Breed v. Guay

Morphy, J. The defendant, sued as the maker of a promissory note for #600, payable t<? the order of the plaintiff, pleads in compensation and reconvention, that she is indebted to him in the sum of eight hundred dollars, and claims the difference, lie alleges that the plaintiff, being desirous to purchase a house and lot in Clinton, authorized and requested him to bid for her to the amount of eight hundred dollars at a sheriff’s sale, and, if the property was knocked off for that amount, to take the title in his own name, and afterwards to convey the same to her; that he accordingly did attend the sheriff’s sale, bought the house and lot for eight hundred dollars, which he paid, and took the adjudication in his own name ; that soon afterwards he offered to convey the property to the plaintiff, but that she, having changed her mind, refused to receive the conveyance, and reimbui’se the eight hundred dollars thus advanced for her, There was a judgment below in favor of the plaintiff, aiid the defendant appealed. Several witnesses having been offered on the trial to prove the facts alleged in support of the demand in reeonvention, the judge below refused to receive their testimony, being of opinion that it was an attempt to prove by parol an agency to purchase real estate. It is urged that there is error iq this opinion of the judge; that, although it be true that parol proof of an agency to buy real property cannot be received to make or destroy title to that species of property, yep that it should be received to establish collateral facts in relation to it, such as the payment of a sum of money, made at the special instance and request qf the party, in consequence of an authority to purchase. The judge, in our opinion, did not err, The fact sought 37 to be established was not a collateral one, but the agency itself, without the proof of which the defendant can have no claim against the plaintiff,*in consequence of his bid at the sheriff’s sale. The attempt is to force a title upon the plaintiff in order to recover eight hundred dollars, or to compel her to submit to the loss of that sum unless she receives the title tendered to her. The testimony goes to establish an agency to purchase real estate, and is inadmissible under the repeated adjudications of this court. 2 La. 596. 4 La. 168. Judgment affirmed,