
    W. A. Underwood v. F. Lacapère—L. Rush, P. C. Bourgeois and J. R. White, Warrantors.
    In a sale of a slave mother and her infant child, where it appeared hy the evidence that the child was only sold with the mother on account of its tender age, and added nothing to the value of the mother — Held: That the vendor was not liable in warranty for the value of the child, which his vendee badbecn compelled to pay as warrantor in a subsequent sale of both mother and child.
    Costs follow the judgment, and an exception to the rule cannot be made in the case of a warrantor called in to defend the title of his vendee, and who is decreed not to be liable for the return of any part of the price he had received.
    from the Second District Court of New Orleans, Morgan, J.
    
    
      C. Dufour and Beatty & Bush, for Mrs. Bourgeois, appellant. Johnson t& Denis, for White, appellee.
   Buchanan, J.

The main question presented by this appeal is, whether Mrs. Bourgeois is entitled to any money judgment against her warrantor, White, on account of her slave boy, William, her vendee having been evicted, and having obtained judgment against her for his estimated value at the time she sold him.

When White sold the boy to Mrs. Bourgeois he was an infant but six weeks old, and was sold together with his mother Peggy for the sum of eight hundred dollars. But the evidence shows that the child -was of no appreciable value at that age, aud, instead of enhancing, really diminished the then value of the mother. The inference is, that no part of the eight hundred dollars was paid by Bourgeois for the child, but he was acquired for nothing, being inseparable from his mother, who was sold for eight hundred dollars. Between four and five years afterwards, Bourgeois sold the hoy, William, and his mother, Peggy, for one thousand dollars. At this time, the boy is estimated to have been worth two hundred and fifty dollars, and the mother seven hundred and fifty.

Lacapére, Bourgeois’ vendee, upon being evicted of the boy, was, therefore, entitled to recover of Bourgeois, in warranty, two hundred and fifty dollars, the price which he paid.

But Bourgeois having paid nothing for the boy to White, the author of his title, can recover nothing as his price.

It is true, the vendor whose vendee is evicted, is bound, not only for the restitution of the price, the fruits, &c., recovered by the real owner, and the costs of suit, but also for the damages when the vendee has suffered, if any, besides the price that he has paid. O. 0. 2482. But here no damages are proven. Bourgeois has only had to refund the two hundred and fifty dollars which she received for a boy who cost her nothing. We adhere to the rule established in the case of Burrows v. Peirce, 6th An. 298, that the loss of profits by reason of an accidental increase in value of the property sold, after the sale, is not recoverable by the evicted vendee, in the recourse upon his warrantor. And the fact, that the vendee of a slave has afterwards sold him for a higher price than he gave, does not, upon eviction, authorize him to recover the difference from his vendor, as damages.

The District Judge, therefore, properly ruled that no claim had been established against White, either for a price, or for damages.

Judgment affirmed with costs.

Same Case — On a Re-heaeing.

Buchanan, J.

The institution of two separate petitory actions, at different periods of time, one for the slave woman, Peggy, and one for her child, — the mother and child having previously passed, by several distinct conveyances, for one price in each conveyance, without a separate estimation of the relative value of each, — has produced a complication in the facts, which gives some color to the complaints made by the warrantor, Mrs. Bourgeois, in her petition for re-hearing.

We have, therefore, accorded the re-hearing, and have carefully reconsidered the ease in all its bearings. It results from our researches, that Mrs. Bourgeois having purchased the woman, Peggy, and her infant child from White, for eight hundred dollars, and having, some years thereafter, resold the same woman and child to Lacapére, for one thousand dollars, was sued in warranty for the woman alone, and cited her vendor, White, in warranty in the same suit. Mrs. Bourgeois was condemned, as warrantor, to pay Lacapére seven hundred dollars, but neglected to have judgment entered up, upon her call in warranty.

Perhaps she was unable to do so, White being only in court, in that suit, as an absentee, by a curator ad hoc appointed by the court to represent him. Whatever may have been the reason, the fact is that there was no judgment upon that call in warranty. Subsequently, Mrs. Bourgeois was cited a second time in warranty of Lacapére’s title ; but this time, to the child of Peggy alone, which had not been sued for in the first suit. She cited her vendor, White, to warrant her also in this suit. White was served personally with citation and joined issue. Judgment was rendered against Mrs. Bourgeois in this suit, for two hundred and fifty dollars, the , estimated relative value of the child at the time of the sale from Mrs. Bourgeois to Lacapere ,1 and there was judgment in favor of White upon the call in warranty of Mrs. Bourgeois, the court being’ of opinion, under the evidence, that the child possessed no appreciable value at the time of the conveyance by White to Mrs. Bourgeois. This judgment was affirmed by our decree already pronounced herein. And wo are unable to perceive that we have wronged Mrs. Bourgeois by that decree.

In this suit, nothing was in controversy but the child, although it is true that child constituted one of several objects which had passed by the same conveyance. But it appears from the evidence, that the child added nothing to the value of the other article sold, the mother, at that time. It was necessarily included in the conveyance, however, because the humane provision of our law is imperative, that the slave mother cannot be sold separately from her offspring of tender age.

But it seems from the’statements of the petition for re-hearing, that Mrs. Bourgeois settled her claim against White in the first suit out of court, and received from him for the woman Peggy the same amount, seven hundred dollars, which she had been condemned to pay to Lacapere. Nothing of this appears in the record; but we take the statement of counsel to be correct. If so, it is possible that Mrs. Bourgeois will have a remedy for further indemnity against White. For it is now decided, contradictorily with White, that the whole of the price paid by Bourgeois to White ($800) was for the woman Peggy alone. And it may be argued, that in the first suit, Mrs. Bourgeois could not have recovered more than $700 from White, because she had only been condemned to pay $700. But that now, having been condemned to pay an' additional sum of more than $100, she has an additional claim for the balance of the price by her paid. We throw out these observations without expressing a decided opinion. But we are clear that we cannot give Mrs. Bourgeois relief at this time, and with the proofs before us.

Upon the question of costs, we perceive no more reason to change our previous judgment. Costs follow the judgment and are to be paid by the party cast. C. P. 549 ; Bolton v. Harrod, 10 M. R., 115.

Let our former judgment remain undisturbed.

Yooimnss, J., absent.  