On Rehearing.
BREAUX, C. J.A very earnest application for a rehearing was granted, and a second time the ease was heard at length at bar and in brief of respective counsel.
The first complaint on the rehearing in the order of the defense is, substantially, that there is error in basing the decree on lot 1 (which lot- was drawn by defendant in a partition, the parties to which were Mrs. Jones, O. M. Wells, and the defendant).
The partition in question was made by the defendant and the others just named several years after he had sold the property in contestation to plaintiff’s mother, Mrs. Jeannette Wells. It was also after Thomas H. Allen had conveyed the property to the defendant.
The sale between the defendant and Mrs. Wells, the mortgage given by defendant, and the Allen deed had been recorded in the recorder's office of the parish when the partition was made.
Eefendant urged that, if lot 1 of this partition be taken as the basis for the present *428judgment, there is necessarily an error to his prejudice by reason of the fact that part and not all of the land in the partition was the same as the' land which he had transferred to Mrs. Wells. Some of the land had never been transferred by him to Mrs. Jeannette Wells.
In order so far as possible to avoid complications because of the multifariousness of the facts, it has been deemed proper to take in the first place for foundation of the decree the land described in the sale to Mrs. Jeannette Wells.
It is the same land described in the petition here and claimed in this suit.
In a limited way we adopt a deductive process in arriving at our conclusion, as follows:
There is no dispute as relates to the Hatch Dent land, frequently mentioned in the argument. It measures 700 acres. They must be deducted, as they are not included in the description.
Mrs. Jeannette Wells, a month or two after the sale made to her by defendant of certain lands in the year 1882, sold 200 acres to 0. M. Wells.
It is part of the history of the case that this sale to O. M. Wells was ratified by 'defendant in the year 1888.
The consideration of the sale has been mentioned in the original opinion, and will not be again mentioned.
The contention at this point is that the defendant sold the whole of the Wellswood tract to Mrs. Jeannette Wells, or, at any rate, that by the partition before mentioned defendant became the owner of an entire tract, and that it follows that plaintiff is entitled to the whole of lot 1.
We do not find it possible to agree with that contention, for in our opinion defendant sold to her one-half of- the tract, and not the whole. The one-half stated in the description relates to every part of the whole. The sale was of an undivided half.
The remainder of the paragraph in the description does not change the first portion of the paragraph.
A close reading of the description of the property sold by defendant to Mrs. Jeannette Wells shows that the last figures just stated, to wit, 550 acres, to be the whole measure, refers to all the land sold, taking the description as a whole, and does not specially and exclusively refer to Wellswood plantation. Altogether the defendant sold that number; i. e., the number was in the whole ’ of the property, but cannot be contained in the undivided one-half of present Upper Wells-wood.
But the contention is that we should take the partition made in the year 1884 as the basis.
That contention is not sustained by the pleadings.
Plaintiffs brought suit on the deed of defendant to Mrs. Jeannette Wells. The plaintiffs can gain nothing by the partition, because their rights arose previous to it and were not in any way affected by it.
That -being the case, we must go back to the. original sale in our search for the number of acres sold.
It consisted of the undivided half of Wellswood plantation. That was the interest sold by defendant to Mrs. Jeannette Wells. The record governs, and not the hasty utterances of a witness, the defendant, who disclaims that he intended any other land than that described in the deed, and says that his reference to the land in testifying was the merest oversight — a slip. The facts and circumstances sustain that statement.
Mrs. Jeannette Wells went into possession of the land, as owner under the terms of the deed. She remained in possession, and at her death the undivided half of Wellswood plantation was appraised and included in *430the inventory of her estate as part of her property.
The sale under which Mrs. Wells held has every appearance of a binding contract. It remained unquestioned for many years.
There were, doubtless, equitable or family considerations exerting an influence in allowing the status quo and not disturbing the vendee in her possession. But they, whatever they were, cannot prevail against the binding terms and conditions of the deed in question.
In reference to the asserted resolutory condition:
It is urged on the rehearing that, the price not having been paid, the resolutory condition should be enforced.
The original consideration was $2,500.
It was held heretofore that $1,000 had been paid on account. There is considerable controversy upon the subject of this amount. Heretofore the court decided that it had been properly paid and gave the vendee credit.
We have found no reason to change the decree in this respect. It follows that the resolutory condition cannot be enforced; part of the price having been paid and no offer made to return the amount paid.
Moreover, it does not occur to us that in these proceedings the resolutory condition, as to its enforcement, presents an issue which can possibly be maintained.
Another contention pressed on the rehearing was that the vendee must first elect to accept title subsequently acquired, and that inuring does not take place before acceptance of the title.
It is true that the grantor cannot compel the grantee to take a new title against his will; but the new title, none the less, inures to the grantee, and cannot be used against his will so as to oust the latter from his possession of the property. No title is acquired which can possibly be exercised against the grantee’s will.
It follows that the Allen title, under which defendant claims to own, was not a new title, conferring upon him the right to retain the property; for the heirs of the buyer claimed the benefit of the warranty clause and claimed the subsequently acquired title.
The Louisiana Supreme Court-in repeated decisions decided that the paramount title inures by operation of law. .
It is in place to state that under both systems, the common law and the civil law, direct effect is given to the warranty clause.
Under the French civil law it is -provided that the warranty is bound to permit nothing from which eviction or trouble to the warrantee results. Répertoire du Droit Frangais Carpentier, vol. 23, p. 147.
In the common-law states and in Louisiana the title passes to the warrantee. Am. & Eng. Ency. of Law, vol. 11, p. 418.
This court held in substance in Fenn v. Rils, 9 La. 99, that the debtor does not get rid of an incumbrance on the property who acquires a new title. The title inures to the benefit of the vendee. The character of the previous title or possession is not changed by the adjudication.
From the earliest date of the Louisiana jurisprudence to this date the line of decisions is continuous.
Now as relates to our decree: It is ordered, adjudged, and decreed that it be amended so as to give to plaintiffs the five-eighths of the undivided half of the tract of land therein described, and the five-eighths of $569.08, being the, half of the rent heretofore allowed for each of the years from July 2, 1884, until the surrender to them of said property, with legal interest upon each of said amounts from the expirations of said years respectively, less the sum of five-eighths of $1,000, with interest on said sum *432at 8 per cent, per annum from March 3, 1882, and less five-eighths of $500 with interest on said sum at 8 per cent, per annum from March 3, 1882, and less five-eighths of the sum of $1,184.98, being (the said $1,184.-98) half the amount allowed in our former decree for taxes and keeping dwelling repaired, with legal interest from July 2, 1894.
As relates to the improvements: Each item of improvement allowed is reduced by one-half: One 'four-room cabin, five-eighths of $150; four two-room cabins, five-eighths of $S5 each; three houses on lane, less five-eighths of $62.50 each; four houses around the bend, five-eighths of $75 each; stable and crib, less five-eighths of $250; fence built by him, less five-eighths of $300.
It is further ordered, adjudged, and decreed that the rights of the heirs of the late Mrs. Wm. F. Blackman, under the will of the late Mrs. Jeannette Wells, if any they have, are reserved. With these amendments our former decree is reinstated and made the judgment of the court.
MONROE, J.,adheres to the views expressed in the original opinion, and dissents from this opinion and decree, save in so far as they conform thereto.