
    SOULE vs. HEERMAN.
    Eiájr1fi83?13’
    April, 1833
    APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OP NEW-ORLEANS.
    The sale, by public auction, of a lot of land, described as a certain and limited body of a given extent, cannot be rescinded for a deficiency in measure of less than one twentieth of the whole lot.
    Such a sale is complete by the adjudication, if the errors of the printed description are disclosed to the purchaser before his final bid.
    This action was brought by the vendor of a lot of land, situated in the city of New-Orleans, sold at public auction, to compel a compliance by the vendee with the terms of the adjudication, or to recover the payment of the purchase money. The defendant admitted the purchase of the lot, but averred he bought under a description in the daily papers of the city, which was erroneous, and therefore he refused to comply with either of the plaintiff’s demands.
    Judgment was rendered in the court below against the defendant, from which he appealed.
    
      L. C. Duncan, for appellant.
    
      I. There is a material difference between the property sold, as advertised by the plaintiff, and that offered to defendant.
    2. The law is with the defendant. Civil Code, art. 2582 to 2586, inclusive. Ibid. 2470. 6 Martin, JY. S. 337, &c. 8lh lb. 658-9 and 60.
    Defendant, in propria persona.
    
   Mathews, J.

delivered the opinion of the court.

This suit is brought to compel the defendant to comply with the conditions of a sale, by auction, of a certain lot of ground and the buildings thereon, situated, (as described in the plaintiff’s petition) or to recover the price for which the property was adjudicated, &c.

The defence set up is, error as to the quantity of ground contained in the lot being less than was advertised for sale, &c. The defendant prayed for a trial by j ury, and the cause was submitted to them, who found a verdict for the plaintiff, and judgment being thereon rendered; he, the defendant, appealed.

The advertisement under which the property was sold, describes it as “ a lot of ground situated in Condé, between St. Philip and Ursuline streets, measuring twenty-eight feet front by one hundred andtwenty in depth,Frenchmeasure,with the buildings thereon, consisting in a brick house, divided into two apartments, kitchen, &c.; the lot, at a certain depth, where the house is built, opens two feet.”

According to this advertisement, it is clear that the lot in question was not sold in relation to adjoining tenements, or from boundary to boundary. The sale was of a certain and limited body, as designated in the advertisement, in which its measure or extent is expressed. In a sale of this nature, a supplement of price, in the event of overplus of measure, cannot be claimed by the seller; neither can the purchaser claim a diminution of price on account of deficiency in ' the measure, unless the real measure falls short by one twentieth part, regard being had to the totality of the object sold. La. Code, art. 2470.

scribed á™a ceri body ofda™ííen rescinded for a sure ofYess than the whole lot,

Such a salo is adjuScationf ‘'¡f printeed°rdescrip! *to nthe0pdurel°aser before bis final tid‘

The evidence in the present case shows, that the advertisement, in the first instance, contained an error of four inches in describing the number of feet front of-the lot; but this seems to have been corrected, and that to the knowledge of the purchaser, before he bid for the property; and consequently this is a matter not to be taken into consideration in the decision of the cause. An attempt was also made in the. court below, to show that he had knowledge, previous to his final bid, of the real situation of the lot in relation to its But as it is proven that the deficiency of quantity does n°t amount to one twentieth part, having regard to the totality of the object sold, it is useless to investigate this part ox the case; believing, as we do, that no grounds are established for a rescission of the sale. Had. the deficiency amounted to more than one twentieth part of the whole object sold, the purchaser would, perhaps, have had no other remedy except a claim for diminution of the price; although, in a case of surplus, the buyer has the option to give the supplement or recede from the contract. La. Code, art. 2472.

It is true, that cases might occur, in which a deficiency of measure in a tract of land, or town lot of ground, of less than one twentieth, might produce a diminution of value in the thing, to a much larger amount than a twentieth part, e. g. when the tract of land is veryextensiveand only a small quantity of it rich and fit for cultivation; or when the deficiency interfered with some passage into the lot. The present case is, however, not shown to be similar to those supposed; and they would, probably, be referable to the first general n the subject of redhibition. La. Code, 2496.

^ *s seen thatwe ha7e considered the sale, in the present instance, as complete by the adjudication, and so it is according to the article 2586 of the La. Code.

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