
    WILLIAM H. ELDER VS WILLIAM S. FLYNT AND WIFE
    NO. 8862
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL. JUDGE
    MARCH 5, 1923.
    
      
    
   By WILLIAM A. BEID,Judge.

Plaintiff sues the defendants, who, as man and wife, re shown to have sold, in 1920, to plaintiff, through the usual homestead sale and re-sale, certain real estate described in the petition and which, at the time of the sale, appears to have been nacumbered with a paving lien. The lien in question was duly recorded in the Mortgage Office in December, 1916, at which time the defendants wore the then owners of said real estate, they having aoquired same from one Dennery in September, 1916. Plaintiff prays for judgment in the sum of #190.27 against defendants, jointly and in solido, upon the allegations that he has already been compelled to pay portions of the aforesaid lien and will ultimately have to satisfy the entire unpaid balance of said lien(i the existence of which he was wholly ignorant at the time of his purchase from defendants. It is further alleged that plaintiff knew nothing of the unpaid paving lien until January, 1921, when he attempted to pay the City Taxes for 1920 on the said property. Prom tax receipts offered in evidence it appears that plaintiff has paid the annual installments due on said paving lien for the years 1920 and 1921, amounting to $63.82, and leaving a balanoe of $126.46 still unpaid. It also appears from the record that the usual clauses of warranty and subrogation form part of the deeds by which defendants conveyed and under which plaintiff's rights, if any, have arisen. The mortgage certificate in the name of the defendants herein and annexed to their deed of conveyance, declare, and are warranted by the act^to show no encumbrances on said property in their names.

Defendants have answered this suit with the special averment that they sold the property to the plaintiff with the understanding he would continue to make the annual payments on account of said paving lien along with the payment of the taxes, as they, defendants, have tm prior to miking tho sale ot said property-'*» plaintiff, or, in othor words, that tho plaintiff assune* thé'.pnsaaf hill ani relieved defendants of.any liahility beoius# of it. Já support of this aofonoo, toatlnony of hath dofondantO herein was offorod and was admitted hy the trial oeurt orar plaint iff !o Strew*-eus ohjeotion.

Vo aro of tho opinion that oneh ovidoneo. nhoúld k**t hoen ozoludod, no ioeuoo of fraud nor.error haring arisen in this oaao. (Artiols £276 B.O.O.). it is not noeoosary, to oito tho in--nuaorahla authorities in support of this aoadonio rulo of .evi donee; ♦- She warranty oontainod in defendants’ deed of convoyaros and the alausas of suhrogation available to plaintiff through hath dsod» hy «hioh he toqulrad, fully support a right and oauso of aotion i» favor op plaintiff whorehy ho oan invoke the law in protection fren any tjfiifMJve'of warranty arising fremtho transaction* hors i# volved.. Shore la a raoord admission,in defendants’ answer that they know of tho enlátenos of this lisn long prior to tho sale; and hohof( under tho law, they were warrantors against suoh ohargos unless »a*e wore declared, at the time of tho sale, in suoh positive and uaamfcifW* ous terms as to prooludo all doubt ooncoming tho purohasor's eis$<* tlon to assume the samo. Vo find no merit in tho argument Of counsel, for defendants that tho testimony erroneously admitted was not It contradiction of tho declarations oontainod in the aot or in the mortgage oortifleats, hut was simply supplemental thereto,

She plea of estoppel heroin urged and whloh is. hesod upon tho foot of plaintiff's subsequent payment ox two inotalláoste due on tho paving bill, after plaintiff's aoquisltlon, is nst well, founded, beoause suoh sets of -payment are not alleged nor shown to have in any manner operated to defendants' proJudies* nor «an It 7ft* oonoluded from the faets of this oaso ftnat tho plaintiff in ány.nen; nor intended, in making suoh payments, to thereby ..release dOfOhlwif under their warranty to him. It nay also he netod'thht theta i;« ytg prescription pleaded: or which could have been plead at the time of the institution of this action.

For these reasons, we are of the opinion that the defendants must respond under their warranty to plaintiff to the extent only that plaintiff at the time of this suit had suffered because of his having paid the aoorued installments on the said paving lien. There is no ether basis upon whloh a moneyed judgment can be predicated.non constat that the installment^ yet to accrue may, for /ií&cúXusC some unforseen reason, be cancelled, remedied or annulled and the property now burdened therewith be ultimately relieved of said en-cúmbranos, at least to the extent of the balance yet to accrue. Plaintiff should, therefore, be reserved the right to bring suoh action in the future against these defendants as may be necessary to protest him in the event of his having to pay any future installments arising under the' lien.

IT IS, THEREFORE, ORDERED that the Judgment herein appealed from be and the same is hereby reversed, and IT IS HOW ORDERED, ADJUDGED AHD DECREED.that there be Judgment in favor of plaintiff and against defendants, jointly and in solido, in the full sum of SIXTY THREE and 9S/l00 DOLLARS ($63.92), with interest on #32.51 thereof at the rate of five per cent, per annum from January 14, 1921, and for like interest on #31.41 from January 19, 1922.

IT IS FURTHER ORDERED, ADJUDSED AHD DECREED that plaintiffs rights be and the same are hereby reserven xo him to recover by due process of law against defendants herein any future installments. of the paving lien which he may hereafter discharge and whloh is now recorded in the Mortgage Offioe for the Parish of Orleans, in P.B. 21, pages 119 and 120, under date of December 26, 1916, and bearing on the following described property, to-wit;

"A certain lot of ground, situated in the 6th Distriot of this City, designated by the letter 'A,1 of Square Ho. 364, bounded by Prytania, Pitt, Valance and Bordeaux Streets, and measuring 45 feet front on Prytania Street by a depth of 100 feet between parallel lines.”

II IS KTRTHER ORDERED, ADJUDGED AND DECREED that all oosta of this suit in both oourts bo born* by dafendanta herein.

JUDGMENT REVERSED

MARCH 6, 1923.  