
    No. 10,795.
    S. D. Robbins vs. Thomas J. Martin, Jr., et als.
    What is termed a pica of no cause of action, ceases to bo such, and degenerates into an answer, if it presents an essential averment of fact nut stated, or admitted in the petition.
    Dilatory pleas must be tendered and disposed of in limine, and can not be legally embodied in an answer.
    The prescription of one year, which is provided by R. O. O. 2498, is not applicable to a suit instituted under It. C. 0 2511 and 2314. 4
    The articles of Code of Practice 410 etseq., relative to “ real tender” do not relate to a suit brought under the last mentioned articles of the Revised Civil Code; but the putting of defendants in mora, in conformity to Articles 1911 and 1938, is required in suits for the rescission or cancellation of sales.
    In case a party to a contract of conventional sale of real properly, seeks its cancellation on the ground that he has been evicted from a portion thereof which is of such consequence relatively to the whole that he would not have purchased it without the portion from which he has been evicted, the question is, whether in point of fact, the plaintiff has been evicted from a part of the property possessing such consequence, when the contract wa§ entered in.fco,that its acquisition operated as an essential inducement to the trade.
    An absentee may be brought into the courts of this State by means of substituted service in all cases partaking of the nature of an action in rent; but lie can not be thus reached and subjected to judgment in our courts in a purely personal action.
    APPEAL from the Eighth District Court for the Parish of Madison. Montgomery, J.
    
    
      . 8. D. Robbins and Wade R. Young for Plaintiff and Appellant.
    
      A. L. SlaeJc, Curator ad hoe, for the Absent Defendants, Appellees.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff seeks the cancellation of a conventional sale of a tract of land made to him by the defendants, on the ground that he has been evicted from a portion thereof which is of such consequence relatively to the whole thát he would not have purchased it without the part from which he has been evicted.

Defendants being absentees were cited through a curator ad hoc, who first tendered several peremptory exceptions, viz: (1) No cause of action; (2) Prescription of one year; (3) Want of previous legal tender, or putting in mora; (4) Want of jurisdiction ratione personse.

Over the objection and exception of defendant’s counsel the third exception was by the court referred to the merits, the others were overruled, and the court rendered judgment rejecting plaintiff’s demand for cancellation of the sale, bui reduced the price of sale by §1400, as the estimative value of the portion of the land from which he had been evicted, proportionately to the total price of sale.

Prom this judgment plaintiff has appealed, but the defendants have not answered, nor requested any amendment thereof. Hence our inquiry must be whether it should be affirmed or additional relief granted the plaintiff and appellant.

I. '

While it might have been preferable to the defendants, that their plea of want of tender should have been disposed of in limine, we can not discover in what way they were injured by its reference to-the merits, as the judge a quo evidently regarded it as not well taken, and proceeded to pass upon the merits. Indeed, had he-entertained a different view, a double appeal might have resulted' with additional delays arid expenses. As it was a question which involved the administration of proof we think it was clearly the province of the judge below to determine the propriety of its reference.

II.

With regard to the plea of no cause of action, however, we have-frequently had occasion to say that it ought to be separately presented and disposed of in limine, as it raises the single issue of the sufficiency of the stated cause of action to justify a judgment in the premises; and that it should not be incorporated in an answer or relegated to the merits.

But in this case we think the plea has been misnamed “ no cause-of action,” as it most distinctly presents an element of defense which-is incorporated in defendant’s answer and founded on an alleged fact which is not averred in plaintiff’s petition.

Possessing this feature,’necessitates its being classed and treated as a part of the answer.

The answer also includes other matters of exception, dilatory and declinatory in character, which need no further mention than to say they should have been separately urged and disposed of before issue was joined on'the merits, and this course not having been pursued they were waived. Chaffe vs. Ludeling, 34 An. 962; Boone vs. Carroll, 35 An. 281.

III.

Defendants urge the plea of one year’s prescription that is provided in R. C. O. 2498, and plaintiff’s counsel insists that same is not applicable, in this case. In this opinion we concur. That article declares that the action for “the supplement of the price on the part of the seller, and that for dimunition of the price, or for the cancelling of the contract on the part of the buyer, must be brought within one year from the day of the contract, otherwise it is barred.”

It occurs in the sixth chapter of the title of sale, which treats “ of the tradition or delivery of the thing sold." The seven articles which immediately precede it deal with the question of the measure or extent of the delivery of the thing sold and of the result of there having been, more or less, delivered than the calls of the contract required. Therein it is declared that if the sale is one per aversionem “ the seller is obliged to deliver to the buyer * * * the quantity mentioned in the contract or . * * * suffer a diminution proportionate to the price.” R. C. C. 2492.

“ If, on the other hand, there exists an extent of more than what is specified in the contract, the buyer has a right either to .give the supplement of the price or to recede from the contract,” etc. R. C. C. 2493.

. “In case there is room for an augmentation of the price for the surplus of the measure, the buyer has the option to give the supplement or to recede from the contract.” R. C. C. 2496.

These articles relate solely and exclusively to the relative and reciprocal rights and obligations of seller and buyer, respectively, with respect'to the measure of the thing delivered under the contract. The prescription referred to in R. C. C. 2498, applies to the rights of .action of both seller and buyer alike.

Plaintiff’s action is founded on R. O. C. 2511 and 2514, the gravamen of which is that the buyer, who has, .subsequent to the sale and delivery of the property, been evicted from a part thereof, is entitled to a cancellation of the sale, or to a diminution of the price. These articles occur in the same title and chapter as the articles last mentioned, but in a different section which treats “ of warranty in case of eviction from the thing sold." They do not purport to treat of the* rights of the seller at all. They proceed upon a wholly different theory from that on which the former articles proceed. They assume that the whole of the property sold, or purported-to have been sold, has been delivered, but that the vendee has been subsequently evicted from the whole or a portion thereof. The prescription urged is not applicable, and defendant’s plea of prescription was therefore properly overruled.

IY.

Of necessiti’V the plea to the jurisdiction of the court ratione personae, must be postponed until after our consideratioñ of the merits, as plaintiff’s appeal brings up for review the cancellation vel non of the sale, and the question whether of not the judge was competent to render the alternative decree he did, will depend upon the result of our opinion and decision of that question.

Recurring to the question raised on the defendant’s exception of want of previous legal tender, or putting them in mora, as a condition precedent to the institution of suit for the cancellation of the sale, ■vye have no hesitancy in reaching the same conclusion the judge a quo evidently did, that plaintiff had substantially complied with the law.

In our opinion, Articles of the Code of Practice 410 et seq., with regard to “real tender,” have no application to this case.

Article 410 declares that “if the object of the obligation on the part of the debtor be real property, a debt, or some other personal right which the debtor has promised to sell, transfer or convey to the creditor, such debtor must previously give written notice to • the creditor to be and appear on a certain day and at a fixed hour, at the office of some public notary * * * in order there to receive the sale, cession, transfer, or conveyance which he is ready to make to him, either of.the real estate, debt or personal right •which he had contracted to transfer to such creditor."

Article 411 declares that “ after due notice having been given the debtor must appear,” etc.

Article 412 declares that “if the creditor refuse to accept,” etc.

These provisions relate exclusively to the “real tender” which a party must first make, of the conveyance he has contracted to execute to another as a condition precedent' to the institution of suit for ’compliance on the part of the contractee.

The decisions of this court, ancient and modern, are to the effect “ that in all action of recission, the party seeking relief must first offer to restore his adversary to the situation he was in before the contract.” McDonough & Coon vs. Vaughan, 14 An. 716.

That and like decisions are predicated upon the provisions of R. C. C. 1911 et seq. (1904 et seq., old numbers) which indicate the manner in which a “ debtor may be put iii default.” Article 1911 R. C. O. provides that the debtor may be put in default in three different ways, one of-which is ‘“by the act of the creditor,” which is defined as an “ act of the party when * * he demands that (the contract) shall be carried into effect; which demand may be made either by the commencement of a suit, by a demand in writing,” etc.

•The provisions of those articles have been frequently applied to actions for the recission, and those for the cancellation of sales; and the Code further declares that “when the breach (of the contract) has been passive Only, the damages are due from the time The debtor has been put in default,” etc. R. O. O. 1933; Livingston vs. Scully, 38 An. 1%1.

It was, in our opinion, perfectly proper and competent for the plaintiff to put the defendants in default by means of a letter sent them by mail offering to restore them to the situation they were in before the sale was made; and we think the evidence sufficiently discloses a full compliance with the law in this respect.

V.

On the merits the facts are substantially as follows:

In January; 1889, Annie E. Martin and Thomas J. Martin, Jr., the defendants, executed, respectively, in the cities of Louisville, Ky., and Chicago, 111., two separate acts of sale transferring and conveying, or purporting to transfer and convey to the plaintiff a certain tract of land, which is situated in the parish of .Madison, in this State; the vendors being joint half-owners thereof at the time.

The price or consideration of the sale was $10,000, of which one-third was paid in cash, and for the remainder the plaintiff as purchaser executed and delivered his two certain promissory notes due at one and two years. One of these credit instalments 'was paid at maturity, January 2, 1890, only a few days before this suit was filed.

The entire tract was stated to contain 1098 acres, of which 391 were cleared, and susceptible of cultivation, and which had been, at one time, cultivated; and the residue of 617 acres was wood land.

It appears from the evidence that there is now, and was at the date of the sale, an outstanding title in other persons to 280 aerés the mere existence of 'which, it is claimed, operates an eviction of plaintiff therefrom, entitling him to his action for the cancellation of the sale'or a proportionate diminution of the purchase price.

It is satisfactorily shown that this defect in his title, and this deficit in the quantity of land conveyed, was only brought to the plaintiff’s knowledge about the 20th of January, 1890, and subsequently to his making payment of the second instalment of the purchase price. Immediately afterwards he gave the defendant notice thereof as stated'.

The proof shows that the particular 280 acres to which plaintiff obtained a defective and inadequate title, are wood lands of a superior quality. The other wood land is low and marshy, and of comparatively little value. The open lands are not in a high state of. cultivation, and the buildings and improvements thereon are inferior in quality and limited in quantity.

On this state of facts, is plaintiff entitled to the cancellation of the sale?

Defendant’s make the point in their answer that an outstanding title does not constitute such an eviction as to authorize an action of warranty. But it has been otherwise decided.

In Landry vs. Garnet, 1 R. 362, the court observed:

“ It is true that, by the authorities to which we have been referred, the doctrine is well established that in order to constitute an eviction it is not absolutely necessary that the purchaser should be actually dispossessed.
“That eviction takes place, although the purchaser continues to hold the property, if it be under a title which is not that transferred to him by his vendor; as if he should inherit the property, or acquire it by purchase from the true owner.”

In McDonald vs. Vaughan, 14 An. 716, that doctrine was recognized and applied, and to those enumerated the court added another ease in which an actual eviction was unnecessary, viz: ‘ ‘Or if a perfect title exists in some third person whereby it is rendered legally certain that his vendor had no title.” In that view we concur,-and it applies to this case.

The District Judge of the locality, who is familiar .with the locus in quo, and upon whose judgment on a question of fact we feel disposed to rely, was of opinion, and decided that such a title did exist in other persons, to the 280 acres mentioned. The curator ad hoc, in brief and argument, concedes the correctness of his decision as to a part of this land, but he questions its correctness as to the remainder of 160 acres. On this theory, we feel bound to maintain the opinion of the District Judge. No palpable, or manifest error has been pointed out in his ruling.

On the main question, we can not perceive how it can be justly said that this 280 acres of wood land, valuable though it be, was “ of such consequence relatively to the whole” that the plainttiff would not have bought the land at all without it.

The question is whether the portion front which the plaintiff has been evicted was in point of fact “ of such consequence relatively to the whole,” that he would have been unwilling to have made the trade at all had he known of the outstanding title? Was that particular tract an inducement to thp trade, and without which it would not have been made? The District Judge declined to accept this theory of plaintiff’s contract, and we coincide with him.

Had this diminution existed in the quantity of cleared land, or any moderate proportion, of same, we might have been more impressed with plaintiff’s claim. We are unwilling to increase the allowance made by the judgment appealed from, and in the absence of an answer to the appeal it can not be reduced ex propria motu.

Having thus concluded, the question of jurisdiction rations persones arises; but we are satisfied that this exception is not well taken.

In Penoyer vs. Neff, 95 U. S. 730, in was said that “ substituted service may answer in a.11 actions which are substantially proceedings in rem. But when the entire object of the suit is. to determine the personal rights and obligations of the defendants, that is, when the suit is merely in personam, constructive service is insufficient for-any purpose.”

After quoting this paragraph in quite a recent case, we said:

“ It is obvious in this case that the sole object of the proceedings, as-against Hernandez” — who was an absentee — “is to define the status of this property, to determine the validity of his apparent lien upon it in order to enfore a contract respecting same. He can not be reached for personal service, and unless he could be brought in by such substituted service, his mere absence would have the-effect to place and keep this property out of commerce.
“We therefore hold that he was validly brought into court through service on the curator, and will be concluded by the judgment.” Duruty vs. Musachia, 42 An. 357. In that case the validity of a title to real estate was the question involved, and there was drawn into the controversy the validity and binding force of a judicial mortgage in favor of an absentee; and it became important to- determine whether a judgment predicated upon substituted service would be binding and efficacious as to him. We held that it would. '

In the more recent case of Young vs. Upshur, 42 An. 367, we had! under consideration and decided a controversy between citizens of the State of Mississippi and those of the District of Columbia, respecting an unliquidated interest in a judgment for money, at the time pending on a writ of error from.the Supreme Court, and we entertained jurisdiction and rendered judgment against the absentee defendants, upon substituted service of citation, on the ground that the situs of the judgment was in this State, and, hence, the action being to reach and ascertain an interest therein, it was in the nature of an action in rem, and not one in personam.

In McKenzie vs. Bacon, 38 An. 765, we examined this question of jurisdiction as applicable to a suit for dissolution of a sale of real estate, on account of the nonpayment of the price, some of the intervening owners of which residing out of the State being made parties defendant by appointment of a curator ad hoe, and notwithstanding there was a large amount of money claimed on the score of rents and revenues, for an accounting whereof the nonresidents might be ultimately held responsible, we maintained it on the ground that it was “not a purely personal action, as is contemplated in our Code- of Practice, and as understood in jurisprudence, but it partakes of the nature of a proceeding in rem.” ’ ■

In our opinion the instant case is an exact parallel to the eases cited. If indeed a nonresident can not' be brought into a court of this State in such a case, such a cause of complaint as that propounded by the plaintiff, though well grounded 'in our law, would be practically remediless.

The plea as to jurisdiction is therefore overruled.

Judgment affirmed.  