
    Napoleon B. Riddle, Curator, v. Catharine Kreinbiehl, &c.
    When there has been no fraud on the part of the vendor, and no proof that he had any knowledge of the existence of a redhibitory vice in the slave sold, the redhibitory action is prescribed in one year from the sale.
    In an action to recover a part of the price unpaid, the vendor may set up the redhibitory vice as matter of defence, although more than a year has elapsed since the sale. He cannot, however, by a reconventional demand, after the lapse of one year, recover back the part of the price which has been paid.
    APPEAL from the District Court of West Feliciana, Waterston, Judge of the Eighth District, presiding. Tried by a Jury.
    
      Brewer & Collins and Powell, for plaintiff and appellant.
    
      H. C. Hudson, for defendant.
   Lea, J.

The plaintiff, in the capacity of curator of the estate of Rielwrd H. Cadle, sues for the unpaid balance due upon the price of a slave adjudicated to the defendant, Catharine Krienhiehl, at a public sale of the property belonging to the succession of Richcwd H. Cadle. The defendant resists payment on the ground that at the time of the sale the slave “was afflicted with a redhibitory malady of many years standing,” one not easily detected by a person not accustomed to deal in slaves and unskilled in medical science.

The defendant claims in reconvention the cancellation of the sale, the restitution of the money already paid as part of the price of the slave, and the reimbursement of expenses and losses incident to her sickness, such as loss of time, nursing, hoard, physicians’ bills, medicines, &c.

Against the reconventional demand the plaintiff has entered the plea of the prescription of one year. The sale of the slave was made on the 8th of February, 1854, and the suit was not instituted until the loth March, 1855. Nothing in the evidence establishes fraud in the vendor, or that the vendor had any knowledge of the existence of the alleged redhibitory vice, and neglected to apprise the purchaser of the fact.

The claim upon the reconventional demand, therefore, comes clearly within the application of Article 2512 of the Civil Code, so far as the defendant seeks to recover any part of the price already paid or damages incident to the sickness of the slave. The Article expressly provides that the redhibitory action must be instituted within a year at the farthest, commencing from the date of the sale. So far, however, as the defendant seeks to resist the payment of the unpaid balance due upon the price, she may invoke the doctrine “qum temporalia,” &c. Though the redhibitory action is barred by the lapse of time, yet she may invoke as matter of defence any facts which would sustain a redhibitory action.

Upon the question of fact, as put at issue, in the pleadings, although the testimony is not as conclusive as could be desired in a case of this kind, yet we are reluctant to disturb the verdict of a jury upon a question of fact sanctioned, as it apparently has been, by the concurring opinion of the District Judge.

It is ordered, that the judgment appealed from be reversed, and proceeding to render such judgment as in our opinion should have been rendered, it is ordered, that upon the plaintiff’s claim there be judgment for the defendant, and that upon the claim in reconvention, for the restitution of the money paid by the defendant as part of the price of the slave and for damages, as set forth in the answer and supplemental answer, it is ordered that there be judgment in favor of the plaintiff, K B. Biddle, curator; it is further ordered, that the plaintiff pay the costs in the District Court, and that the defendant pay the costs of this appeal.  