
    MELANCON'S HEIRS vs. ROBECHAUD'S HEIRS.
    APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. MARTIN, THE JUDGE OF THE SEVENTH PRESIDING.
    On remanding a cause for trial, between the warrantors, the plaintiff, in the demand in warranty, may amend his answer so as to claim damages from his warrantor. The amended answer does not change the substance of his demand, or legal the recourse against his warrantors.
    Under the old Civil Code, the party evicted will not be allowed, as damages, a proportion of the price of sale, equal to the quantity of land from which he has been evicted: But in assessing damages, when the sale is not cancelled, he is only to be re-imbursed the value of the evicted pari, according to its estimate at the time of the eviction.
    
    When the court is unable, from the evidence, to assess the value of the evicted premises, it will remand the ease for this purposo.
    This case involves a series of litigated contests, remarkable in the history of our jurisprudence, beginning in the year 1819, coming down to the present time, and still pending. This legal controversy has been prolonged from peculiar circumstances, until nearly all the original parties have died off, and the second and third generations are destined to battle the glorious uncertainty of the law, to a sad conclusion, and reap the bitter fruits of an unprofitable controversjq when there is nothing left but a couple of arpents front, of poor land, on the borders of the bayou Teche, to be received as the prize of the victorious party, which remains a blighted and barren monument of the unprofitableness of a protracted law suit.
    The eminent counsel who were employed to conduct this extraordinary case, in the outset of their professions, have labored and battled at the' bar, until they have grown rich and become weary of legal strife, and one of them has retired, on his ample fortune, to enjoy the comforts and blessings of a quiet life, while the other is elevated to the distinguished station where law, justice and equity meet together, and are dispensed with a view to end the bitter strifes and unprofitable legal controversies of men.
    At the probate sale of the succession of Charles Melamjon, deceased, in the Parish of St. Martin, in 1819, Dr. Jean Duhamel, became the' purchaser of a tract of five arpents front of land on the bayou Teche, for the price and sum of six thousand one hundred and fifty dollars, payable by instalments. When the first instalment became due, and suit instituted to recover it, in 1820, Duhamel, finding he had made abad bargain, resisted payment, on the ground that all the formalities of law, in selling minor’s property, had not been complied with, but was unsuccessful. See 10 Martin, 225.
    This suit again appeared, because the judgment did not express the sum for which it was given, but this court said the “ judgment was valid, although the sum is not stated therein, when it appears in the record.” 3 Marlin, N. S., 7. The case now assumed a new form, in the person of Pierre Broussard vs. Jean Duhamel, to evict the latter of the largest portion of the five arpents of land, when the court decided, “ that a witness having an interest in the question to be determined, and none in the event of the suit, the objection goes to his credibility and not to his competency an'd “ that purchasers under the same title, without partition, cannot prescribe 'against each other, by the lapse of ten years.” From the concealment of a book of surveys, the plaintiff, Broussard, succeeded in evicting Duhamel of three arpents of this-land, "and the latter brought in the Melancjons on their warranty, i They attacked Broussard’s judgment in an action of nullity, j but it was decided no action of nullity would lie against a /judgment of the Supreme-Court, although instituted in'the I court where the judgment was first rendered; 2- Louisiana ‘ Reports, 8. Pierre Broussard renounced the benefit of his ' judgment of eviction against Duhamel, but too late to be of any service; some other persons claimed the land under him, although Duhamel was not put out of possession. Melamjon’s heirs now instituted suit for the last instalment of the price due by Duhamel, the latter set up the judgment of eviction, and prayed a rescission of the sale, to which they offered the renunciation of Broussard, of all advantages and benefits under that judgment. The case was remanded ) from this court, without a decision on the merits. See the • case, 4 Louisiana Reports, 362. By this time, Duhamel \ was dead, and his curator had leave to discontinue all claim for damages against his warrantors, (Melantjon’s heirs) for the eviction, preferring to have the sale rescinded and get clear of a hard bargain. See the case of Broussard vs. Duhamel et al. 4 Louisiana Reports, 366. On the return of the case to the District Court,- there was a judgment rescinding the sale of this land, and Melan^on’s heirs appealed. The judgment was reversed, and a new judgment given against Duhamel’s curator and surety in the original purchase, for the amount of the last instalment due of the price. See 7 Louisiana Reports, 2S6. A re-hearing was granted, and upon are-argument., the decision reversing the judgment of the District Court, rescinding the sale, was taken back, and a new opinion given, rendering judgment affirming that of the District Court. See 11 Louisiana Reports, 317. Melan§on’s heirs, now turned upon the heirs of Fréme Robechaud, the original vendor of Melanin, on their warranty for damages.
    
      Upon the issue thus made up, the district judge decided^ that the heirs of Robechaud, were bound to indemnify the heirs of Melanijon for all the expenses, losses and damages resulting from the eviction. To ascertain the quantum of damages, the price for which the land was sold at the pro-} bate sale of Charles Melan^on’s estate, to wit, six thousand j one hundred and fifty dollars was taken as the measure of \ the damages occasioned by the eviction. The court then ; decreed, that the defendants should pay three thousand J seven hundred and ninety-six dollars, the proportion which ; the price of the evicted premises bears to the original sale, with- legal interest from the time the instalments of said price became due until paid, one thousand dollars the amount of fees paid counsel, and two hundred and seventy-four dollars costs; in all the gross1 sum of five thousand and seventy-one dollars and sixty-seven cents, with interest; to be paid jointly by Robechaud’s heirs. They appealed.
    The case was argued by Mr. Voorhies, for the plaintiffs and appellees ; and by T. II. Lewis and I. E. Morse, Esqrs., for the defendants in warranty.
   Morphy, J.,

delivered the opinion of the court.

The history of this case is a long one, and may be read by the curious in several volumes of our Reports. See 10 Martin, 225. 3 Martin, N. S., 7 and II. 4 Louisiana Reports, 362 and 366. 7 Idem., 286, and 11 Idem., 317. Suffice it to state, for the purpose of the opinion, that Jean Duhamel, •having been finally evicted of three arpents of a tract office arpents of land, which he had purchased from the heirs of Charles Melanin, the cause was remanded for the assessment of his damages against his warrantors. The curator of the estate of Duhamel, who had died before any further proceedings were had in the case, prayed for and obtained leave to dismiss the suit in relation to the prayer for damages, and the judgment, allowing such dismissal, was affirmed by this tribunal, on an appeal brought up by the warrantors.

On the return of the case to the District Court, in 1833, the heirs of Melanin, obtained leave to amend the answer by which they had cited in warranty their vendors, the heirs óf Fréme Robechaud. The case was then continued from term to term, until the fall term of 1838, when by leave of ' the court, again granted, the heirs of Melantjon filed an amended answer, claiming damages of their vendors to the amount of twenty thousand dollars. Judgment having been rendered for a portion of the sum claimed, the warrantors appealed.

On remanding a cause for trial, between the warrantor^, the plaintiff, in the demand in warranty, may amend his answer so as to claim -damages from his warrantor. The amended answer does not change the substance of his demand, orlegal the recourse against his warrantors.

Under the old C°fvieted y!l1 yot be allowed as (lama— ges, a proportion of theprice of sale, equal to the quantity of land from which he But fn assessing fh™aslie i7not cancelled, he is imbursed e the Zd'paft^acmrding to its estimate at the time of the eviction.

Our attention has been drawn to a bill of exceptions, to the opinion of the judge a quo, overruling a motion to annul and set aside the order, permitting the heirs of Melantjon to file their amended answer for damages. We think the judge did not err. In suits of this kind, there are as many issues joined as there are successive warrantors called in, and it is customary and convenient, before trying them, to await the decision of the main issue in relation to the tille. The heirs of Melanqon have been very slow and remiss, it is true, in their proceedings, but their warrantors have been equally so, for they could have had the case set down at any time. The original issue, joined between them, was still pending and undecided. The dismissal of Duhamel’s claim for damages could not affect or destroy that of the Melanqon’s against their own vendor, for the price paid or other damages suffered. Their amended answer did not change the substance of their demand or legal recourse against their warrantors; for under their original citation in warranty, they could have obtained, upon sufficient proof, every thing which the law authorizes a vendee, who is evicted, to recover of his vendor. 14 Louisiana Reports, 138; Vascocu's Widow and Heirs vs. Pavie. The amended answer then only sets forth in detail, the damages they expected to prove; of this, the warrantors cannot complain. But we differ with our learned brother as to the measure of damages to be allowed in a case like the present. Theland had been sold by the heirs of Melantjon, in 1819, for six thousand one hundred and seventy dollars. He has allowed them as damages a proportion of this price, equal to the quantity of land of which they have been evicted. We 4 — — find in the old Civil Code, under which the sale to the Melan(Jon’s was made, the rule we are bound to follow in assess-• jpg their damages. It provides, article 61, page 357, “if in'; case °f eviction of a part of the thing, the sale is not cancelled, the value of the evicted part is to be re-imbursed to the buyer, according to its estimate at the time of the eviction; and not proportionally to the total price of the sale.” The record contains no evidence of the value of the three arpents r recovered by Broussard in 1824. One witness only speaks of the value of the land ; he appraises it at five hundred dol^ars l^e front arpent, at the time he was testifying, to wit, in 1840.

cowth1" unable^ from the evidence (0 assess the value of the Ees0t<u wnTremand the case for this purpose*

It has been pressed upon us, by the counsel, for the heirs of Melangon, that the price they obtained from Duhamel for the' land, in 1819, should be considered as its value, and as giving ’ ,. ,, , , ¿ a ■ a correct measure for the damages they suffered in consequence of the eviction. This we cannot do, for, independant of the positive rule chalked out for us in the law itself, we do not believe that the land was ever worth that price. The estimate of its present value, by a witness well acquainted with the value of lands in this vicinity, shows that if at one time it was as valuable as pretended, it must have been ever since on the decline. The price obtained by the Melamjon’s has always been considered as very high ; and it is now almost a matter of juridical notoriety, that the collusive and fraudulent manoeuvries between Broussard and Duhamel,had only for their object to rid the latter of a very bad bargain. Nay ^as more than once been admitted at the bar, that the land ¡s at present of little or no value: what then were the three * 7 arpents of it worth in 18241 we cannot say. Under such circumstances, we have thought it best to remand the case for a new trial, that, justice might be done between the parties, 1

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that this cause be remanded, to be proceeded in according to law ; the appellees paying costs in this court.  