Barkley v. Succession of Steers

The opinion of the court was delivered by Nicholls, O. J. It seems to be conceded that when Adam Thomson sold to the Orescent Oity Sugar Refinery Company, on the 30th [955] day of January, 1883, the property described in the act of sale of that day, before Andrew Hero, notary public, that the ownership of the few feet of land, which are in contestation in this suit was not in the vendor, Adam Thomson, but in the widow and heirs of Prague. It is contended, however, that Thomson intended to sell and the company intended to buy this small strip, and that Thomson subsequently, on the 27th day of October, 1883, bought from George A. Hero (its then owner") lot No. Ill, of which it formed a part, in order by so doing, to comply with his legal obligations as vendor, and to complete and perfect the title of the refining company. That this result followed ipso facto by effect of law without the necessity of a direct act of transfer to the company, under a line of decisions-holding that, though the sale of another’s property be null, yet the vendor’s subsequent acquisition vests the title at once in the vendee. Evans vs. Gray, 12 Martin, 649; Woods vs. Kimball, 5 N. S. 246; Fenn vs. Rils, 9 La. 100; Louisa A. Lee vs. Ferguson, 5 An. 532; Succession of Dupuy, 33 An. 277. That there was no necessity that there should be evidence on the books of registry of this change of ownership so operated from Thomson to the company, because the plaintiff who acquired lot- No. Ill at a sale made in th s succession of Adam Thomson was aware at the time of and prior to his purchase of the rights of the company. We do not think it necessary to determine whether plaintiff was possessed of such information on the subject as defendant asserts he had, for the reason that lot No. Ill, as we understand the record, went into the ownership of Adam Thomson, struck by the vendor’s privilege, which resulted from his purchase of the same in favor of his vendor, and by the special mortgage which he granted to secure the credit portion of the price. Assuming that Thomson’s purchase enured to the benefit of the refinery company, it could only do so in subordination to the real rights of third persons existing on the property at the moment of its acquisition. The plaintiff, at the time of the succession sale, held Adam Thomson’s note, secured by the vendor’s privilege and special mortgage above mentioned. The refinery company could not successfully oppose the enforcement of the mortgage and privilege by a sale of the succession property, and when the sale took place it extinguished any rights which Thomson had in the property, and any which the [956] refinery company might have predicated upon Thomson’s rights, which were subject to be defeated and were defeated through the mortgage and privilege. Defendants did not buy from Adam Thomson or the succession of Adam Thomson, but from Harry T. Howard, who has not been made ■a party to the suit. They claim that there is no necessity for his being made a party, for the reason that in their purchase from him he transferred to them, with full subrogation to his rights, all actions ■or rights of action which he himself had or might have against prior vendors of the property. Howard himself did not buy from Adam Thomson, or the succession of Adam Thomson, but at a judicial sale, made in enforcement of a mortgage claim which he held against the Crescent City Sugar Refinery Company. How his claim originated is not shown. An examination of the marshal’s deed to Howard shows that no portion of Lot No. 111 was covered by his mortgage or his purchase — what he seized and what he purchased was the property adjoining Lot No. Ill, which was seized and sold as having a frontage of twenty-three feet two inches and seven lines (28 feet 2 inches and 7 lines) on Peters street, and as belonging to the Crescent City Sugar Refinery Company. We do not understand that the title to that property as so described has ever been questioned as not having really belonged to the Orescent City Sugar Refinery Company under its purchase from Adam Thomson, or as not having belonged to Thomson under his purchase from Mrs. Rosina Prague. Howard, at the sale, acquired title to the precise object on which he held a mortgage, and as between him and the company there has existed no claim in warranty. It is true that after Thomson had acquired this particular piece of property from Mrs. Prague, which is known throughout these proceedings as Lot “A,” of Pilié’s plan of October 25, 1881, he, in error as to the exact boundary between it and lot No. Ill, encroached upon the latter lot by building a wall upon it a little over eight feet beyond his line, and that after he had sold this Lot “ A,” together with other property, to the Crescent City Sugar Refinery Company, the company claims that that particular strip was intended to be purchased by them and intended to be sold to them by Thomson, not as falling under the description of the land sold in the act, but because in an act sous seing privé, which had formed the basis of the sale, and which was attached to the act of sale, Thomson had described the property as “the [957] property known as the Orescent Oity Sugar Refinery, together with and including all the buildings and improvements thereon, the machinery, fixtures, engines, boilers, pipes, kettles, vats, bone-black and appurtenances therein contained or thereunto belonging, and now or herebefore in use or placed thereon for use, such as the whole now stands,” but no such contention, so far as we see by the record, existed as between Howard and the Refinery Company. As between them there seems to have been no perpetuation of the error which might have existed between Thomson and the company, no mistake nor misunderstanding as to exactly what was mortgaged or bought by him at the marshal’s sale, and there has been no breach of warranty by the company to him. When Howard purchased Lot “A” at the marshal’s sale he acquired a right of recourse in the event he should be evicted from that particular property, but he acquired no right in warranty against Thomson, on account of other property, by reason of the relations between him and the Orescent Oity Sugar Refinery Company. After Howard had acquired Lot “A” at the marshal’s sale, calling for a front on Peters street of twenty-three feet two inches and seven lines, he undertook to sell the same lot, among other property, as having a front on that street of “ thirty-one feet five inches and seven lines, more or less,” adding on, as will be seen, to the property actually bought by him the property in dispute in this case. In his act of sale to Steers it is patent from the warranty clauses that he was aware he was going beyond the title acquired by himself at the marshal’s sale. The act declares that for the consideration, and on the ter .ns and conditions set forth therein, he sold, conveyed, transferred, assigned and set over the property described to the defendants, with a full guarantee against all troubles, debts, mortgages, liens, evictions, alienations or other encumbrances of every kind and nature whatsoever, binding himself and his heirs to defend the property and appurtenances conveyed against all legal claims and demands, which warranty, however, in so far as it concerns eight feet three inches nearest St. Joseph street, of the front of Lob “ A,” is limited to the defence of any suits in leference thereto, and the payment of all attorney’s fees and costs that the purchasers may incur, and in case of loss or eviction therefrom, the vendor shall only be liable to pay one thousand dollars, which was fixed as the price or value of said eight feet and three inches, exclusive of said attorney’s fees and costs. [958] We see no claim in warranty against the succession of Thomson as arising from the purchase of this small strip of land from Howard by the defendants. The deed to Howard did not pretend to convey to him title to it. There is no privity between Howard and the succession of Thomson in regard to it, and he has set up no such claim. Defendants contend that in the act of sale to them, Howard transferred to them all the rights and actions of warranty to which he was or might be entitled against all former proprietors of the property and appurtenances therein conveyed, subrogating them co the said rights and actions to be by them enjoyed, and exercised in the same manner as they might or could have been by himself. Granting that under such a clause the last purchaser could at once and directly attack the most remote vendor liable under the warranty, we think the links were broken between Howard and the succession of Thomson. He had no claim against the Orescent Oity Sugar Refinery Company in respect to the property in contest here, and could transfer none against it nor against the succession of Thomson to the defendants. We see nothing in the record by reason of which Howard, or any one holding under him, could examine into and avail himself of the relations existing between Thomson and the Orescent Oity Sugar Refinery Company. The act of mortgage of the company to Howard is not in the transcript. We have no reason to suppose that it contains a transfer to Howard by the company of any distinct independent claim or right of action which the company has or pretended to have against Adam Thomson in respect to this strip of land, with reference to which there is no evidence that the parties were then contracting. Howard’s own contract is the measure of his rights. If he got everything which that contract called for, he could ask no more. In reaching our conclusions in this case we have been called upon to deal with a-very unsatisfactory record, and from the course pursued by the parties, to assume some matters which should have been fixed by positive evidence. As matters stand and appear to us we think the judgment appealed from is correct, and it is hereby affirmed. t\ ,” '