Labauve v. Declouet

Morphy, J.

delivered the opinion of the court.

The plaintiffs sued out an injunction to arrest the execution of an order of seizure and-sale obtained by defendant, in the exercise of his privilege as vendor of a tract of land. After alleging various informalities in the executory proceedings, they aver that the deed of sale on which the order of seizure issued is incomplete and not valid inlaw, because it. does not set forth the number of arpents in front and in depth, intended to be sold, nor the boundaries of the land; that the same have been left in blank so that they (the plaintiffs,) cannot set up any right or title to, any definite price of property; that 'there has been no consent or agreement between them and defendant as to the quantity of land sold, the same not having been mentioned in the sale because it was unknown; that it was the duty of the vendor in order to make a delivery of the thing sold to cause a survey to be made, and the boundaries ascertained, so as to complete; the sale and give them a title to a specific tract of ground; but that he refuses and neglects so to do. They pray that their injunction be made perpetual; that the sale may be cancelled, and that defendant may be decreed to reimburse to them the part of the price already paid, to wit> $1800, with damages ; and in case the sale be not oancelled, *380they pray that defendant he decreed to complete their title to tjje ian¿ ^y. f;mng Up the lfianks in the sale, after causing a survey to be made at his expense, &c. The answer admits that in the notarial sale of defendant to plaintiffs, there was certain blanks left, because the parties did not know at the time the exact distance from the Bayou Teche to a certain line which had previously been agreed upon as the front line of the portion of land thus sold; which blanks were to have been filled at any subsequent time whenever the plaintiffs should require it to he done. It avers that shortly after the execution of the sale, the defendant and plaintiffs by mutual consent and to save the expenses of a regular survey, called on one Mr. Gonsoulin who had in his possession a surveyor’s chain, and got him to run out and mark the front and one side line of said land at the place agreed upon; that the plaintiffs were then and there put in actual possession of the plantation, declared themselves perfectly satisfied with the same, and removed a fence on their ground which they placed on the line as marked out by Gonsoulin: and that ever since they have enjoyed, claimed and possessed the same under and by virtue of said sale. The answer concludes with a prayer, that in case the order of seizure be set aside, judgment may he rendered in solido against the plaintiffs for the balance of the price due to defendant; and should the sale be cancelled, that damages be awarded against the plaintiffs for the waste committed on the property during their possession. The injunction staying the executory proceedings was made perpetual, but the plaintiffs were decreed to pay to defendant the balance due on the price of the land, and the blanks in the authentic sale were decreed to be filled up in conformity with a plat of survey made pursuant to a previous order of the court. The plaintiffs appealed.

On the trial, the defendant offered in evidence a private act of sale of the same property, executed between the same parties a few days before the notarial one, and in which natural objects are mentioned, showing the front line agreed *381upon, and the boundaries of the portion of land sold by defendant in the rear of a tract adjoining that occupied by himself, on the Bayou Teche. It was objected to on the ground that it made no part of the public act, that it was not binding on the parties who annulled it by passing a sale before the parish judge; that it was not signed by all the parties, and that it could not be used to vary, alter or even explain the “ * public act; the judge admitted the paper in evidence, and we think correctly. Testimony to be sure could not have been heard to complete the sale by showing what was the thing sold, but we can see no valid objection to written evidence of , . the kind offered by defendant. Writing is indeed required in relation to the proof of the sale of an immoveable, but nothing renders it absolutely necessary that all the essentials necessary to constitute a sale should be evidenced by the same . . instrument. In the agreement or sale under private signature it is mentioned that an authentic act of sale shall be passed as soon as Mrs. Antoine Mallet shall have obtained her husband’s authorization to- make the contract. By the execution of a J notarial deed before the parish judge, a few days after, the parties never contemplated that it should annul their previous agreement; their object on the contrary, was to confirm it by clothing it with more solemnity, and procuring the authorization of the husband of one of the purchasers who was a married woman. If, in the public act there he any omission, ambiguity or uncertainty, where can the intention of the contracting parties be more properly looked for than in the original agreement which such public act was intended to place among the records of the country? It is true that in the latter act the parties might by consent, haye modified their first contract; in such a case, the last deed would undoubtedly have been the best and exclusive evidence of their agreement; but here there is no contradiction whatever between the two acts. The last one has only omitted to mention the distance from the Bayou Teche at which the division line was to exist between the portion of the land sold to plaintiffs in the rear, *382and the front part of it retained by the vendor; the first writing ¿068 not mentjon this distance neither, but it gives the means by which it can be ascertained. It provides that the front line of the portion sold in the rear shall begin at the corner (nearest to the Bayou,) of an orchard touching Broussard’s land, and 'he drawn so as to strike the corner of the sugar house of the plantation, and be continued straight until it reaches the side line of the adjoining property of the vendor. When the purchasers seek to fly from, their contract, on the ground that there has been no consent or agreement as to what portion of land was sold, we see no good reason why the vendor should not be permitted to invoke this private act.

AVIlGUC tllGVC are ambiguities daries and'cor-"|I2San°[ ¿ troversy between the defendant and vendor^’ and leav" inS blanks in the notarial act of sale, a pri-yfously^execut-ldJiet'ree0n,-<lle ‘"'j11. be receir-ed in evidence to explain and boundaries and fus^not incon-^otariar^ct1 the

*382Leaving out of view the testimony of the parish judge which was improperly admitted as to what was said or agreed to at the time of drawing up the notarial deed, it might readily he inferred from the subsequent acts and conduct of the parties that it was not from any uncertainty or ignorance about the place where the dividing line was to run that blanks were left in the authentic act. Shortly after its execution we find the plaintiffs assisting in an amicable survey of the land, placing their fence on the front line as staked out by themselves and calling on the judge to fill up these blanks. It is not shown that the defendant refused or was ever requested to join plaintiffs in completing the notarial sale. From the wording of this instrument, taken in connection with the private act, and the whole conduct of the parties, it is evident that fearing the natural objects referred to in their original agreement, should disappear and leave the boundary uncertain, the parties thought it more advisable to measure out the distance from the bayou to the point agreed upon, and designate it by such admeasurement. Upon the whole it appears to us that by ordering a regular survey to be made and the blanks in the sale to be filled up in conformity therewith, and decreeing thereupon the plaintiffs to pay the balance of the price, the judge below has satisfied the law and justice of this case.

*383It is therefore decreed that his judgment he affirmed with COStS.