Surgi v. Shooter

Labauve, J. On the 21st January, 1835, John Arrowsmith sold to Charles Cuvellier a certain islet of ground, situated in the suburb Jackson, designated by No. 24 on a plan of T. N. Depeuilly, and comprised between Solomon, Conti (by correction now Bienville), Napoleon streets, and the boundary line of R. Copeland, or assigns’s property, and containing eight lots. The dimensions are given to each lot. It is further stated in the act of sale, and should there he any surplus in said admeasurement, the scmne is hereby transferred by the seder to the said purchaser. The evidence shows that the plaintiff is now the legal and true owner of said property under a regular chain of titles. It appears from the evidence that when Arrowsmith sold to Cuvellier, the line separating Arrowsmith’s land from that of Copeland, by error of the surveyor Depeuilly, was actually run on said Arrowsmith’s land, having a piece apparently belonging to said Copeland. This error having been discovered, Arrow-smith had the land re-surveyed, and he found, as he thought, a parcel of land between that he had so sold and the line of Copeland, and he sold the same to the defendants in the year 1854. The defendants are in possession and claim under said Arrowsmith by public act of sale passed in January, 1854. The question now is, did or not said Arrowsmith sell the land in dispute to Charles Cuvilier by act of sale of the 21st January, 1835 ? We are clearly of the opinion that he did, and that when he pretended to sell to the defendants, he had no land there. He had sold to Cuvillier, without reserve, all the land he had between Napoleon, Bienville and Solomon streets, and the boundary line of R. Copeland’s or assigns’ property. This was clearly a sale per aversio-nem. C. C. Arts. 850 and 2471. For these reasons, and those given more in detail by the learned Judge of ttye District Court, we are of the opinion that plaintiff must recover. It is therefore adjudged and decreed that the judgment of the District pourt be affirmed, with costs.