Burns, nor Syer, ever had possession under their titles. This is a petitory and not a possessory action; consequently, it is not necessary for the plaintiff to show any act of possession. Besides, it cannot be denied by Green, that his vendee was in possession, for the law considers the tradition or delivery of immovables as always accompanying the public act which transfers the property. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed ; that the plaintiff, William, Syer, be and he is hereby adjudged to be the lawful owner of the square of ground described in his petition; and that the defendant surrender the same over to him, and in case of his refusal to do so, that a writ of possession issue as the law directs; and that the plaintiff recover of the defendant the costs of both courts, to be taxed. And in relation to the claim of the defendant against his warrantor, as the evidence is considered insufficient to enable the court to do justice between the parties, it is ordered and decreed, that the case be remanded for further proceedings according to law.