delivered the opinion of the court.
The history of this case is a long one, and may be read by the curious in several volumes of our Reports. See 10 Martin, 225. 3 Martin, N. S., 7 and II. 4 Louisiana Reports, 362 and 366. 7 Idem., 286, and 11 Idem., 317. Suffice it to state, for the purpose of the opinion, that Jean Duhamel, •having been finally evicted of three arpents of a tract office arpents of land, which he had purchased from the heirs of Charles Melanin, the cause was remanded for the assessment of his damages against his warrantors. The curator of the estate of Duhamel, who had died before any further proceedings were had in the case, prayed for and obtained leave to dismiss the suit in relation to the prayer for damages, and the judgment, allowing such dismissal, was affirmed by this tribunal, on an appeal brought up by the warrantors.
On the return of the case to the District Court, in 1833, the heirs of Melanin, obtained leave to amend the answer *155by which they had cited in warranty their vendors, the heirs óf Fréme Robechaud. The case was then continued from term to term, until the fall term of 1838, when by leave of ' the court, again granted, the heirs of Melantjon filed an amended answer, claiming damages of their vendors to the amount of twenty thousand dollars. Judgment having been rendered for a portion of the sum claimed, the warrantors appealed.
On remanding a cause for trial, between the warrantor^, the plaintiff, in the demand in warranty, may amend his answer so as to claim -damages from his warrantor. The amended answer does not change the substance of his demand, orlegal the recourse against his warrantors. Under the old C°fvieted y!l1 yot be allowed as (lama— ges, a proportion of theprice of sale, equal to the quantity of land from which he But fn assessing fh™aslie i7not cancelled, he is imbursed e the Zd'paft^acmrding to its estimate at the time of the eviction.*155Our attention has been drawn to a bill of exceptions, to the opinion of the judge a quo, overruling a motion to annul and set aside the order, permitting the heirs of Melantjon to file their amended answer for damages. We think the judge did not err. In suits of this kind, there are as many issues joined as there are successive warrantors called in, and it is customary and convenient, before trying them, to await the decision of the main issue in relation to the tille. The heirs of Melanqon have been very slow and remiss, it is true, in their proceedings, but their warrantors have been equally so, for they could have had the case set down at any time. The original issue, joined between them, was still pending and undecided. The dismissal of Duhamel’s claim for damages could not affect or destroy that of the Melanqon’s against their own vendor, for the price paid or other damages suffered. Their amended answer did not change the substance of their demand or legal recourse against their warrantors; for under their original citation in warranty, they could have obtained, upon sufficient proof, every thing which the law authorizes a vendee, who is evicted, to recover of his vendor. 14 Louisiana Reports, 138; Vascocu's Widow and Heirs vs. Pavie. The amended answer then only sets forth in detail, the damages they expected to prove; of this, the warrantors cannot complain. But we differ with our learned brother as to the measure of damages to be allowed in a case like the present. Theland had been sold by the heirs of Melantjon, in 1819, for six thousand one hundred and seventy dollars. He has allowed them as damages a proportion of this price, equal to the quantity of land of which they have been evicted. We 4 — — find in the old Civil Code, under which the sale to the Melan*156(Jon’s was made, the rule we are bound to follow in assess-• jpg their damages. It provides, article 61, page 357, “if in'; case °f eviction of a part of the thing, the sale is not cancelled, the value of the evicted part is to be re-imbursed to the buyer, according to its estimate at the time of the eviction; and not proportionally to the total price of the sale.” The record contains no evidence of the value of the three arpents r recovered by Broussard in 1824. One witness only speaks of the value of the land ; he appraises it at five hundred dol^ars l^e front arpent, at the time he was testifying, to wit, in 1840.
cowth1" unable^ from the evidence (0 assess the value of the Ees0t<u wnTremand the case for this purpose*It has been pressed upon us, by the counsel, for the heirs of Melangon, that the price they obtained from Duhamel for the' land, in 1819, should be considered as its value, and as giving ’ ,. ,, , , ¿ a ■ a correct measure for the damages they suffered in consequence of the eviction. This we cannot do, for, independant of the positive rule chalked out for us in the law itself, we do not believe that the land was ever worth that price. The estimate of its present value, by a witness well acquainted with the value of lands in this vicinity, shows that if at one time it was as valuable as pretended, it must have been ever since on the decline. The price obtained by the Melamjon’s has always been considered as very high ; and it is now almost a matter of juridical notoriety, that the collusive and fraudulent manoeuvries between Broussard and Duhamel,had only for their object to rid the latter of a very bad bargain. Nay ^as more than once been admitted at the bar, that the land ¡s at present of little or no value: what then were the three * 7 arpents of it worth in 18241 we cannot say. Under such circumstances, we have thought it best to remand the case for a new trial, that, justice might be done between the parties, 1
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that this cause be remanded, to be proceeded in according to law ; the appellees paying costs in this court.