
    PETER N. CUSELICH VS GEORGE W. HINGLE
    NO. 7356.
    CHARLES P. CLAIBORNE, JUDGE.
    June 4th. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

This is a petitory aotlon.'

The issues in this case have been much simplified by the statement in plaintiff's brief that he will press only that portion of his claim which asserts the title by him acquired from Benjamin Evans on August 6th. 1918 as set forth in % XV of his petition.

The facts are as follows *

William M. Prescott was at one time the owner of a portion of Section No. 68 of Township 19 S. R. 17 East in the S. E. Land District of Louisiana, Parish of Plaquemines^ measuring one arpent more or less front on the Mississippi River by forty árpente in depth, bounded above by lands of Ootave Barrois and below by lands of Joseph Angelo whloh tract of land, had been patented to him by Patent No, 838 dated July 31st.1867, registered BK 88 p 366 during his marriage with Sarah Newman widow by first marriage of Davis Evans, and whloh was therefore community property.

Prescott died July 16th. 1884. Upon the petition of his widow his Succession was opened in the Parish of Plaque-mines under the No. 68,. She prayed for the affixing of the seals upon the efforts of the deceased. The Court appointed Franois 3. Oaro, Third Justioe of the Peaoe. The report of that offloer shows that he affixed the' seals on July 88nd. 1884.

The widow in another petition alleged that no Issue was born of her marriage with the deceased, and that he had left no ascendants nor descendants, nor collateral relations known to her, and that it was necessary that a person should be appointed to defend the interests of the absent heirs of the deoeased' in case there should be anyj that he had left movable and immovable property belonging to the community which had existed between them and an inventory of the same was also necessary.

The Court appointed James Wilkinson, attorney-at-law, to represent the absent heirs of the deceased, and D. A. Thlbaut, Clerk of Court,' to make the Inventory. The Inventory was made by Thibaut on July 25th. 1884 and filed in court.

On October 6th. 1884 the widow filed a petition in which she alleged that her husband died intestate, leaving neither ascendants nor descendants, and that she was entitled to be sent In possession of all the property left by him as owner for one-half,^as surviving widow in community^ and as usufructuary for the other half during life. Upon the same day an order was signed accordingly.

By an act dated Decomber 5th. 1884 Widow Wm. M. Prescott sold to Morgan Loar and George W. Hingle, Jr. the following property:

"The undivided one-half of the following described property and her right of usufruct to the other half of said property, to-wit: (Then follows a description similar to the one given above) Which property was acquired by said vendor in the following manner, to-wit:- The one undivided one-half as widow in community of the late Wm. E. Prescott, and the other one undivided half as usufructuary of said Wm. M. Prescott, as per order of the Honorable the 24th, Judicial District Court, in and for the Parish of Plaquemines, bearing date October 6th. 1884, issued in the matter of the Succession of the said late Wm. M. Prescott No. 58 of the docket of said court. And the said Mrs. Sarah Evans widow of the late Wm. M. Prescott, furthermore binds herself, guarantees, agrees and stipulates to give and grant an absolute and perfect title to said purchasers on the 6th. day of October 1887 of the one-half // of said described property of which she is now usufructuary.

The consideration was $300.00; $200.00 cash and one note for $100.00 payable October 6th. 1887.

This note of $100.00 wás paid and the mortgage can-celled. We gather these facts from the briéts as the act of sale in not in the record.

Sarah Newman widow Davis Evans widow Wm. M. pres» oott lastly wife of James Morris died on July 3rd. 1889; her succession was opened tinder No. 134 in the Parish of Plaque-mines; Benjamin F. Evans alleging himself her only child and heir was recognized as such and sent in possession by Judgment rendered July 23rd. 1889. Neither in the. petition nor in the Judgment was this property mentioned.

In a supplemental petition filed August 6th. 1912,-twenty-three years later, Benjamin F. Evans alleged that Vm. H. Prescott had acquired the Section 55 described above; that while Prescott had sold certain tracts of said sections, some parts of it remained, which had been inherited by his widow, petitioner's mother; thát in-thei-judgment recognizing petitioner as heir of his mother, this section 55 was not mentioned^ and he desired to be sent in possession of all the rights of Vm. U. Prescott and of his widow in the remaining parts of said section.

To this petition were annexed the affidavits of two witnesses and of petitioner himself swearing that Vm. M. Prescott died leaving no heirs except his wife Sarah Evans.

On August 6th. 1912 there was Judgment recognizing Benjamin F. Evans as the owner of all the unsold portions of Section 55, and sending him in possession.

By act dated August 6th. 1912 Benjamin F. Evan» sold to Peter Cuselich all his rights, titles, and interest in and to the remaining parts of Section 55 acquired by him by virtue of the two judgments hereinabove mentioned of July 23rd. 1889 and August 6th. 1912.

On November 26th. 1912 Peter Cuselich, through his attorney James Wilkinson, made demand from Geo. V. Single for the ownership of Section 55 and on April 5th. 1915 filed the present suit.

In his petition in this suit Cuselich sets up as his title the act of sale by Benjamin F. Evans to him dated August 6th. 1912.

To this petition George w. Hingle pleaded the exoeptions of no legal right or oause of action and the prescriptions of 3-10-20 and 30 years.

By consent of parties the exceptions were referred to the merits, without prejudice to the rights of the defendant.

For answer, defendant denied that Mrs. Evans Prescott had any further Interest in the section 55 after her sale to Morgan Loar and George W. Hingle Jr. by the act of December 5th. 1884; that the price of #300.00 paid by them to Mrs. Prescott was in full settlement for the whole property.

There was judgment maintaining the exceptions of no cause of action and prescription and dismissing plaintiff's suit. The plaintiff has appealed.

In his reasons for judgment the Judge of the District Court interprets the transfer by Widow Prescott to Loar and Hlngle as an absolute and complete sale of all her interests in the property both as widow in community and as an heir of her husband under Article 924 (918) of the Civil Code.

We do not find it necessary to give the Act of Sale such a sweeping interpretation.

To our minds the Act of Sale indicates a very clear intention on the part of Widow Prescott to divest herself of all possible interest' :in the property in favor of Loar and Hingle. She sold to -them the undivided half of the property which she had acquired as widow in community and her usufruct two of the other half, which/elements of ownership together represented all her present titles to the property;'and furthermore she bound herself and guaranteed to give an absolute and perfect title to the purchasers on October 6th. 1887 of the one-half of said -property which did not then belong to her and of whloh she was then only usufructuary. The judicial proceedings Ir the Succession of her husband Wm. M. Presoott had been prepared with skilljyad in accordance with Article 930 (924) of tha->. Civil Code^fhe seals 4lad been affixed, an inventory had been iaken^bp<t an attorney for absent heirs had been appointed, and a Judgment rendered on October 6th. 1884 recognising her ae widow in community and putting her in possession of all the property left by her husband as widow in community fa* one-half and usufructuary for the other half. She could not sell the naked ownership of the one-half belonging to her husband's succession, aa far as hi3 heirs were concerned, until after the expiration of three years from the judgment putting her in possession; therefore she bound herself to give and grant to Loar and Hingle^after the expiration of said three years f an absolute and perfect title to the one half of the property of which she then had only the usufruct; that obligation was inoluded^^the price of- $3Q0«00^and in order to put it in the power o^purohasers to compel the performance of that obligation, the credit portion of the price, $100.00,was to become exigible only at the same time that her ti-U.e jnlgjht become.perj . foot on October 6th. 1887^But in oase of^doubt the Oode provides, Article 2474 (2449) "The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him". 108 La. 662; 120La. 498; 111La. 273; 43A -213; 962; 4A 120.

October 6th. 1887 came and went by; Loar and Hingle paid their note of $100.00, but Widow WM. M. Prescott took no steps to have herself recognized as the heir of her husband nor to complete the title to Loar and Hingle. But if she had taken such steps and had herself recognized as heir she could not have sold that new title to the undivided half because her obligation to transfer that title to Loar and Hingle had been incurred and had been regi3tered^and because any subsequent title she might acquire to that property would enure to the benefit of her purchasers Loar and Hingle. What she could not sell, she could not transfer by inheritance to hag son Evans, and what Evans could not acquirS^he could not sell to Cuselich, the plaintiff herein.

C. C. 2475 (2450) The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells".

C. C. 871 (867) "Succession is the transmission of the rights and obligations of the deceased to the heirs".

C. C. 1013 (1006) "Thfe effect of the simple acceptance of the succession xxx is such that when made by an heir of age, it binds him to the payment of all debts of the Succession &en, Also C. C. 1423 (1372)

C.C. 3144 (3111) "If at the time of the contract the debtor had not the ownership of the:thing pledged, but has acquired it since by wrhat title soever, his ownership shall relate back to the time of the contract, and thepledge shall stand good".

C.C. 3304 (3271) "If a person contracting an obligation towards another, grants a mortgage on property of which he is not the owner, this mortgage shall be valid if the debtor should ever after acquire the ownership of the property, by whatever right".

Any title acquired by the vendor subsequent to the sale Inures to the benefit of the vendee and his (subsequent sale to another person transfers nothing. 50A 869; 49A 9S5; 43A 859; 39A 359; 33A 283; 25A 159; 18A 321; 16A 96; 5A 533; 121*170; 9 La. 1 lidity of the Judgments in favor of Widow Prescott or of her son Evans, nor of their titles, nor do we pass upon them. All We decide is that Widow Prescott sold a portion of Section 55 to Loar and Hingis^and that she was bound to warrant the title to it; that a like obligation rested upon her son and heir; that any title she or her son subsequently acquired to that land Inured to the benefit of Loar and Hingle.and that neither she nor her son^disclose a cause of action against them in a petitory action alleging a better title. <7 >; 9 La. 100; 5 N. S. 246; 1 Oreenl Ev £ 24»_ &m~u.s.. 7¿ 2t<s- S/y~¿dz^SklA An heir Is bound to warrant and defend a title granted by the one from whom he inherits. 12La. 170; 9R 3; 2 Pothler Venta, p 77_ UJkzdfv?, ¿ünúu ¿fast. A-/3S — 16£; 43 Dallo# Rep^ Leg. p 241 £ 939¿ 940, _ t3 ^ ‘T% ^ ^ ~ / 'á - /are not concerned/ with the question of the va-

judgment affirmed

June 4th. 1918.  