As stated in our original opinion, defendant sold to plaintiff on February 18, 1920, lots 3, 4, 5, 6, 7, 8, 9, and 10 of block 9 in Hosston, La., on which defendant had erected a house.
The consideration of this sale was the price of $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.
Plaintiff took possession of the property, and paid $1,500 on account of her notes, leaving $1,500 due and unpaid. Plaintiff purchased, apparently, without examination of title, and, having subsequently discovered that defendant's title was defective, instituted the present suit to rescind the sale and to recover the amount of the purchase price paid by her to defendant, to wit, $2,500, with interest from date of payment.
Plaintiff was in undisturbed possession of the property at the date of the institution of this suit for the rescission of the sale and the recovery of the purchase price paid. Plaintiff contends that the following outstanding titles appear against the property: (1) An undivided one-half interest in the Texarkana, Shreveport Natchez Railroad Company. (2) An undivided one-fourth of one-half interest in J.M. Hoss, Jr. (3) An *Page 430 undivided one-fourth of one-half interest in Mrs. Ella Adams Elder. Plaintiff's position is that these are valid, outstanding titles; that defendant has sold to her the property of third persons, and the sale is therefore null and void under article2452 of the Civil Code; that she has been legally evicted because of these outstanding titles, and is entitled to sue for the rescission of the sale and the return of the purchase price, although she has not been disturbed in her possession by suit on the part of any of these claimants.
It is true that actual eviction is not necessary, "if a perfect title exists in some third person, whereby it is rendered legally certain that his vendor had no title." Robbins v. Martin, 43 La. Ann. 488, 9 So. 108; McDonold v. Vaughan, 14 La. Ann. 716; Laurans v. Garnier, 10 Rob. 425; Thomas v. Clement, 11 Rob. 402; De St. Romes v. City, 34 La. Ann. 1201; Bonvillain v. Bodenheimer, 117 La. 807, 808, 42 So. 273; Kuhn v. Breard,151 La. 546, 92 So. 52.
But we fail to find any perfect, outstanding title in any of the third persons mentioned in this case. The railroad company has only a title conditioned upon the building of a depot. Upon its face the deed does not convey the property directly and immediately, but its transfer depends upon the performance of the condition, and, in default of compliance, it is stipulated in the deed from J.M. Hoss to the railroad company that the property shall revert to him.
J.M. Hoss, Jr., has executed to plaintiff a quitclaim deed as to his interest in the property, and has acknowledged in the deed, which has been recorded, the receipt from his mother, as surviving widow in community of J.M. Hoss, deceased, of his proportionate share of the purchase price. Under these circumstances, J.M. Hoss, Jr., and his heirs and assigns, would be estopped from denying plaintiff's title, thereby precluding the possibility of eviction. *Page 431
It is true that the partition made on February 26, 1917, between Wm. H. Adams, widower, and the heirs of his deceased wife, appears to be defective, as Mrs. Ella Adams Elder, one of the heirs, and who was insane at the time, was not a party to the proceeding, except through the signature of her name by her husband. This defect, however, has been cured by judgment and order of the district court of Caddo parish, under which the duly appointed and qualified curator of the interdict has conveyed her interest to her coheirs, the vendors and warrantors of defendant, and has expressly ratified the partition previously made on February 26, 1917. While as between the coheirs and the defendant, their vendee, the acquisition of the interest of the interdict inures to the benefit of the defendant, this fact does not appear upon the face of the recorded deeds conveying this interest to the coheirs, and eviction of plaintiff might be possible, in event of sale by the coheirs of the interest acquired from the interdict to a third person.
Plaintiff has been in quiet possession of the property since February 18, 1920, and defendant erected a house thereon the latter part of the year 1916.
The danger of eviction is remote, in our opinion, under all of the circumstances of the case.
As said in Kuhn v. Breard, 151 La. 552, 92 So. 52, 54:
"We imagine that no case can be found in our jurisprudence which sustains the proposition that a sale can be annulled or rescinded * * * on the mere allegation and proof of a possible title in some one other than the plaintiffs' vendor."
The title of the railroad company evidences upon its face a mere possible title, and not an outstanding, perfect title in some third person.
It is possible that the coheirs of Mrs. Ella Adams Elder, the interdict, may transfer to a third person the one-eighth interest *Page 432 acquired by them from her, but it is not at all probable that they will do so, as they are the vendors and warrantors of the defendant, who sold this property to the plaintiff. Plaintiff's case does not fall, therefore, within the purview of article 2452 of the Civil Code as to the sale of a thing belonging to another.
It is provided in article 2557 of the Civil Code that —
"If the buyer is disquieted in his possession, or has just reason to fear that he shall be disquieted by an action of mortgage, or by any other claim, he may suspend the payment of the price until the seller has restored him to quiet possession, or caused the disturbance to cease, unless the seller prefer to give security."
As is said in Rousseau v. Tête, 6 Rob. 472:
"The Civil Code nowhere recognizes in the buyer the right of having the sale avoided on account of defects in his title; but provides (article 2535 [2557]) that if the buyer be disquieted in his possession, or has just reason to fear that he will be disquieted, he may suspend the payment of the price, until the seller has restored him to quiet possession, unless the seller prefer to give security. A defective title which does not vest in the buyer a legal right to the property may well create in his mind a just reason to fear being disquieted, and authorize him to suspend the payment of the price until the seller gives him proper security; but it is no good ground on which to rest a claim for rescission. Smith v. Roberts, 12 Mart. (O.S.) 433; Herriman v. Mulhollan, 1 Mart. (N.S.) 605; Wrinkle v. Tyler, 3 Mart. (N.S.) 111; Denis v. Clague's Syndics, 7 Mart. (N.S.) 95."
It is also stated in Rousseau v. Tête, above cited, that —
"It is true that in the case of Pontchartrain Railroad Co. v. Durel, 6 La. 484, this court held that, when the vendor sells property at public auction without title to a portion of it, the vendee, to whom the adjudication is made, cannot be required to complete the sale and accept security, as the buyer is entitled to have all and every part of what he bought; but this decision was based on the ground that article 2535 [2557] of the Civil Code, which only authorizes the vendee, fearful of eviction, to withhold the price until he receives security, applies to a buyer in possession who *Page 433 has accepted the sale, and not to one who discovers before he accepts a deed or possession that the vendor sold him what belonged to another.
"But where, as in this case, the purchaser has been in possession for more than two years, under a title which, however defective, he thought proper to accept, and under which he may never be disturbed, he has, in our opinion, no claim to rescission, and can only ask to be protected or secured against a possible eviction at a future time." Page 473.
The above decision is on all fours with the case at bar.
The jurisprudence as to the issue here involved was reviewed in Bonvillain v. Bodenheimer, 117 La. 793, 42 So. 273. It appeared in that case that the defendant never had any title at all to the tract in dispute, and therefore had no ownership to transfer to the plaintiff, and, further, that there was a paramount, outstanding, legal title to the entire property in the Hanson Lumber Company. The court correctly held in the Bonvillain Case that it was a sale by defendant to plaintiff of a thing belonging to another person and was null, and that in such a case 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.
The decision in the Bonvillain Case has also been approved by this court in Kuhn v. Breard, 151 La. 546, 92 So. 52, in which the proper distinction is made between outstanding, perfect titles, and mere possible and defective titles. The case of Rousseau v. Tête. 6 Rob. 471, cited in this opinion, is also quoted with approval in the more recent case of Kuhn v. Breard.
The plaintiff cannot have the sale rescinded in this case, but is entitled to demand from defendant security according to law against possible eviction.
While defendant should recover the unpaid *Page 434 portion of the purchase price, with attorney's fees, on his reconventional demand, bond with good and solvent sureties must be exacted of him, with stay of execution of the judgment in his favor, until such bond and security in favor of plaintiff has been duly executed and delivered to her by defendant. C.C. art. 2557; Jennings-Heywood Oil Syndicate v. Home Oil D. Co.,113 La. 386, 37 So. 1.
As plaintiff cannot demand a rescission of the sale, she is not entitled to the return of the entire price. It follows, therefore, that security ought to be given by defendant for one-half of the purchase price of $4,000, if plaintiff, or her heirs, or assigns are evicted by the railroad company as to one-half interest in the property, and that additional security should be given by defendant in the sum of $500 to protect plaintiff, her heirs, and assigns against possible eviction as to the one-eighth interest of the interdict, Mrs. Ella Adams Elder, conveyed by her through her curator to her coheirs.
It is true that neither party has asked in the pleadings that this disposition of the case be made. However, it is well settled that such disposition may be made. Jennings-Heywood Oil Syndicate v. Home Oil D. Co., 113 La. 386, 37 So. 1; Smith v. Corcoran,7 La. 50; Carson v. Dwight, 5 Rob. 484; McDonold v. Vaughan, 14 La. Ann. 716.
There was judgment in the lower court in favor of plaintiff, annulling and setting aside the deed from defendant to plaintiff, and restoring to plaintiff the purchase price paid by her to defendant.
The judgment also awarded to plaintiff the sum of $212.85 for taxes and improvements placed on the property, and annulled and canceled the two mortgage notes upon which defendant has sued in reconvention in this case.
There was also judgment in favor of defendant in the full sum of $15 per month *Page 435 rental on said property beginning February 18, 1920, based upon an alternative demand of defendant, in the event of the rescission of the sale.
In our opinion this judgment is erroneous.
It is therefore ordered that our former decree, affirming the judgment of the lower court, be set aside. It is now ordered that the judgment appealed from be reversed and annulled.
It is further ordered that there be judgment in favor of defendant on his reconventional demand and against plaintiff in the full sum of $2,000, with 8 per cent. per annum interest on said amount from February 16, 1920, until paid, and 10 per cent. additional as attorney's fees, subject to a credit of $500, paid on March 13, 1922, with full recognition of defendant's special mortgage and vendor's lien and privilege on lots 3, 4, 5, 6, 7, 8, 9, and 10 of block 9, in the town site of Hosston, La., less one plot of land 40'x50' off the south end of lot 7 of block 9, in the town site of Hosston, as more clearly shown by warranty deed recorded in Conveyance Book 143, p. 325, of the recorder's office of Caddo parish, La.
It is further ordered that said property be sold by the sheriff of Caddo parish, La., after due advertisement, without appraisement, at public auction, and for cash to pay and satisfy this judgment, and that defendant be paid out of the proceeds of such sale the amount of this judgment, in principal, interest, attorney's fees, and cost, by preference and priority over all other persons. It is further ordered that defendant execute bond with good and solvent sureties in favor of plaintiff, her heirs, and assigns in the sum of $2,000, conditioned that defendant shall pay to plaintiff, her heirs, or assigns said sum, in the event that plaintiff, her heirs, or *Page 436 assigns are evicted by the Texarkana, Shreveport Natchez Railroad Company, or its successors or assigns, as to one-half interest in the property herein described, purchased by said railroad company from J.M. Hoss December 8, 1898; and conditioned also that defendant shall pay to plaintiff, her heirs, or assigns the additional sum of $500, in the event that plaintiff, her heirs or assigns are evicted as to one-eighth interest in said property owned by the interdict, Mrs. Ella Adams Elder, and conveyed by her, through her curator, April 23, 1923, to her coheirs, under judgment and order of the First judicial district court for the parish of Caddo, state of Louisiana.
It is further ordered that the execution of the judgment rendered herein in favor of defendant on his reconventional demand be stayed, until the bond which defendant has been ordered herein to execute and deliver to plaintiff shall have been so executed and delivered to her by defendant.
It is further ordered that plaintiff's demand for the rescission of the sale in this case and the return of the purchase price be rejected, at her cost in both courts.
The right is reserved to plaintiff to apply for a rehearing.
ROGERS, J., dissents, adhering to the views expressed in the original opinion.
On Application for Further Rehearing.