
    FLETCHER'S HEIRS vs. CAVELIER ET AL.
    Eastern Dist.
    
      June, 1836.
    lUTEAE FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE .THEREOF PRESIDING.
    Where the plaintiffs recovered three undivided fourths of a tract of land, and were required to pay the defendants the value of the improvements thereon, and if not paid within sixty days, execution to issue: Held, that the plaintiffs were not entitled to exercise the rights and actions of joint owners as soon as the question of title to the larger portion of the undivided property was decided in their favor, and provoke a sale of the whole property, with an adjustment of the improvements and fruits as incidental to the proceeding. But it was held, that in a petitory action the defendants are entitled to be maintained in their possession of the whole until the value of the useful improvements is paid - by the evictors in proportion as they have recovered.
    Defendants who are evicted of part of their land, and entitled to pay for their improvements, are not bound to remain in a state of indivisión with the evictors, and kept in suspense as to their ultimate rights, as well as their recourse in warranty, for -an indefinite period of time. They are entitled to a fixed period when payment and adjustment may be coerced.
    The obligations of the warrantor depend on tho law in force at the time of the sale. According to the provisions of the Old Civil Code, 354, article 57, the seller is bound on the eviction of his vendee, to pay the augmented value of the property above the price of the sale.
    The original price added to the rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested.
    The warrantor is not to be called on to reimburse, until the jhdgment of eviction has had its effect against the party evicted.
    This is a petitory action, in which the plaintiffs succeeded in recovering from the defendants three undivided fourths of two tracts of land adjoining, situated on the bayou Manchac, as having been the property of the late James- Fletcher and wThich had never been legally sold since his death in June, 1804. See 4 Louisiana Reports, 267.
    The cause was remanded to the District Court, to ascertain the value of the respective improvements'of the defendants, and determine the claims of the latter against the respective persons called in warranty by them, and to give judgment accordingly, and that no execution shall issue for the plaintiffs, until they have paid for the value of the improvements respectively.
    On the return of the case, it was submitted to a jury on the evidence adduced by the parties, who returned a verdict as follows.
    
      “We, the jury, find a verdict in favor of the plaintiffs, for tjjree fourths of the amount of the rents and profits of the fond which is three thousand six hundred dollars, from the 27th of July, 1827, to the present time (July, 1834) inclusive.” “We also find a verdict in favor of the defendants for improvements on the land of twenty-two thousand five hundred dollars, being three-fourths of the amount thereof.” “We, the jury, find a verdict in favor of the defendants, against the warrantors-for the three-fourths of the purchase money and three thousand six hundred dollars damages.” “ We, the jury, find three-fourths of the land and improvements to be worth thirty-seven thousand dollars. “We also find the three-fourths of the improvements to be worth twenty-two thousand five hundred dollars.” “ We, the jury, find the crop to be worth four thousand six hundred dollars, at the present time as it now stands.”
    Judgment was rendered on this verdict, in favor of the plaintiffs, for three thousand six hundred dollars, being the fruits and revenues received by the defendants, from the institution of shit (27th of July, 1827) until this date (July 7th, .1834) :'' and in favor of the defendants, against the plaintiffs for twenty-two thousand five hundred dollars, the value of the improvements ; and that the plaintiffs be ordered to pay'this sum,’- after deducting their claim for fruits and revenues,1 within sixty days, and in default thereof, that execution be permitted to issue in favor of the defendants, and that the lands thus recovered be seized and sold to satisfy the same; and that no writ of possession issue until the said sum is fully satisfied.
    Judgment was also rendered in favor of the defendants, (executors of A. Cavelier, senior,) against the plaintiffs, (who are heirs also of Mary Clark, who was heir of Daniel Clark,) in warranty for one thousand eight hundred dollars, being the one-half of the three thousand six hundred dollars, recovered by them; and further, for the sum of eighteen thousand seven hundred and fifty dollars, being the three-fourths of the price of the land paid by A. Cavelier, senior, to Daniel Clark and his representatives, together with the 
      increased value of the land. A like judgment was rendered in favor of A. Cavelier, junior, and J. Devenport, two of the defendants, against Pierre Baron Boisfontaine, also called in warranty. And judgment was rendered in favor of P. B. Boisfontaine, over against the heirs of Mary Clark, (who was the heir of Daniel ClarkJ for the sum of twenty thousand five hundred and fifty-dollars, the amount of the judgment in favor of A. Cavelier, junior, and J. Devenport, against said Boisfontaine. And it was further decreed, that the defendants be permitted to gather their crop, or that the plaintiffs pay its value on taking immediate possession ; and that the defendants pay the costs of suit, they being reimbursed by their warrantors.
    Where the plaintiffs recovered three undivided fourths of a tract of land, and were required to pay to the defendants the value of the improvements thereon, and if not paid within sixty days, execution to issue: Held, that the plaintiffs were not entitled to exercise the rights and actions of joint owners, as soon as the question of title to the larger portion of undivided roperty was decided in their fevor, and provoke a sale of he whole pro-j^rty, with an ^■¡ustment of improve-ents and fruits, incidental to the proceeding 5 hut it was held, that in a petitory action the defendants are entitled to be maintained in their possession of the 'zvJiole, until the value of the useful improvements is paid by the e-victors, in proportion as they have recovered.
    Defendants who are evicted of part of their land, and enti-tied to pay for their improvements, are not bound to remain in a state of in-división with the evietors, and kept in suspense as to their ultimate rights, as well as their recourse in warranty for an indefinite period'of time. They are entitled to a fixed period when payment and adjustment may he coerced.
    
      From this judgment the plaintiffs appealed.
    
      Cuvillier, for the plaintiffs.
    Turner, appointed curator ad hoc and to defend the absent heirs of Clark.
    
      Thomas Gibbs Morgan, for the defendan
    
      Elam, for warrantors.
   Bullard, J.,

delivered the opinion of the

At the August term, 1832, judgment favor of the plaintiffs, for three undivided fou in controversy, but the case was remanded to ascertain the value of the improvements, &c. and it was ordered that no execution should issue for the plaintiffs until they shall have paid the value of the improvements. 4 Louisiana Reports, 266.

On these questions of the value of the improvements and fruits, a jury having pronounced on the second trial and judgment being rendered accordingly, the plaintiffs again appealed after soliciting in vain a new trial in the court below.

A careful examination of the evidence has failed to convince us that the complaints of the appellants are well founded, as to the amounts found by the jury.

The obligations of the war-rantor depend on the law in force at the time of the sale. According to the provisions of the Civil Code, 354, article 57, the seller is bound on the eviction of his vendee, to pay the augmented value of the property, above the price of the sale.

The original price added, to the " rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested.

The warrantor is not to be called on to reimburse, until the judgment of eviction has had its effect against theparty evicted.

But, it is urged, that the court erred in decreeing that an execution might issue against the plaintiffs, if ■within sixty-days the estimated value of the improvements was not paid by them. The argument of the appellants on this point, rests on the hypothesis that the plaintiffs are entitled at once to all the rights and actions of a joint owner, as soon as the question of title to an undivided part was determined in their favor, and that they could require a sale of the whole tract of land and an adjustment of the improvements and fruits as incidental to that proceeding. But it must not be overlooked that this is a petitory action, and the defendants are entitled to be maintained in their possession of the whole, until the value of the useful improvements is paid by the plaintiffs in proportion to the part recovered by them. Nor were the defendants bound to remain in a state of indivisión with the plaintiffs and to be kept in constant suspense as to their ultimate rights, as well as their recourse in warranty, for an indefinite period of time at the discretion of the plaintiffs.

The counsel of the vendors, cited in warranty, complains of the judgment rendered against them in favor of the defendants, on the ground that they are not liable to pay more than three fourths of the price received by them, together with the rents and profits. The obligations of the warrantors depend on the law in force at the time of the sale, and according to the provisions of the Code then in force, the seller was bound on the eviction of his vendee to pay the augmented value of the property, above the price of the sale. Civil Code, page 354, article 57. It is therefore clear that the original price, added to the rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested. It does not appear to us that a greater-amount has been awarded to the defendants, in the event of eviction, than the law would justify. But we are of opinion, that no execution ought to issue against the warrantors until the eviction pronounced by the judgment in favor of the plaintiffs, shall have its effect. It was so ruled by this court in the case of Malancons Heirs vs. Duhamel, 7 Louisiana Reports, 286.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  