InsiiEY, J.
This is an injunction suit, sued by Charles H. Davis, out of the Second Judicial District Court of the parish of St. Bernard, to stay proceedings via exeeutiva, which B. L. Millaudon was carrying on in the same court, for the collection of a mortgage note, given by Davis in part payment of the price of the Goiron Estate, which is described in the act of sale from B. L. Millaudon to C. L. Davis, as follows: “A certain sugar plantation known by the name of Goiron’s Estate, at about three miles; from the river Mississippi, said parcel or tract of land being and lying on both sides of the said Bayou aux Bceufs, and measuring fifteen hundred and twenty arpents, and being bounded on both sides of the said bayou, on the upper line by land belonging to the estate of Joseph Ramirez, and on the lower line by land belonging to the heirs of Joseph Sanchez” ; besides other property on and thereunto attached, the price of the whole property in block being a fixed one.
This is the second time that this case is presented to the Supreme [104]*104Court for its decision (see 14 An. 868); and as great reliance is placed by Davis on the enunciation by the late Supreme Court, of certain principles, as final on the particular points passed on, and as having on those 'points the force and effect of res judieaia, it becomes necessary to determine now, whether this position be a tenable one.
On examining the decretal part of the judgment on the first appeal, we find that it merely avoids and -reverses the judgment of the lower court, and remands the case for further proceedings, according to law.
In Pepper v. Dunlap, 5 An. 200, it was held “that the reasoning and the opinion o'f a court, upon a subject on the evidence before it, does not have the forcé and effect of the thing adjudged, unless the subject matter be definitely disposed of by the choree of the court.” And Thompson v. Mylne, 4 A. 206, is upon the same point and to the same effect.
Marcadé. vol. 5, p. 386, says:
“ Qúant au point de’ savoir quand il y a res judicata, il est assurément bien simple, quoique controversé. La raison, d’aceord avec les textes et l’autorité de Pothier, dit assez que des la qu’un jugement est prononeé, des la que le point litigieux est jucliciairement décidé, il y a res judicata. Il est clair; au surplus, que la chose jugée n’existe jamais que dans le dispositif clú jugement, non dans ses motifs (qui ne pourraient étre con-sultes a cet égard que pour expliquer le sens d’un dispositif obseur); et seulement clans les parties de ce dispositif qui méritent vraiment ce nom parcequ’elles tr'anchent la contestation, et non clans celles qui ne pré-senteraient'que des énonciations. ”
See also Jackson v. Tiernan, 15 La. 485; Josephine v. Lee, 6 Wheaton, 109.
This court has, therefore, no hesitation in saying that all the matters presented to it in this case, whether arising out of the pleadings or the evidence adduced, remain under its entire control, unshackled by any previous action thereon, when it was examined on the first appeal. The opinions, and obiter dictu of our predecessors, particularly in suits which ■have once been submitted to them, and are again before this court for revision, are entitled to and will always receive due consideration; but, as the late court retained supervisory power over all the questions involved, -so will this court exercise the same power, discreetly, if the ends of justice can be thereby subserved.
The first question, then, is, as to the legal effect of the tender by Millaudon of other lands, to supply the deficiency in the tract sold by him to Davis; and on this point we are constrained to differ from the late court, which, however, only passed on it incidentally, in connection with a motion for a continuance, which had been overruled in the District court. The court, arguendo, on this point held, “that the plea of tender was an admission of the deficiency in the quantity of the land sold, and was inconsistent with the plea of the general issue, and this inconsistency was not avoided by the defendant’s declaration that he did not intend to waive the benefit of the latter plea.
A tender in open court of the thing demanded, or its equivalent, is certainly an admission that the thing itself is. due, and is, consequently, inconsistent until an averment that the thing is not due. It has ever been [105]*105held that the 'plea of payment is inconsistent with á general denial; and a plea of tender cannot be less so.
After the rendition of the judgment remanding the case, Millaudon, by an ex parte proceeding, withdrew his tender, (which he could not do to affect any right Da-vis might have acquired under it,) but which he does not urge. See Boatner v. Scott, 1 Rob. 546; Kohn v. Marsh, 3 R. 48.
We will, therefore, proceed to examine the very important question, whether the qualified tender of other lands, with a concurrent reservation of all legal rights, and the special plea that he, Millaudon, was not legally liable for the deficiency, because the salé to Davis was one per aversionem, precluded him from availing himself afterwards of that defence.
The tender of a thing claimed in a suit, when made in the course of judicial proceedings and in an unqualified and unrestricted manner, carries always with it the presumption which the law attaches' to a judicial confession; but, when such tender is made, not of the tldng elcwmed, Ini of something else, with a special reservation (if the tender is not accepted as made), of all legal rights, and with the special defence that the thing actually claimed is not due, we cannot give to a tender so made the conclusive effect claimed for it by Davis. It was virtually an offer on the part of Millaudon to buy his peace, and to put a stop to litigation. If it amounted to anything at all, as an admission, it did not go to the extent that the thing claimed was due; but simply admitted that there was a deficiency in the measurement of the land sold, but it did not preclude the party from using the defence on which he relied, if his specific offer was not accepted. See Hough v. Vickers, 6 A. 724; Paillet, Manuel de Droit, note 17 to Art. 1356 N. C.; Merlin, verbo Confession, § 3; Brunoman, ad. 1. 28.
The main question is now reached, whether the sale from B. L. Millau-don to Davis was, or was not, one per a/versionem. The description in the notarial act of sale is the Ooiron Ssiate, lying on both sides of the bayou Terre aux Boeuf, between the plantations of José Bamirez and that of the heirs of Sanchez. The length of the lines fronting on the bayou is not given, but the superficial area of the property, amounting to fifteen hundred and twenty-five arpents, is expressed.
The circumstance that gives rise to the controversy now under consideration is, that in the description of the property sold, no rear boundary is defined; but that is an incident so common in the sale of lands lying on the rivers and bayous of this State, the primordial titles to which extend to the ordinary depth of forty arpents, that when in sales or other transfers of lands, so situated, no mention is made of the depth, that depth is always presumed.
It was so held in Carraby v. Desmare, 7 N. S.
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InsiiEY, J.
This is an injunction suit, sued by Charles H. Davis, out of the Second Judicial District Court of the parish of St. Bernard, to stay proceedings via exeeutiva, which B. L. Millaudon was carrying on in the same court, for the collection of a mortgage note, given by Davis in part payment of the price of the Goiron Estate, which is described in the act of sale from B. L. Millaudon to C. L. Davis, as follows: “A certain sugar plantation known by the name of Goiron’s Estate, at about three miles; from the river Mississippi, said parcel or tract of land being and lying on both sides of the said Bayou aux Bceufs, and measuring fifteen hundred and twenty arpents, and being bounded on both sides of the said bayou, on the upper line by land belonging to the estate of Joseph Ramirez, and on the lower line by land belonging to the heirs of Joseph Sanchez” ; besides other property on and thereunto attached, the price of the whole property in block being a fixed one.
This is the second time that this case is presented to the Supreme [104]*104Court for its decision (see 14 An. 868); and as great reliance is placed by Davis on the enunciation by the late Supreme Court, of certain principles, as final on the particular points passed on, and as having on those 'points the force and effect of res judieaia, it becomes necessary to determine now, whether this position be a tenable one.
On examining the decretal part of the judgment on the first appeal, we find that it merely avoids and -reverses the judgment of the lower court, and remands the case for further proceedings, according to law.
In Pepper v. Dunlap, 5 An. 200, it was held “that the reasoning and the opinion o'f a court, upon a subject on the evidence before it, does not have the forcé and effect of the thing adjudged, unless the subject matter be definitely disposed of by the choree of the court.” And Thompson v. Mylne, 4 A. 206, is upon the same point and to the same effect.
Marcadé. vol. 5, p. 386, says:
“ Qúant au point de’ savoir quand il y a res judicata, il est assurément bien simple, quoique controversé. La raison, d’aceord avec les textes et l’autorité de Pothier, dit assez que des la qu’un jugement est prononeé, des la que le point litigieux est jucliciairement décidé, il y a res judicata. Il est clair; au surplus, que la chose jugée n’existe jamais que dans le dispositif clú jugement, non dans ses motifs (qui ne pourraient étre con-sultes a cet égard que pour expliquer le sens d’un dispositif obseur); et seulement clans les parties de ce dispositif qui méritent vraiment ce nom parcequ’elles tr'anchent la contestation, et non clans celles qui ne pré-senteraient'que des énonciations. ”
See also Jackson v. Tiernan, 15 La. 485; Josephine v. Lee, 6 Wheaton, 109.
This court has, therefore, no hesitation in saying that all the matters presented to it in this case, whether arising out of the pleadings or the evidence adduced, remain under its entire control, unshackled by any previous action thereon, when it was examined on the first appeal. The opinions, and obiter dictu of our predecessors, particularly in suits which ■have once been submitted to them, and are again before this court for revision, are entitled to and will always receive due consideration; but, as the late court retained supervisory power over all the questions involved, -so will this court exercise the same power, discreetly, if the ends of justice can be thereby subserved.
The first question, then, is, as to the legal effect of the tender by Millaudon of other lands, to supply the deficiency in the tract sold by him to Davis; and on this point we are constrained to differ from the late court, which, however, only passed on it incidentally, in connection with a motion for a continuance, which had been overruled in the District court. The court, arguendo, on this point held, “that the plea of tender was an admission of the deficiency in the quantity of the land sold, and was inconsistent with the plea of the general issue, and this inconsistency was not avoided by the defendant’s declaration that he did not intend to waive the benefit of the latter plea.
A tender in open court of the thing demanded, or its equivalent, is certainly an admission that the thing itself is. due, and is, consequently, inconsistent until an averment that the thing is not due. It has ever been [105]*105held that the 'plea of payment is inconsistent with á general denial; and a plea of tender cannot be less so.
After the rendition of the judgment remanding the case, Millaudon, by an ex parte proceeding, withdrew his tender, (which he could not do to affect any right Da-vis might have acquired under it,) but which he does not urge. See Boatner v. Scott, 1 Rob. 546; Kohn v. Marsh, 3 R. 48.
We will, therefore, proceed to examine the very important question, whether the qualified tender of other lands, with a concurrent reservation of all legal rights, and the special plea that he, Millaudon, was not legally liable for the deficiency, because the salé to Davis was one per aversionem, precluded him from availing himself afterwards of that defence.
The tender of a thing claimed in a suit, when made in the course of judicial proceedings and in an unqualified and unrestricted manner, carries always with it the presumption which the law attaches' to a judicial confession; but, when such tender is made, not of the tldng elcwmed, Ini of something else, with a special reservation (if the tender is not accepted as made), of all legal rights, and with the special defence that the thing actually claimed is not due, we cannot give to a tender so made the conclusive effect claimed for it by Davis. It was virtually an offer on the part of Millaudon to buy his peace, and to put a stop to litigation. If it amounted to anything at all, as an admission, it did not go to the extent that the thing claimed was due; but simply admitted that there was a deficiency in the measurement of the land sold, but it did not preclude the party from using the defence on which he relied, if his specific offer was not accepted. See Hough v. Vickers, 6 A. 724; Paillet, Manuel de Droit, note 17 to Art. 1356 N. C.; Merlin, verbo Confession, § 3; Brunoman, ad. 1. 28.
The main question is now reached, whether the sale from B. L. Millau-don to Davis was, or was not, one per a/versionem. The description in the notarial act of sale is the Ooiron Ssiate, lying on both sides of the bayou Terre aux Boeuf, between the plantations of José Bamirez and that of the heirs of Sanchez. The length of the lines fronting on the bayou is not given, but the superficial area of the property, amounting to fifteen hundred and twenty-five arpents, is expressed.
The circumstance that gives rise to the controversy now under consideration is, that in the description of the property sold, no rear boundary is defined; but that is an incident so common in the sale of lands lying on the rivers and bayous of this State, the primordial titles to which extend to the ordinary depth of forty arpents, that when in sales or other transfers of lands, so situated, no mention is made of the depth, that depth is always presumed.
It was so held in Carraby v. Desmare, 7 N. S. 664, by Judge Martin, (than whom no one was better acquainted, from long practical experience, with the mode in which rural property so situated was usually described), and he therein says: “In sales of lands on the Mississippi, the tract is sometimes described by the extent of its front and the names of the owners of the tracts above and below. Nothing is said of the owner of the tract in the rear, because, generally, the tract extends to another stream, or to an "uncultivated swamp. In such a sale, the ordinary depth of forty arpents is presumed as that which the vendor pos-[106]*106SSSsed, unless the contrary is shown. Tlic question is one of intention as to depth, in the solution of -which the court is aided by the situation of the land and the price, etc.” The length of the front lines of the Coiron estate was not mentioned in the act of sale; but it can hardly be doubted that, in the sale of such a property, the vendee could have been ignorant of it; and the area being set forth, the depth of the tract could be readily ascertained. Had the lateral lines run parallel to each other on both sides of the bayou, there could have been no deficiency at all. The difficulty is caused by the converging eastern boundary line on the north side of 'the bayou; but, as Davis bought the land with sjjecial reference to that boundary, he must be presumed to have known in what direction it ran. There is, probably, no subject which has given cause more frequently for judicial investigation 'than that arising under Articles 2471 and 850 of the Civil Code. Our Reports teem with examples as to what do and what do not constitute sales per aversionem; and it is therefore not difficult to determine whether the sale of the Coiron estate belongs to that class or not. Among the numerous cases to which our attention has been directed, and which have otherwise fallen under our observation, there are some very similar, if not analogous, in their main features, to that of the Coiron estate; and they were all deemed sales per aversionem.
We give below the descriptions contained in the sales, extracted in each of the following cases:
1. In Brazeale & Sewell v. Bordelon, 16 La. Rep. 335, as follows:
“A certain tract or parcel of laud on which the said Perot and wife reside, situate in the parish of Natchitoches, on both sides of the Red river, containing about two hundred and twenty árpente, bounded above, on both sides of the river, by lands of the purchasers, and below, on the left (of the bayou), by lands belonging to them, and on the right (of the bayou) by land of Antoine Lenoid.”
In Préjean v. Giron et al., 19 La. p. 423, as follows:
One tract of land lying situate in the parish of St. Martin, at Cote Gelée, containing four árpente in front, with the depth that may be about thirty-five or forty árpente, the front of the said tract beginning at the extremity of the land of Pierre Giroir, bounded on the one side by the lands of Baptiste Comeaux, and on the other side by the lands of Madam Clark Beaton.”
In Saulet v. Trépagnier, 2 Rob. 358, as follows:
“ Ce qui compose bien Thabitation mentionnée aux présentes, de dix-sept árpente de face au ñeuve, sur une profondeur, qui sera déterminée par les titees ce qui agreé a Tacquéreur, bornée dans sa partie supérieure par Thabitation Dieudonné, et dans sa partie inférieure par celle de Mme. Yeuve Delhommer.”
In Nicholes v. Adams, 9 A. 117, as follows:
“A tract of land situate in this parish (PointeCoupée), at a place called ‘Village,’‘where the said vendor now resides, containing twenty-six ár-pente front, and bounded above by land of Elijah Adams, and below by land of Marcelin, f. m. c., with a special reservation of four superficial árpente from the upper line, which four acres have been sold by the present vendor to O. E. Hornsby; the tract, object of this sale, containing, pfter the above reservation, eight hundred and fifty superficial árpente, [107]*107more or less. This land fronts on the Mississippi river, as appears by-titles referred to.”
In no one of the oases cited is there any reference -whatever to a rear boundary.
Wherever, as in many of the cases referred to, the tracts sold are of triangular form, with front and lateral boundaries described, or when, as principally in the sale of town lots, all the boundaries are described, they necessarily fall within the class of sales termed per aversionem.
But it will be seen that, in almost every case which were pronounced not sales per aversionem, no boundary whatever, or only one, w"as given.
It was so in Lacour v. Watson, 12 A. 215; Fisk v. Flemming, 15 La. 205; Hall v. Nevil, 3 A. 327; Boyce v. Cage, 7 A. 673; and they were necessarily excluded from that class of sales.
The sale of the Coiron estate was that of a specific thing, for a whole price in block; and, as it was held in Jackson v. Barringer, 15 John. Rep. 353, Davis “must be presumed to have known what land was contained in the expressed boundaries.”
The identical question, as to the character of this sale, has been already solved by the late Supreme Court, in the case of Laurent Millaudon v. Chas. H. Davis, in 14 A. p. 808. In that ease Davis sets up the defence of quanti minoris against L. Millaudon, who was prosecuting his claim, on a mortgage note, bearing on the Coiron estate, the payment of which Davis had assumed, as a part of the price of that property.
From what precedes, and in view of what we deem a fair legal construction of Articles 2471 and 850, C. C., enacted, in all probability, with a special view to the peculiar topography of the country, we conclude that the sale of the Coiron estate was one per aversionem.
Our attention has been called to several bills of exception, spread upon the record; but, as they all relate to the claim of Davis for a diminution of price, which we do not sustain, we do not deem it necessary to pass on them.
The judgment of the District Court must be, therefore, affirmed,
It is ordered, adjudged and decreed, that the judgment of the lower court be affirmed, at the costs of the appellant.