
    WM. BREWER AND AL VS N.O.LAND CO. APPELLANT
    No. 8166
    
      
    
    October 16th 1923
    
      
    
    
      
    
   Wa .Brewer «a«i Al fg now Orleans Land Co* Appellant.

Ko.8188

Charles P.Oloibome Jud^o

the plaintiffs sue for the return of tha purchase price they the defendant on the ground that tha defendant had no valid title to tha land it sold to plaintiff.Upon the original hearing of this cc.oetwe oonoludad that the Supremo Court hod decided that the defendant had no title to the land it sold,that we w*r* hound by that decision,and that therefore the plointiffa wore entitled to a return of the purchase money paid by thsra.Frora our decision both parties applied for a rehearing Whloh we fWonted.When this ease was sailed for argonaut on tohearing counsel for tha defendant exhibited to the Court an aot passed subsequent to our decision by wholh it appears that the defendant had acquired the outstanding title recognised by the supreme Court as valid,and said counsel thereupon ached that this ease be remanded to the District Court in order that ho might malee proof of that fact and thus have the former Judgments of the District Court and of this Court reversed.

Plaintiff opposed this motion on the ground that it was too late to offer any evidence in the ease,and that the ease ohould be tried and decided upon the record oo it etood.Shls br'nge up two questions for our consideration.

First i Would the aot exhibited by defendant entitle it tow a Judgment,and la it not itself too late to change the righto of plaintiffs } and Second t can this Court consider the aot and remand thlo ease to permit the introduction of the aot in evidence in the District Courts.

The law ia well settled that a purchaser of property cannot refuse toaoeept title on account of an outstanding title or wortsc'-.ce In u third person when that third parson is ready and willing to satisfy the nortga.se or ratify, the sals 7 La.800» (5 R So0-7 A 477-31 A 106 — SO A J89-21 A SOS Quooesslon of Labosterle 13 Ct.App.31P— 4 hallos tb Hypotheques P.141 -f> IV Mo Ho.0-3 Bolleux 032-16 Buronton a 179 Hltf'baurant C 118-120.

or nay demand a return of lt.-ohon there Is a cloud upon his billot hut the non-ant that cloud is racove La oause of action falls.

An outstanding title oubsequenMicquired hy tho vendor Ingres to the benefit of hio purohaasr-QuualJ.ab vs ! Jinglo Ro.75Srt ht.Ann. and nanercue authorities quotod-18 ;i 189-8258-063 0 La ©fl-lil La 170 10 La 06-3R 233-SSÍ 633-18 A 178 10 A 888-30 A 870-113 La IOC1-11 Row 297-382-320-18 How 88-86-130 0,3.122-280 U.S.842-Par tldas t, 61 BK t 111 law 60-1 Greono EV.S 22-24 C.0.24SC (2427 ) C.iT.lSOO-O.O.

The only question that can arise Is,at what time should tho v-wider acquire the tltleyle it neoesoary that ha should aoq’.lre it before the action of resoAoeion la filed^or is-it sufficient that ho .ihould acquire it at any tine before final judgment is rendered rescinding the sale t

v.e believe that under the following authorities vie are authorized to adopt the second proposition,and that the cause of action of the purchfsW falls,if at any tlne,boforo final Judgment,the vendor’s titlo.snd consequently Msjbaoonas valid.

0,8,804? (S'*4C }* In all eassn the dissolution of the contract ray be deeiandad by suit or by eaceetionjand when tho roaolutif^r condition is an event not depending on tho will of either pupty.iho controot is dissolved of right ¡but in other oases, it ::,.y “'.o cued for, and the party in default may,according to olreunetanooc,havo a further tine allowed for performance of tho eondlti'-no *

In Bouln vo Kyoealino 12 j;,£88 tho Court soldi

But if,before the contract ns annul lad by oóropetent authority,the asilar should acquire tne thing which ho had delivered,

it is the dplnion of ths author that the purchaser would then not have power to cause the sals to be annulledjbeoause every obligation on the part of the vendor would be fulfilled) the purchaser acquires tho property In the thing sold ao well as the ^ontraot^ptands^ fully executed;0

oaso of '.ifatsdn 13(/La 378 was • a suit to rescind a sale oí' real estate for non-payment of tho purohasa price. X^X X Defendant failing to answer,plaintiff caused a default to bo entered; and then the defendant nade to plaintiff a tender of payment In full, including costs of Oourt.Plaintiff refused to aooept,assigning as hlo reason that an offer of performance comeo too late after a putting in dofault*.

The Court said on ¡-'.408 i

• That where the resoluticjpcondition has been expressly stipulated and tatas place of right,the purohaoor has until official demand in which to payjbut vhejje 1$, is only implied and tatas Rjaoe only to payP-PlaiHWff *0 /\ suit was accordingly dismissed.See also 119 La 80-31 A 184 (189) 34 A 989 <99l)-2 11.8.808.

Via see much analogy between the Watson oaso and this one.If the vendee has until final judgment in which to pay in, order to ovoid resol oslen of ths sale for aon-paynent of the prioe,it would eeem that tho vendor would enjoy anual time to pay or to perform his obligation to secure to the vendee a valid titlo/iuch is ths opinion of rasny.French commentators on artlole O.P.1S90

In 8 Bollaux on Art»G.H,1699 P.632 we roadi* What should nevertheless bo decided If ths ratification had taken plaoe only after the suit in nullitytOn one hand it may bo said that tho sale la void ahstnitioj that it ought not be in the power of the vendor,as it may be agreeable to him or not,to set aside or to allow the nullity to subsist by making arrangements with tho real owner,that there arose a vested right In the» purobaser from the nemant iua fensuXated HI* aamand-Artialo# H84-1B5B and 1081 ««<** to us t© present paranptory «rgwants against that system}in faot there rstviX.:' from timo aítiole*,tbat if tha rsaolaalon of a sale la demanded tec? failure to pay tha prioe,and that before tha Judgment,the defowlr.itó fulfil la hla obligations,the Judge la net hound to admit Me fisaasiSo «fay then afaould ha prora himself aera aerara towards the render,!? 1 he faaa brought about tha oaaaatlon of the eausa of aotlontWhy &mr¿W a oontraot ha annulled the rloa of wMoh has haan purgad by poeto?,its* elretsoataaoes which aaeura lta sfflosojrfifo must before all adhero to tha spirit of tha law,*

7 Dements P,«l B 88 81a XVII.

In oritioialng a deoieion of tha Court of lyona wfaloh had hold th&ft tha ratlfloatlon rust ha of data anterior to tha suit Delrinoeurt in Vol 3 P.13S aayst*It aaama therefore from this that tha dooirfKC established by the desleían under consideration la contrary to the spirit of tha code*» and to good faith,which Should he the soul o? all contrasts} and I think that In all eases whsi-o the danger of ^eviction Ms oaasad,either haosusa tha render ho* bsoeme the hais? of the owner,or haoauaa ha has adjusted Ms rights with him or beeause tha purchaser faaa proscribed,the> nullity of tha sale can no longer ha pronounsod,on aooount of tha want of interest of the purohaeer*

"She nullity of the sale would ha equally oorerad,lf the Bubesquant to tha sale,should beooma the owner of the thing sold, either by buying It from the real owrsor,or by ouooeaeion (donation or logaoy.* 4 Dallos Codea. Dolt os Hep Lag.lC7 Ho.S21-idem BUpp Vol.la P.888 S £44^3 Baudry ?.S% «6 BcileSX F.6S8 18 Duronton P ,106-10 Id.P.480-8 Karcade P.B17-1 Trop Vente P.34S_y / z. S$¿/¿ 6 Tcull S '158^'the certainty that he la «eposed hereaf^OT to no trouble either boa cause the party stipulating has become the owner or because the real owner of the thing has scoeded to the oontraot by ratifying It,or by renouncing to avail himself of Ms rights* . All fear of eviction ceasing,the rescission of ths oontraot oeaeos to be a useful remody.zt is hereafter without intereat.V'o oven think that the third party is always in time to ratify,and tho party promising to become incontrovertible owner before the nullity of the oontraot ie de finitively pronounoed were it even after tho first suits.Because roeoleoion and it ie in truth one,lo pronounoed only la the abeenoe of executlon;henoe at the moment when it would be pronounoed,the execution of the oontraot would bo assured,supposing that all things in other raspeóte ware wholo.lt would be from that moment without objeot,except the question of coats spent in the suit.

Some authors nevertheless,require,but with more rigor than justlos,that the ratification of the third party and the ownership of the promisor should be (Ulterior to ■ tho demand-®

84 Laurent S ISO P.124»

■ The real difficulty 1* this!tho purohaeer files hie suit and during the pendency the owner rutlfle«|we suppose that there ie no other oause of eviotloniwill the action of nullity be suspended by the confirmation of the ownerT
There la a controversy;in our opinion the notion falls as soons ae the owner ratifies;in truth,from tiy< moment,all danger® of eviction osases and that ie the reason for deoiding.The objections that are made are not serious,®

1 Duvergler P.268 f

* M.Delvinoourt has demonstrated that the action la nullity cannot be entertained,even when it la posterior to the time when it was filed that the property was aoqulred by the vendor-"

We ore therefore of the opinion that if the defendant has aoqulred a valid title to the land it sold to plaintiffs at any time prior to this day that the title so aoqulred Inured to the benefit of the plaintiffs atad that their oaune of notion has oeased to exist.

She relative position of the plaintiffs baa not changed,and there is nothing this day which would wake it more onerous for them $• accept the title now than At the time of their original purchase^, nor tea the delay in perfecting: the title caused than any damage* XX the Law end the Juriapcu&enoe make it the duty of the Court to remand a paso when the ends of Justice require It*

o.p.soe *But if the Court shall third: it not possible to pronounce definitively on the osuna,in the state in whioh it is,either because the parties have failed to produce the nscoseary testimony» or because the parties have failed to adduce the necessary testimony or because the inferior Court refuse to raoeive it or otherwise,It may,according to qlrounetoncos remand the cause to the lever Court vlth instroutiona os to the testimony which it shall raoeive,to the // end that it may deoide aeoor&lng to lav.

In the ease of Melanoon’s Heirs vs Duhamel.

7 l.a.200 the Court Bald I*

"The execution of a oentraot according to its tensa,and the In* tantion of the parties,is doto consonant to Justice,lav and equity than the rescission of it,and a condemnation in* damages,provided the contraot or matter 1b still entire and there has bam no ohang® in the situation of the parties,®

It has been held that a oa.se will be remanded when a party to the suit through oversight or otherwise^ has omitted to introduce and file necessary avldenoe In his possession.! 1m Dig,S437-71S»?20 specially 130 ha 736-136 l.a a29.

■v.hen the record/ of a suit disoloses enough to satisfy the Court that the whole story of the oaso la not told^that essential foots have not been given in ervidenoo,and important documents have been omitted,and that substantial justice cannot be done between the parties in the state of the record as filed hero,the court will in its dlsoretion,ln the interest of Justice,remand the «^use»®. ,. Idem P,639 e 729.

This prinoij¿$ applies with mors foros whan the object in to offer material evidence which has developed einoo the Judgment of the District Court,

In the oase of Schneider va Etna Life Ins co.30 A 1196 the plaintiff obtained a Judgnent for $3000,00 representing the amount of a policy on the life of her husband who^she alleged^had died.

lile defendant appealed.In the Supreme Court,after the filing of tho transcript,it produced affidavits and other evidenoe establishing the existence of the husband.The Court admitted the evidence and re* landed the case for hearing the question of existence or death of the husband.

In the case of St.Charles St.ilUD vs Hoard of assessors 61 A 469 the Supreme Court admitted evidenoe of payment of tho money demand by the plaintiff.

The application of the defendant in this case to prove that it has acquired a title to the land sold by it to the plaintiffs is equivalent to a plea of payment.Payment does not nean^n Civil law, only a satisfaction of a money olaim.lt has a more extended meaning C.0,3131(8127 )- 0 By payment is meant,not only the delivery of a sum of money,when suoh is the obligation of the contract,but the performance of that which the parties respectively undertook,whether it he to give or to do.* 2 A 24 Pothler on 0blig.P.2.'9 fi 494 . " iayment is the performance of an obligation to give or to do."

Vie are therefore of opinion that the defendant is entitled to have tho oase remanded for the purpose of admitting the proof of its lately acquired title and examining the effeot thereof upon the claims of plaintiffs herein.

It is therefore ordered adjudged,and decreed that our former Judgment herein be set aside,that the Judgment of the District Court bo reversed and avoided,and that thlB case be remanded to said Court solely to receive proof of the acquisition of title by the defendant to the lands in controversy and to render Judgment upon the testimony and evidenoe In the present record and upon suoh further testimony and evidenoe to be produced by the defendant on the new trial herein ordered,the Costs of the District Court and of the Court of Appeal, up to this date to be paid by the defendant and appellant.

October 16th 1922  