Snoddy v. Brashear

3 La. Ann. 569

• Court: Supreme Court of Louisiana
• Decided: September 15, 1848
• Status: Published

Opinions

The following opinion of the court Waff pronounced, on the first hearing of the case, by

Rost, J.

The plaintiff sues for the rescisión of a sale of land made by her to the defendant, C. D. Brashear, on the ground of lesion beyond moiety. The petition alleges that Eliza, the wife of C. !>■ Brashear, has now the legal title, having purchased the laud át a sheriff’s sale made of it as the property of her husband. Judgment is asked against both the defendants. They filed a general denial, and C. D. Brashear set up -other grounds of defence, which it is not necessary to notice. There was judgment in favor of the plaintiff in the first instance, and the defendants appealed.

The counsel for the defendant, Eliza E. Brashear, has made the point that, under the provisions of the Civil Code, the action of rescisión on account of lesiou beyond moiety, is personal to the original vendee, and cannot be main» tained against a subsequent purchaser in good faith. -

Elgee, for the plaintiff, for a re-hearing.

The court maintains, as the basis of its opinion, that the action for rescisión on account of lesion is a persona! action, and restricted to the first purchaser. It admits that the question was much controverted amongst the civilians, and concedes that the “ common opinion” was favorable to its being considered as a real action. Voet and Fachinceus are stated to have entertained a contrary opinion.

It was a controverted point among civilians, whether, under the roman law, this action reached bond fide third possessors. Voet and Fachinoeus, two of the ablest of them, were of the opinion that it did not, and that it was purely personal to the first vendee. This was not, however, the common opinion. See TroploDg, De la Vente, no. 801, and the authorities there cited.

In France, before the adoption of the Napoleon Code, the action of rescisión was allowed against third possessors, and the concluding part of article 1681 of that body of laws implies its maintainance under the new system. The dispositions of our Code on the subject of lesion beyond moiety are taken from the Napoléon Code, and article 1681 of that Code is substantially the same as article 1871 of ours, with the remarkable difference that the provision in relation to third possessors has been entirely omitted. This omission was not unintentional; and, in our opinion, justifies the belief that the legislature intended to restrict the action to the party to the contract which gives rise to it. The action thus limited, is analogous to that which the vendor of moveable effects has to enforce a privilege upon them for the price, so long as they remain in the possession of the vendee.

In the case of Bradford’s heirs v. Brown, 11 Mart. 217, the former Supreme Court held the action to be personal to the first vendee ; and, in default of any provision of law upon which the liability of subsequent purchasers can be based, that case appears to us a correct application of the rule that, the title of an honest purchaser is not affected by the latent equities existing between the previous holders of the property, purchased.

We cannot distinguish this case from that of Richardson v. Hyans, 1 Ann. Rep. 287. In that case there was a declaration of Winn, on the public records of the country, acknowledging an unencumbered title in Friend, to lands purchased by Winn from the United States. After the land had passed into the possession of third persons, we held Winn bound by his declaration, although it was shown to have been made without consideration. The only difference between the two cases, is, that the present plaintiff received nearly one half the value of the land sold by her, while Winn received nothing whatever for the transfer he made. This difference cannot surely affect the principle of the decision, or modify it in favor of the plaintiff’s claim. See 9 La. 290. 11 La. p. 408.

The plaintiff alleges the legal title to be in Eliza E. Brashear; she contests neither her capacity nor her good faith. 'Eliza E. Brashear is to all legal intents a third possessor; her husband was the master of the community ; the property in controversy was sold as his own to pay debts, which he was, under all circumstances, bound to pay; his wife had no title to it before her purchase, and could not, therefore, have been affected by latent equities existing between the plaintiff and her husband.