On Rehearing — Exceptions.
LAND, J.On the first hearing of- this cause we sustained the exception of no- cause of action filed by the defendants. This exception necessarily admits the truth of the allegations of fact disclosed by the petition, and more especially that the bank and Bodenheimer never had any title to the tract in dispute, and therefore had no ownership to transfer to the plaintiff, and, further, that there is a paramount outstanding legal title in the Hanson Lumber Company, derived through mesne conveyances from the United States. These allegations disclose the sale by the bank and by Bodenheimer of the property of another, against whose claim of title they can urge no legal defenses whatever. Practically the reference of the question of title to the courts in a suit to be brought by the plaintiff against the true owner, or vice versa, would be a vain and useless thing.
*807On the original hearing we followed the dictum, announced in Bonnabel v. First Municipality, 3 La. Ann. 699, that a purchaser who has paid the price can neither demand a restitution of it nor security, even prior to judicial eviction. In that case the prior jurisprudence of the same court on the same subject-matter was not discussed, and it was admitted that the law of France was different. The court held that the question was settled by article 2538 of the Code of 1825, which reads as follows:
“If the purchaser has paid before the disturbance of his possession, he can neither demand a restitution of the price nor security during the suit.”
After citing the article, the court said:
“And he cannot, a fortiori, do so before any disturbance has taken place.”
No attempt was made to reconcile this conclusion with article 2427 of the same Code, declaring, “The sale of a thing belonging to another person is null,” and giving to the purchaser a right of action for damages.
The same court had in 'Hall v. Nevili, 3 La. Ann. 326, affirmed the doctrine of Pepper v. Dunlap, 9 Rob. 289, to the effect that a regular eviction by judicial authority is not required where there is an outstanding title in the United States. The reason assigned for this ruling in that case was that “the sale of another’s property is null and void,” and not merely that the sovereign had not been divested of title. Whether the perfect outstanding title to the property be in the United States, or in the state, or in an individual, can make no difference in principle, as the legal effect is the same quoad the purchaser, who acquires no title from his vendor.
In Robbins v. Martin, 43 La. Ann. 488, 9 South. 108, the court affirmed McDonold v. Vaughan, 14 La. Ann. 727, to the effect that actual eviction is unnecessary “if a perfect title exists in some third person, whereby it is rendered legally certain that his vendor had no title.” In Robbins v. Martin, supra, the outstanding title was “in other persons,” shown by the record to be individuals. In other cases the principle is recognized' that actual eviction is not necessary where there-is an entire failure or want of title shown-on the part of the vendor. Laurans v. Garnier, 10 Rob. 425; Thomas v. Clement, 11 Rob. 401; De St. Rome v. City, 34 La. Ann. 1202. It is well established that there may be an eviction where the purchaser continues to-hold the property, if it be under a title which is not that transferred to him by his vendor, as if he should inherit the property or should acquire it by purchase from the true owner.. Landry v. Garnet, 1 Rob. 363. In such cases the eviction results from the entire want of title in the vendor or the failure of the-title conveyed, and not from the mere purchase or acquisition of the title of the true owner. In Watkins v. Gibbins, 10 La. Ann. 142, it was hefd that the purchase of an outstanding title by the vendee would not avail him to defeat the payment of the purchase price, unless he showed an entire failure of the title derived from the vendor. In Butler v. Watts, 13 La. Ann. 390, the vendor’s pre-emption certificate was canceled by the Land Department subsequent to his alienation of the property, and the court held that such a cancellation was in itself equivalent to an actual eviction, citing Hall v. Nevill, 3 La. Ann. 327. A vendor whenever had any title is in no- better position than a vendor whose pretended title has been canceled.
The Bonnabel Case was practically overruled in Robbins v. Martin, supra, a comparatively recent decision of this court, and is inconsistent with the cases which hold that the entire failure of the title derived from one’s vendor is equivalent to an eviction. A sale by a vendor without title vesta *809no right of ownership in the vendee, and is null as a sale of a thing belonging to another. Civ. Code, art. 2452 (2427). If such a sale be not absolutely void, it is voidable at the option of the vendee at any time before or after its completion. Articles 2557, 2558, 2559, and 2560 refer to disturbances of possession by actions or claims of third persons, and the last declares that:
“If the purchaser has paid before the disturbance of his possession, he can neither demand a restitution of the price nor security during the' suit.”
By its terms article 2560 presupposes a pending suit by a third person against the purchaser in possession. In such case the law makes it the duty of the defendant to notify his vendor, who may be called in warranty. Such a suit involves the issue of title to the property, affords the purchaser an opportunity to call in his vendor and warrantor, and constitutes lis pendens as to the question of. ownership. In such a case It is a reasonable requirement that the purchaser shall not “during the suit” institute a separate action against his vendor for the restitution of the price. The purchaser’s right to call his vendor in warranty affords complete relief in the same action.
Where there is no such suit pending, article 2560 has no application and the purchaser may avail himself of the right of direct action against his vendor conferred by article 2452 (2427).
As we have seen, our state jurisprudence recognizes this right of action, although the purchaser has not been judicially evicted.
Article 2452 (2427) of our Civil Code is a copy of article 1599 of the Code Napoleon. The declaration that “the sale of a thing belonging to another person is null” converted sales into contracts translative of property.
Under the Homan law and the ancient French law the sale of the property of another person was valid, the vendor simply •obliging himself to maintain the purchaser in peaceable possession as owner. Baudry-Laeantinerie, Droit Civil, De La Vente (2d Ed.) § 116. These writers say that in such a case the nullity is relative and solely in the interest of the purchaser, who may avail himself of the right either by exception or by suit, according to circumstances — “par voie d’action, si, ayant deja, payé son prix, il veut en obtenir la restitution.” Id. § 119. In regard to the true' owner, such a sale, whether valid or not, is “res inter alios acta,” and cannot in any manner affect his rights. Id. § 125. The purchaser can maintain this action of nullity without waiting for the true owner to evict him. Id. § 347.
Laurent says:
“La vente de la chose d’autrui etant nulle, l’acheteur a le droit d’en demander la nullité, quand m§me il ne serait pas troublé.” Tome 24, p. 8.
See, also, Marcadé, vol. 6, p. 205.
Duranton, as quoted in defendant’s brief,' reads as follows:
“L’acheteur d’un immeuble, qui peut démontrer' que son vendeur lui a vendu la chose d’autrui,' a le droit de demander l’annulation de contrat avant méme d’étre troublé dans sa jouissance par le veritable maitre de l’immeuble.”
The sale being vicious ab initio, the right of the purchaser to demand its nullity springs at once into existence. The law annexes no conditions to the exercise' of this right. The purchaser, having received nothing for the price paid, has the right to demand its restitution. The vendor, not having complied with his obligation to transfer the ownership, has no equity to retain the price.
The subsequent articles of the Code already cited treat of disturbances of the purchaser by suits or claims of third persons, and lay down certain rules governing the rights of vendor and purchaser in such cases.
The provisions of these articles cannot be applied to the hypothesis of article 2452, without holding that the sale of the property *811of another though prohibited, is valid to the extent of binding the purchaser to take and retain possession until evicted by a judgment of the court at the suit of the true owner. This construction is wholly inadmissible. Article 2452 deals with one hypothesis, and article 2560 with another. The former provides that certain sales shall be null. The latter declares what shall be the legal effect of the disturbance of the purchaser by a suit, and provides that such disturbance shall not authorize the purchaser, who has paid, to demand of his vendors a restitution of the price, nor even security “during the suit.” Article 2557 gives the purchaser, who had not paid the price, the right to ■ suspend its payment until quieted in his possession or until the disturbance is made to cease, unless the seller prefer to give security. It is evident that, under the terms of article 2557, the disturbance or just fear of disturbance per se confers the right on the purchaser to suspend payment unless security is given. Under article 2560 the disturbance per se caused by suit confers no right on the purchaser, who has paid the price, either to restitution or security. In both cases the law is dealing with a threatened eviction, and, regardless of what may be the final result of the litigation, lays down certain rules to govern the rights of purchaser and vendor “during the suit.”
Pothier and other French commentators go to the extent of holding that the purchaser may surrender possession to the true owner, if the title of the latter is legally certain. Pothier maintains that the powerlessness of the purchaser to resist the true owner is tantamount to an eviction. We therefore conclude that the exception of no cause of action was properly overruled.
Defendants also filed separate pleas of prematurity, which were overruled. We assume that this plea, following, as it does, an exception of no cause of action, is bottomed on the failure of the petition to allege an actual eviction. The plea filed by defendant Bodenheimer so reads. The plea filed by the bank does not state wherein the suit was premature, and there is no averment of want of tender of possession prior to the filing of the suit. These pleas were properly overruled.
On the Merits.
The land in dispute is a certain tract of 483 acres of swamp land in township 14, near, but not contiguous to, the Ooteau plantation, which was purchased in 1898 by plaintiff from Philip Bodenheimer. The petition alleges that said tract was purchased and intended to be conveyed, but by clerical error was described as being located in township 13.
The defendant Bodenheimer in his answer admitted the sale as shown by the deed alleged, but denied that there was any clerical error in the description of any of the tracts described in the instrument.
The bank, as defendant and warrantor, admitted the sale to Bodenheimer as shown by deed, but averred that there were clerical errors in the instrument, other than the one alleged in the petition, by which were included certain tracts of land not intended to be sold, and that the lands really intended to be sold were certain subdivisions of sections described in the answer. The answers of both defendants are in effect that the particular tract of swamp land described in the petition was not sold or intended to be sold.
The alleged misdescription as to the number of the township in which the swamp land in dispute is located is conclusively shown by the evidence. The description as given in the deed locates the tract in another parish, and does not accord with the map delivered to the purchaser at the time. The sales of the bank to Bodenheimer and of the *813latter to plaintiff were made on the same day, and contain the same misdescription.
The evidence shows beyond question that the Albert Hanson Lumber Company holds the paramount title, derived by mesne conveyances from the state of Louisiana, and by the state from the United States, under . the .swamp land grants of 1849-50.
The bank purchased at sheriff’s sale made in 1896 in foreclosure proceedings against Ernest and Arthur Prevost, who in January, 1894, purchased from one Leon C. David, who is not shown to have held the land in dispute under any title whatever.
All of the deeds described the property sold, first, as the “Ooteau Plantation,” containing 900 acres more or less, made up of six different tracts of land; and, secondly, a tract of swamp land, containing 483 acres. The last tract is detached from the plantation, being two or more miles distant, and as a matter of fact was virgin forest, which had never been in actual possession of any person.
There is no evidence in the record to show actual possession of either of the two tracts by David or the Prevosts. There is no evidence to show that the detached tract of swamp land was ever considered or used as an appurtenant to the plantation. Moreover, this latter tract was not described in any of the deeds, -which consequently were not translative of the property in dispute quoad third persons. Sentell v. Randolph, 52 La. Ann. 52, 26 South. 797. As between David and the Prevosts, this misdescription cannot be corrected in this proceeding, as he is not a party to this suit. Wé therefore see no possible basis for the contention that the defendants have acquired title by the prescription of 10 years, and are of opinion that the plaintiff is entitled to recover for the partial eviction by him sustained.
The district judge rendered judgment in favor of plaintiff for $15,040.62 on the basis of the average price per acre as shown by the act of sale. Much evidence was adduced pro and eon as to the relative value of the tract in dispute at the date of the sale to plaintiff in 1898, but such evidence was not considered by the trial judge. The question before us is whether as a matter of law the rule adopted by the court a qua is correct.
Article 2514 of the Civil Code declares:
“If in case of eviction from a part of the thing, the sale is not cancelled, the value of the part from which he is evicted is to be reimbursed according to its estimation proportionately to the total price of the sale.”
Under the very terms of this law the value of the part must be estimated, and the recovery had of the proportion which such estimated value bears to the total price. If there be no evidence on the subject, the court may assume that the relative value of the part is not greater than an average of the whole. Quillin v. Yair, 10 La. Ann. 260. The iron-bound rule of average price per acre, or other measurement, contended for by defendants, would, in all cases where the parts differed in value by reason of improvements or other causes, work rank injustice.
The cases of Burrows v. Peirce, 6 La. Ann. 297, and Quillin v. Yair, 10 La. Ann. 260, are not applicable. These eases simply hold that a purchaser of land who has been evicted is not entitled to recover from his warrantor, as damages, the increased value of the land at the time of eviction. The circumstance that in both cases the court allowed the average of the total price, in the absence of all contention and evidence that the relative value of the part was greater, is without significance. In Wood Manufacturing & Creosoting Company v. Davenport, 50 La. Ann. 510, 23 South. 448, the court, in the absence of averment and satisfactory evidence as to the relative value of a portion of a city lot, rendered judgment on the basis of the average of the price. In Robbins v. Martin, 43 *815La. Ann. 488, 9 South. 108, judgment was rendered based on the estimative value of the portion of land from which plaintiff had been evicted, proportionally to the total price as shown by the evidence.
We think; it too plain for argument that the basis of apportionment should be the relative value of the part from which the purchaser has been evicted, when shown by the evidence.
The question of fact involved is, what was the relative value of the tract of swamp land at the date of the sale in 1898? What could it have been sold for in the market? We are of opinion that the decided preponderance of the evidence entitled to consideration fixes its market value somewhere between $5 and $10 per acre. The circumstance that this tract has enormously enhanced in value since 1898 cut no figure. Neither do speculative opinions as to the value of the timber or firewood on the tract to the owner of the plantation. The fact that no owner of the “Coteau Plantation” ever used any timber or firewood from the tract in question shows that its value was purely prospective or speculative.
The land in 1898 was worth what it would bring in the open market. We conclude that an allowance of $7.50 per acre would be liberal in the light of the evidence.
The defendant bank called Ernest Prevost and Arthur Prevost in warranty and obtained judgment over against them jointly; and they have prosecuted a separate appeal. The appeals, however, have been consolidated.
In their pleadings both the bank and the Prevosts deny that the tract in dispute was sold or intended to be sold. There is neither allegation nor proof that David intended to sell this particular land to the Prevosts.
As between the defendants and the plaintiff, the erroneous description is shown by the fact that this traet appears on a map, produced at the time, indicating the tracts intended to be sold. David is no party to the suit, and is entitled to be heard before his deed to the Prevosts can be corrected. The error is not patent on the face of the act of sale.
If the defendant bank, as transferee, represents David, the vendor of the Prevosts, it is bound by David’s obligation of warranty. If David is not represented by the bank, he is a necessary party to a suit to correct or reform the deed executed by him. We therefore are of opinion that the bank should have been nonsuited on its demand in warranty.
It is therefore adjudged and decreed that the judgment .appealed from be amended as follows, to wit: By reducing the respective amounts awarded to the plaintiff and to Philip Bodenheimer on his demand in warranty from $15,040.62 to $3,622.50. And it is further ordered and decreed that the judgment in favor of the People’s Savings, Trust & Banking Company against Ernest Prevost and Arthur Prevost be annulled, avoided, and reversed, and it is now ordered that the demand in warranty of said company be dismissed, at its costs, as in case of nonsuit; and it is finally ordered and decreed that said judgment, as thus amended and reversed in part, be affirmed, plaintiff to pay costs of appeal taken by the defendants, and the banking company to pay the costs of the appeal taken by the Prevosts.