
    
      DENIS vs. CLAGUE'S SYNDICS.
    
    - , Appeal from the court of the parish and city ofNew-Orleans.
    The buyer who discover* a defect in his title, has not the right rLcSTof the sale, but pension of payment till i^curity be given him.
   Porter, J.

delivered the opinion of the . . court lhe petitioner states that he bough D property at the sale of the insolvent’s estate,and V r J gave his notes for it, payable in seyeral instal-ments; and that since the purchase he has discovered defects of the vendors He prays that the sale be rescinded, unless the defendants give security he shall not be disturbed, and for such other relief as his case may entitle him to. He also prays judgment for $600 expenses by him incurred in keeping the property.

The answer denies the existence of any cause, which can authorise the plaintiff to refuse payment of his notes, or to have the sale made to him cancelled.

The defect in the title proceeds from the act of the vendor of the insolvent. The property was purchased by him during the life of his wife, and made, of course, a part of the community estate. After her death, he sold it as belonging to himself. The plaintiff insists the one half was owned by his minor children, and the sale by the father,without the formalities of law for the alienation of minors’property being pursued, did not transfer their title.

These facts, and the irregularity of the sale, were not much controverted in argument; but it was contended, that West, the vendor of Clague, was also insolvent; that the nity property was not sufficient to pay the com* munity debts; and that the fears of the plaintiff were not well founded.

The 2535th article of the Louisiana code provides that, if the buyer is disquieted in his possession, or has just reason to fear that he will be disquieted, he may suspend payment of the price, until the seller has restored to him possession, or prefers to give him security.

We think the buyer has just reason to fear being disquieted, when he has acquired by a defective title, which does not vest in him a legal right to the property purchased; and that when the title is clearly defective, he has nothing to do with the considerations that may or may not induce others to sue him. No man would wish to acquire property, or hold it, under such contingencies. It is sufficient for the buyer to claim the protection of the law that he holds at the will of others. It was urged that West was insolvent at the death of his wife, and that the children could not hereafter claim the land without becoming responsible for their mother’s share of the debts. Admitting this to be true, who can tell what value the property may acquire before the time of pre - will run against the children? We r ® should think there would be much less risk if West were perfectly solvent; for then his 1 J children could not accept his succession without becoming responsible for the warranty he gave when he sold to Ciague.

Notwithstanding the right of the plaintiff to be relieved, the principal difficulty in the case is, the nature of the relief to which he is entitled.

The court below ordered the sale to be rescinded, and the notes to be given up, unless the defendants give security.

To this judgment we cannot assent. The provisions in that chapter of the code under which this action was brought, recognise no such right in the buyer, tho’ they do in the seller, if the former refuse to pay the price.— The ground alleged in argument, that this was the sale of a thing belonging to another, does not support the claim to rescission. The sale of the property of another is certainly null, where the parties know at the time of the sale that they are buying and selling that which does not belong to (hem: but where they were ignorant of it, as in this case, the subsequent discovery of the fact only confers the right on the buyer to support, the judgment and de-J _ 1 * J ° _ mand security. The sale here was certainly not null, for the prescription of ten years could have been pleaded on it. The contrary doe-trine would avoid all contracts for land where there was a better title outstanding in a third person, derived from a different grant from the government than that under which the sale was made. See note of Paillette on Nap. code 1599; La. code 2535, 2539.

In directing the vendors in this case to give security, we foresee considerable difficulty: for the syndics cannot do it as the representatives of the estate, without holding up funds (to answer on the warranty) until the minors brought suit. The 2536th article of the code, which directs the money to be brought into court, where the vendors are unable to give security, only contemplates the case where suit is pending by the third party who sets up a claim to the premises. Under the provisions of the code, however, we can give no other judgment.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed; and it is fur* adjudged and decreed, that the of the price of the property mentioned in the petition be suspended until the vendors give good and sufficient security to answer to the plaintiff for any damages he may sustain in case he be evicted of the premises by the minor heirs of Charles West; that the sequestration granted of said notes be maintained until the said security is furnished; that the defendants pay the costs of the court of the first instance, and the plaintiff those of appeal.

Denis for the plaintiff—East is for the defendants.  