
    NO. 8154
    COURT OF APPEAL PARISH OF ORLEANS.
    SUCCESSION OF MRS. MARIE BRAUGHE
    
      
    
   Dinkelspiel; J.

This is a ruis by un adjudicates of property for the return of rent oolleoted by the former owners.

The fscts are as follows:

Preparty w.-.s v.ivsriieed for sale in this Suooession under the following terms ¿ni conditions fixed by the ¡judgment of Court:

"One third or more cash; belanos, if sony, in squv.l installments at one or two yeers, or st one, two end thr-.-e years, all at purohasars option; tho credit portion, if any, to be represented by notes of tho puroh'.ser, bearing interest payable annually at the rate of seven per cent per annum from date of adjudication until final payment; said notes to be secured by vendor's lien and privilege and special mortgage on the property soldi, and the 6.013 of sals to oonuain all the usual security clauses; the purchasers to pay over end hoove the amount of-adjudication the taxes of 1S30 and the costs of sale, including revenue stamps and oertificates; purchasers tv be entitled to rents only from the final signing of the aot3 of sale."

The auction sale took plaoe on August 5th, 19.30; Mrs. Esther Gordon became the adjudicates of e. certain property; on November G3nd, 19S0, she filed the follcviin'g rule:

"On motion of A. D. Danaiger, Attorney for Mrs. Esther Gordon, and on suggesting to the Court, that at the publlo sale herein aiade on August 5th, 1930 mover became the adjudi catee of the property at the corner of Dryr-dss and Clio Streets; that on August 36th, 1930j mover's counsel reported to the representatives of this Suooession the approval of the title eubjeot to oertain requirements; that it took the representatives of the within suo-oession until November 15th, 1930 to oomply with the requirements and to tender an aot of sale to your mover, and that mover promptly passed the aot of sale on that date; on further showing to the Court that under the terms of sale, the deferred portion of, the purchase prioe wad to bear interest from the date of adjudication and the puroha-ser was only to be entitled to -the rents thereof from the date of passing the act of sale, and that the said act of sale was passed without prejudice to the rights of any of the parties hereto with reference to Mis controversy presented by thi3 rule; 'that mover has mole application for either s refund of the interest from August 36th, 1930, to Kovembsr 15th, 1330, or for the rents derived from said property during that period for the reason tU. t the said mover had announced her willingness since Aurmot 26th to pas- the a.ct of sale and that the delay in perfecting the title of the vendors should not be charged to mover in rule v/ho should not be mads to pay therefor, It is ordered by the Court that Mrs. Marguerite B. Clapp, Administratrix of said Succession do show C0.U3S on Friday, November 36th, 1920, at eleven o'clock A, M. why inter-.vt in the said deferred payment amounting to §16,636.65, should not be refunded to mover from August 36th, 1830 to aovembor 15th, 1930, or in the alterne ti ve, why the rents derived from the said property during that period should not be paid to mover in rule.11

To thi3 rule the following return vns made:

"And now into thi3 Honorable Court through undersigned counsel comes Mrs. 11. 3. Clapp, and the other heirs of the deceased as 3j,-.own by proceedings herein s,ni excepts tc chs rule of lire. Esther Gordon on the following grounds:
"Thst Mrs. Esther Gordon w»s not an c.ljudicatee of any of this property herein sold to effect a pfrtition, .but eub'eo-quentily escame the transferee of one of the adjudicatses, ?jnd this transfer was not made until November 35th, when the act of sale was signed and it wee not until that moment C. t Mrs. Gordon vn..s in a position to take title tc the property;

And s .-ooarers further except on the grounl that said rule discloses r.o cause cf action;

And with full reservation of said exceptions for «a-e.or thereto soy:

That under the terms of the judgment of partition, the advertisement of 3&le, and the adjudications as shown by the pro-ces verbal of sale herein on file, all notes given by the purchasers bore interest from the date of the adjudications, and the purchasers were not entitled to rents until the passing of the aots of se-le, and these two requirements were part of the oonsideratior; of the purchase and the Court is without power to change the judgment or terms of sale, even if plaintiff in rule is in a positior to make suoh olaija whioh is denied as set forth in exception No.l herein;

"That at no time previous to the passing of the sale did plaintiff in rule announce that she was the adjudioatee or that she was rcsdy so take the property, and these aupearers and the auctioneer who signed the act of sale never heard of her until the time came to pass the act of sale.
Wherefore ss±d respondents pray that said rule may be discharged with oosts, and for general relief."

This rule came on for trial on January 14th, 1931, when the following proceedings took plaoe:

Hr. D&nzigsr: I offer in evidence a letter written by Hr. Hart, addressed to me, of date November 13th, 1230.
ur. Hart: I objeot on the ground that the rule discloses no cause of aoticn, and no evidence is admissible.
The Court: (after argument by counsel) The objection is sustained on the ground that tne pleadings set forth no oause of action.
Hr. Denziger: To whioh ruling of the Court, counsel for plaintiff in rule exoepts, and reserves this-note in lieu of a formal bill of exceptions, requesting permission of the Court to attach to 3aid bill the letter in question. I would cl30 ask youfc 'honor to he..-r me in connection with my bill of exceptions, as to the circumstances under whioh this aot pas passed.
Ths Court! X will permit you to reserve your bill of ex-o.e.jtlone and will permit you to attaoh to it the dooument in question as ?. part thereof, but X will not hear any testimony."

Thereupon the following judgment was rendered!

"When after hearing pleadings, end arguments of oounsel on exoeptions to said rule filed by defendants on November 30th, 1920, and the Court, for reasons orally assigned, being of the opinion that said exoeptions to said rule is well founded, It is ordered that 3aid exoeptions be maintained and said rule dismisssai at mover's oosts."

After an ineffectual application for a new trial, the plaintiff Mrs. Gordon, has taken this appeal.

The plaintiff in rule bases her right to relief upon the following Artiole of the Civil Code;

Art-. 3610 (358?) If the objeot adjudged is an immovable for whioh the law requires that the aot of sale shall be passed in writing, ths purchaser may retain the prioe, and the seller the possession of the thing, until the aot be passed. This aot Ought to be passed within twenty four hours after the adjudication if one of the parties require itj he who oooasaions a further delay is responsible to the other feu in damages."

We are of the opinion that the plaintiff's rule did disclose a oause of aotion, under the Artiole quoted. If the sale took plaoe on August 5th, and the aot was passed on November 15th 1930, a period exo-.eding three months, it is evident that the purohaser suffered a damage represented by the rent due for that period, provided that the delay was oaused by the fault of the Succession representatives, and that it oould have been avoided by reasonable dlligenoe on their part,- and was not oaused by the ordinary and necessary oerclfioatea, dooumant3 and proofs preoesding aots of sals, nor by the requirements of the purohaser. For that purpose evidence should have been heard to show that the vendors were not at fault or that the purohaser Vías at fault, or, in the language of the Artiole, to establish who it was who oooassioned the further and avoidable delay in order to make him i3sp bear the demages oaused by the delay. When the condition of sale provides that the purohaser shall be entitled to rents only from and after the signing of the aot of sale, the conditions means that the purohaser shall not be entitled to rents during the ordinary delays neoessary and inoidental to the passage and signing of the aot of sale; the Courts oannot be ashed to interpret suoh a olaim as meaning that the vendors have the right at their pleasure to procrastinate unnecessarily the passing of the aot, and to appropriate the rents, to the injury of the pur-ohaser.

It is therefore ordered, that the judgment herein be reversed and set aside, that the exceptions of no cause of aotioi be dismissed, and that this rule be reinstated to be tried and determined upon any other issues and in aaoordanoe with the views hereinabove expressed, the oosts of this appeal to be paid by the heirs of Mrs. Braughn end the oosts of the Distriot Oo.urt to await the final judgment herein.

-Exception overruled and oa3e remanded.-  