
    City of New Orleans, for use of Nicholson & Co., v. Louis L. Ferriere, et als.
    The city’s acceptance of the work, for which it was authorized to contract, is prima fade evidence of its completion and mode of execution against the front proprietor, who becomes thereby bound.
    In contracts to be performed at a future period, the obligation which grows out of the contract arises at the very moment of making it, but the right of action growing out of it arises only when the stipulated term has arrived.
    Execution of a judgment against a warrantor will be suspended until the warrantee shall have paid the amount thereof to the plaintiff.
    _OL PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    
      George S. Lacey and G. P. McPheelers for plaintiff. Miohel & Koontz for defendants and appellants.
   Ilsuey, J.

The plaintiffs claim from the defendants, in the Fifth District Court of New Orleans, eleven hundred and eighty-two dollars and fifty-six cents, with interest, being the amount of a bill for paving done by Nicholson & Co., under a contract with the said city.

Gernon and Westmore, two of the defendants, and the vendees of L. L. Ferriére, pleaded the general issue, and by supplemental answer called in warranty, Louis L. Ferriére, their co-defendant, in this suit.

Ferriére excepted to the plaintiffs’ petition, because it does not state any ownership to he in him of any definite piece of property, at the time the hill sired on was duo; and, this exception being overruled, he filed his answer, pleaded the general issue, and denied specially that he was the owner of the property in front of which the pavement was made, and also denied that the forms and requirements of law had been complied with to order and execute the contract of sale by the city authorities, and that he is not hound thereby.

There was judgment in the lower court against the present owners of the property, Gernon & Westmore, for the whole amount claimed, with legal interest, and judgment in their favor over against their vendor and war-ranto/, L. L. Ferriéré, for the sum of nine hundred and forty-four dollars and sixteen cpnts, -with interest from 8th March, 1860.

Ferriére only has appealed to this court from the judgment rendered against him.

At the time of the transfer of the property, in front of which the paving was done, a large portion of the work was completed; and the question here presented is, who is bound to pay that portion — L. L. Ferriére, the vendor, or Gernon & Westmore, his vendees ?

The exception to the petition filed by Ferriére is properly overruled; and, in the absence of fraud, which is not alledged, the city’s acceptance of the work, for which it was authorized to contract, is prima facie evidence of its completion and mode of execution against the front proprietor, who becomes thereby bound. Municipality No. 2 v. Guillotte, 14 An. 297.

It was incumbent on Ferriére, in the language of Domat Book 1, title 2, sections 2, 3, to put a stop to the pretensions of every one that claims either a right of property in the thing sold, or any other right which might disturb the buyer in. the possession and enjoyment of the thing he has bought. “For it is,” he says, “the right to possess and enjoy, that he has bought.” And this suggests the question whether, at the time of the sale from Ferriére to Gernon & Westmore, the property was legally affected with or subject thereafter to be affected with any privilege for paving in front of it, which was then in progress of execution; if so, the duty devolved on Ferriére to protect his vendees against the claim of the city, at least for that portion of the wort which had been actually performed whilst he was the owner of it.

The work was not fully completed, and the account therefor was not definitely stated and recorded until a few days after Gernon & Westmore acquired the property, but we think the registry so legally made bound the property, in whose hands soever it may have been.

Of the whole amount due to the city, upwards of four-fifths of it was due and owing personally by Ferriere as owner of the property.

The work inured to his benefit. Gujus oomniodum ejtts debet esse in-commodum.

No action, it is true, then, lay against Ferriére for the recovery of the value of the work then partially executed; but he was, not the less for that, personally bound for it, as owner, with a lien against the property whenever the registry of the account for the whole work could be duly made. See 119 section oí Art. 20, March, 1856, page 164. The obligation existed; the remedy only remained in abeyance. Art. 14 O. P. Duranton, Cours de Droit Frangais, Vente, g 258, says: “Blais quoique le droit du tiers qui a amené réviction ne füt point encore complet ou parfait au moment de la vente, la garantie n’en a pas moins lieu de droit s’il y a eu eviction ; il sufíit que le principe, ou la causo premiere de ce droit, existait lors de la vente.”

“Ilsuflit que le droit füt antérieur á la vento dans son principe, ou sa cause.”

On every principal of law and equity, Ferriere is as responsible this prior debt of his, for which the property became affected, as he would have been for any other unsatisfied liability incurred by him for and operating a charge against the property. Of this opinion was ^the court a quo, which gave judgment against Ferriére and in favor of Gernon k Westmore, for so much of the claim of the city which it condemned them to pay, as was due by their vendor and warrantor, Ferriére.

This judgment must be affirmed, modified, however, in one respect, to suspend execution against Ferriere until so much of the judgment against Gernon & Westmore, as he is bound for, is paid by them. See Melancon’s Heirs v. Duhanel et als, 7 La. 290; Fletcher’s Heirs v. Cavallier et al, 10 La. 120.

It is therefore ordered, adjudged and decreed,, that the judgment of the lower court be so amended that no execution shall issue against Ferriere therein, until Gernon & Westmore exhibit in the Fifth District Court of New Orleans satisfaction of so much of the judgment against them as is due by Ferriére; and that, so amended, the judgment of the lower court be affirmed, the costs of appeal to be paid by the appellant.  