
    Micou’s Executors v. Stacy et als.
    The vendor of a contingent interest in lands who warrants title, as to lumself and those claiming under him, and who takes a counter letter conditioned that the ‘vendees will convey to him one-third of the land that may be confirmed to them after adjusting the claims of certain settlers on the land, hasnot such a title as will authorize him to be recognised as a co-proprietor in a suitfor partition, between parties claiming by title from his vendees.
    The holder of such a counter letter would have no right as against-his vendees, when their title to a portion of the land had been confirmed, only by compromise with parties claiming under an assignment from him prior to the date of the counter letter.
    The registry in the mortgage book of such a counter letter, even'if it be regarded as a title or conveyance, would be no notice to a purchaser.
    from the District Oourt of Concordia, Cooley, J.
    
      Hamner & Hays, for Bringier, appellant.
    
      Hynes, Stacy & Sparrow, in pro. per.
    
   Spoeford, J.

(Buchanan, J. and Ogden, J. absent).

The District Judge did not err in rejecting the pretensions of Louis Bringier to a share in the partition.

To have allowed him a definite share in the lands on their proceeds, under the pleadings as between him and Stacy and Sparrow, would have been to re-cognise in him a sufficient legal title to sustain a petitory action against them as adverse possessors.

He has produced no such title.

His pretended title he styles a counter letter from Gurry and Garland, to whom he sold all the claim he might have to the Bringier tract in 1841.

It turned out that he had no claim at all, for he had surrendered all the interest he had to his creditors in 1827, and in 1828 it was adjudicated to Isaac Lambert, William Brothers, and Jonah Bastable.

Their claims have been asserted contradictorily with Gurry and Garland, or their successors, and all with a certain degree of success. The heirs of Mooney who succeeded to the rights of Lambert & Brothers, after instituting legal proceedings, compromised with Gurry & Garland, and procured a share of the land. The heirs of Bastable, by the judgment of our predecessors (reported in 5 An. 419) recovered an undivided sixth of the Bringier tract, subject to certain deductions for expenses common to all the co-proprietors. They would have recovered the other sixth, but the recorded interest of Garland had passed into the hands of Staey, whose good faith protected him.

Now, in the sale of his contingent claim to Gurry and Garland in 1841, the vendor inserted the following clause : “ this sale is made without any warranty on the part of Mr. Bringier, except against himself, his heirs, and those claiming under him.” The sale was for the express consideration of $5,000.

Referring to the counter letter we find that Gurry and Garland stipulated that when the title should be confirmed, and the claims of certain settlers adjusted, they would convey and relinquish to the said Bringier one-third of the land that should remain.

Suppose, for a moment, that Gurry and Garland were the defendants instead of Stacy and Sparrow. Could Bringier, under these facts be permitted to say, “ I am the owner of one undivided third of these lands in common with you, by virtue of this counter letter?” .They would reply, “we have, after great trouble, expense and litigation, got a title to a part of the Bringier tract; you sold us your claim, as an inchoate claim, really subsisting in you and not alienated at the time; you warranted us that we should be disturbed by no one claiming under you ; you have broken your warranty ; your sale to us was absolutely null; the thing belonged to other persons to whom you had previously assigned it yourself; those persons have disturbed us ; after we had paid, you $5,000 for a claim you did not own, and spent our time and money in get-, ting a confirmed title, your assignees stepped in and took a considerable part of the land from us; they would have taken it all but for a timely compromise, which we made for our own protection, and not for your benefit, because you, violated your contract with us.”

This defence, as the evidence stands, would effectually' bar Bringier from, claiming a specific performance of the promise to recover one-third of the lands,, even were he litigating his rights with the original parties to the counter letter.

That instrument is not an absolute title to anything; it is not translative of' dominion over anything. It is a conditional promise to convey in the future, and refers to a deed from thepromisee, which itself conveyed only an inchoate and. contingent claim, but with a warranty against disturbance from his own assigns; which has been falsified.

The most ample notice of such an instrument brought home to Stacy and; Sparrow could1 not enable Bringier to assume the position of1 a co-proprietor-with them, for they hold under titles of the highest dignity.

If Bringier had any rights growing out of his dealings with Gurry and Gar-, land, he should have asserted them contradictorily with those parties.

It may be added that if the counter letter could possibly be regarded as a title or conveyance, it was improperly recorded in the mortgage book, and such a registry would not operate as notice.

Nor could the fact that a mortgage certificate was read at the sale when Stacy purchased, in which a loose reference ivas made to a conveyance said to have been executed by Gurry and Garland, of one-third of the land, without stating to whom, be considered as giving Stacy legal notice, that Louis Bringier was an owner of an undivided third, so as to put him in the position of a purchaser in bad faith, especially as Stacy bought under a judicial mortgage recorded before the registry of the counter letter in the mortgage hook, as shown by the certificate read at the sale. The judgment is affirmed with costs.

Re-hearing refused. .  