Plaintiff sues to rescind the sale of certain real estate made to her by the defendant; for the return of the amount paid on account of the purchase price; to cancel the notes representing the unpaid portion of the purchase price; and to recover the amount paid by her for taxes and improvements on the property. Plaintiff alleges, as her cause of action, that there were *Page 423 outstanding interests in said property owned by the Texarkana, Shreveport Natchez Railroad Company, by J.M. Hoss, Jr., and by Mrs. W.H. Elder, an interdict; that she did not intend to purchase an undivided interest in said property; and to the extent of said outstanding titles she has been evicted therefrom.
Defendant answered, denying that the railroad company and J.M. Hoss, Jr., had any interest in the property, and averring that he had acquired the interest of the interdict, which acquisition inured to the benefit of plaintiff. He reconvened to recover the amount due on the unpaid notes of the vendee and for the enforcement of the mortgage against the property.
The court below annulled the deed of sale, ordered the return of the purchase price, gave plaintiff judgment for the amount expended for taxes and improvements, and condemned her to pay defendant for the use and occupancy of the property. Defendant has appealed from the judgment.
The facts of the case are, substantially, as follows, viz.:
James M. Hoss, Sr., was the original owner of the tract of land on which the unincorporated village of Hosston is now situated. On December 8, 1898, he conveyed to the Texarkana, Shreveport Natchez Railroad Company a strip of land 100 feet wide through said property as a right of way, and also an undivided one-half interest in the remaining property. The consideration expressed in the deed was $1 and the enhancement in value of the vendor's adjoining lands by the building of the railroad. The transfer of the undivided one-half interest was conditional upon the construction within 12 months by the railroad company of a station and depot upon said land. Shortly after the railroad track was laid through the village, the company erected a small house for use as a flag station and for *Page 424 receiving and discharging freight. In the year 1901, the Texarkana, Shreveport Natchez Railroad Company sold to the Texas Pacific Railroad Company, and that company, about 1904 or 1905, built a depot and installed an agent.
James M. Hoss, Sr., died in 1899, leaving a widow and four children, three of whom were minors. On November 18, 1899, Mrs. Emma Hoss, the surviving widow, acquired by judgment of adjudication the interest of her minor children. The records do not show that she acquired the interest (an undivided one-eighth) of her major child, John M. Hoss, Jr. On December 15, 1900, Mrs. Hoss and the railroad company platted the village and formally dedicated its streets and alleys. This dedication was duly placed of record.
On October 22, 1908, Mrs. Emma Hoss, as the sole owner, sold blocks 8, 9, and 10 of Hosston to W.H. Adams, who was married at the time to Martha C. Adams. Mrs. Adams died in 1914, leaving, as the issue of the marriage, four children, to wit: Mrs. Ella A. Elder, Mrs. Minnie A. Robinson, Mrs. Wallace A. Collins, and George Adams. On February 26, 1917, W.H. Adams and his said children made a partition in kind of the real estate belonging to the community existing between himself and his deceased wife, by executing deeds to one another of various portions of the property. At the time these transfers were made, Mrs. Ella Adams Elder, one of the children and heirs, was confined in an insane asylum, and though not legally interdicted, was notoriously insane. Her name was signed to the deeds by her husband, W.H. Elder, in the belief that he was authorized to do so, and with the knowledge and consent of the other parties to said instruments.
On October 16, 1917, Mrs. Robinson sold lots 9 and 10 of block 9 to the defendant; and on December 5, 1918, she sold him lots *Page 425 2 and 4 of block 9. On October 16, 1917, defendant acquired from George Adams lots 7 and 8 of block 9, and on September 27, 1918, he purchased from the same party lots 5 and 6 of block 9. As the result of these several purchases, defendant became the owner of lots 3, 4, 5, 6, 7, 8, 9, and 10 of block 9, on which portion of ground he erected a house. On February 18, 1920, he sold the property to plaintiff for $4,000, of which $1,000 was paid in cash, and the balance was represented by three notes of $1,000 each, payable, respectively, on the 1st day of December, 1920, 1921, and 1922. Shortly after her purchase, plaintiff took possession of the property and was actually occupying it at the time the present suit was instituted.
Plaintiff paid $1,500 on account of her notes, leaving $1,500 due and unpaid. In January, 1923, being desirous of making a loan to be secured by mortgage on the property, she obtained from defendant an abstract of title, on the examination of which, she learned, for the first time, as she had purchased, apparently, without such examination, that the title was defective. She was informed by defendant when he delivered the abstract that the "title was a little cloudy," but that he would "go to court to have it corrected." Plaintiff was not satisfied with this and instituted suit for a rescission of the sale. The suit was dismissed as in case of nonsuit. In the meantime defendant employed attorneys to perfect the title. On March 3, 1923, a suit was filed for the interdiction of Mrs. Elder. Judgment of interdiction was rendered on April 4, 1923. On April 11, 1922, her sisters and brother sued her for a partition in kind of the property attempted to be partitioned by their father, W.H. Adams. On the same day the present suit was filed. On April 23, 1923, judgment was rendered by the same district judge who decided the instant suit in plaintiff's favor, authorizing the curator *Page 426 of the interdict to approve and ratify the partition in kind attempted to be made by W.H. Adams and his children in 1917, and to execute the necessary deeds on behalf of the interdict to carry the partition into effect, which was done. On May 2, 1923, defendant answered this suit. On June 2, 1923, after the evidence was in, but before argument, he filed an exception of no right or cause of action.
Defendant contends that, as the plaintiff is in the undisturbed possession and enjoyment of the property, she is without right to maintain any action to set aside the sale on the ground that his title is defective.
Under our law, unlike the Roman law and the ancient French law, the contract of sale is a direct and immediate transfer of the property sold. Hale v. New Orleans, 18 La. Ann. 324; Bonvillain v. Bodenheimer, 117 La. 809, 42 So. 273. The obligation is upon the seller of warranting the buyer against eviction from the thing sold. Civ. Code, art. 2501. And "eviction" is defined as:
"The loss suffered by the buyer of the totality of the thing sold, or a part thereof, occasioned by the right or claims of a third person." Civ. Code, art.2500.
"A sale by a vendor without title vests no right of ownership in the vendee, and is null as a sale of a thing belonging to another. Civ. Code, art. 2452 (2427)." Bonvillain v. Bodenheimer, referred to supra, pages 808, 809 (42 So. 278).
In Pepper v. Dunlap, 9 Rob. 289, and Hall v. Nevill, 3 La. Ann. 326, the principle was recognized that actual eviction is not necessary where there is an outstanding title in a person other than the vendor. It was held in McDonold v. Vaughan, 14 La. Ann. 717, that a purchaser is justified in resorting to the rescissory action in a case where no active disturbance is shown; it being sufficient for him to establish the loss of the whole or a part of the thing sold. This case was affirmed in Robbins v. Martin, 43 La. Ann. 488, 9 So. 108. There the outstanding title *Page 427 existed in other persons than plaintiff's vendor. In Bonvillain v. Bodenheimer, referred to supra, this court reviewed the codal articles and jurisprudence on the subject, and held that the sale of a thing belonging to another person is null; that the purchaser incurs no obligation to pay the price, and may sue to annul the sale and recover the price paid at any time, though he may not have been actually evicted or disturbed in his possession by the true owner.
In the light of this jurisprudence we must consider the true doctrine of the law to be that a purchaser is entitled to the rescissory action against his vendor, although he has not been actually or judicially evicted, where there is a failure or want of title in the vendor to the whole or to a part of the thing sold.
At the time of the sale to the plaintiff, the records disclosed the following outstanding titles in the property, viz.:
(1) An undivided one-half interest in the Texarkana, Shreveport Natchez Railroad Company.
(2) An undivided one-eighth interest in J.M. Hoss, Jr.
(3) An undivided one-eighth interest in Mrs. Ella A. Elder.
Defendant contends that the title of the railroad company has been lost or forfeited by reason of its failure to build a depot within the time stipulated in its contract with J.M. Hoss, Sr. This may be true, although plaintiff argues that the stipulations of the deed were fully complied with; nevertheless, we fail to see how we can effectively pass upon that issue, even if it were pertinent, since the railroad company has not been made a party to this suit.
Defendant contends, further, that J.M. Hoss, Jr., was without interest in the property because, under date of May 3, 1923, he executed a notarial acknowledgment and quitclaim in favor of plaintiff. He also claims *Page 428 that, by reason of the interdiction and partition proceedings, the interest of Mrs. Elder in the property has been divested to the advantage and benefit of the plaintiff.
Plaintiff, on his part, attacks the validity of the instrument executed by J.M. Hoss, Jr., and the legality of the proceedings concerning Mrs. Elder.
We find it unnecessary to pass upon the contentions of the respective litigants in regard to the title of the railroad company, the so-called conveyance of interest by J.M. Hoss, Jr., and the interdiction and partition proceedings affecting Mrs. Elder, for it cannot be denied that, according to the records each of these parties had an interest in the property at the time defendant sold it to the plaintiff. Defendant's title was imperfect. To the extent of the outstanding interests he was powerless to transfer ownership, and therefore he sold a thing that belonged to others. Such a sale, if not absolutely void, is voidable at the option of the vendee at any time before or after its completion. Bonvillain v. Bodenheimer, supra, page 809 (42 So. 273). Nor do we think that plaintiff's right to maintain his rescissory action was adversely affected by the proceedings taken for the purpose of quieting his title and possession. Granting that the instrument signed by J.M. Hoss, Jr., was valid, and that the proceedings concerning the interdict were legal, they could not inure to the benefit of plaintiff, unless she had manifested her intention of accepting said benefit. It was optional with her to refuse to accept the so-called ratifications of the title. The rescissory action manifested the refusal on her part, and this action was instituted before any steps were taken to perfect the title. See Hale v. City of New Orleans, supra, pages 325, 326; Brewer v. N.O. Land Co., 154 La. 450, 97 So. 605. Moreover, no attempt was made by the defendant to secure the cancellation from the records of the outstanding *Page 429 title in the Texarkana, Shreveport Natchez Railroad Company, or its successor, the Texas Pacific Railroad Company.
Defendant has not offered to give security for the validity of the title, so that we are not called upon to determine the applicability, vel non, of Civ. Code, art. 2557.
For the reasons assigned, the judgment appealed from is affirmed, at appellant's cost.
O'NIELL, C.J., concurs in the decree.
ST. PAUL, J., concurs in the decree.
On Rehearing.