(dissenting). February 24, 1909, A. H. Leonard and wife, and Clarence Ellerbie, being the owners of certain lands in the parish of Caddo consisting of some 5,000 acres, gave to the Busch-Everett Company a mineral lease thereon, which under the decision of this court in the case of Chadwick v. Standard Oil Co. (No. 22667) 147 La. 668, 85 South. 633, permitted the lessee, for a period of six years, to explore for oil and gas upon the payment of a certain yearly rental. On its face, therefore, the said lease was to expire on February 24, 1915, if the lessee failed, within that time, to exercise the privileges conveyed.
' On December 9, 1912, the said lessors sold to the defendant F. F. Webb .some 580 acres of this same tract of land known as the “Sandy Beach” idantation, for the sum of $29,400. No reference whatever to the former mineral lease to the Busch-Everett Company was made in the sale to Webb.
' On August 26 and 29, 1913, Leonard filed suits against the Busch-Everett Company to annul" the mineral lease given prior to the sale to Webb, upon certain grounds, which terminated adversely to Leonard. When that litigation' became final in this court on October 16, 1916, the lease, on its face, had expired by a period of nearly 20 months;, but, in view of the fact that Leonard had, by his suit to annul, put himself in default on his obligations as lessor, we held that he could not be heard to assert such expiration, aiid decreed! -that- the lessee should have a reasonable time after- the finality of our judgment in which to exercise its rights.
■ March 13, 1915, more than six years after the giving of the lease by Leonard and others (February 24, 1909), and while the suit of Leonard v. Busch-Everett Co., 139 La. 1099, 72 South. 749, was pending in this court, Webb gave to the plaintiff in the present case, Standard Oil Company of Louisiana, a minerallease upon that portion of the land which he had acquired from Leonard and others on December 9, 1912, and for which he was paid $1,800 cash, and was to receive thereafter rentals at the rate of $450 per year, for five years or until drilling actually commenced. The Standard Oil Company thereafter made two of these annual payments to Webb, amounting to $900, and making a total of $2,700.
Plaintiff brings this suit to recover from Webb the sum paid as above outlined, upon the theory that the lease from Leonard to the Busch-Everett Company, given on March 18,-1915, was still in force when plaintiff’s lease was given and for this reason the lessee in the latter instance acquired nothing for the money so paid.
There was judgment for plaintiff in the court below for the full amount, and defend-. ant appeals.
The sole question in the case is as to whether or not Webb, who purchased a part of the land from Leonard after the lease to the Busch-Everett Company (hereinafter referred to' as the Busch-Everett lease) was; given, was bound or his said land affected by-the extension of time beyond the stipulated term, allowed defendant within which to explore for oil and gas by the decree of this 'court in the case of Leonard v. Busch-Everett Company.
I find that both in the brief of counsel for-plaintiff and- in the opinion of the. lower-court, it-is stated that the sale by Leonard to Webb was made after the suit of Leonard v. -Busch-Everett Company was filed- in the-*257district court, and the reasoning of the lower court - proceeds largely upon that theory. However, an examination of the record discloses, as set out in the above statement of the facts, that Webb purchased the land on December 9, 1912, and the suits of Leonard were not filed until August 26 and 29, 1913.
Therefore, when Webb bought, he acquired subject only to such rights of the Busch-Everett Company as were disclosed by the conveyance records. He was informed by those records that the Busch-Everett Company held a mineral lease upon his land which would expire on February 24,1915, unless the said lessee or its assigns commenced operations before that time. To that extent, nothing that he might have done could have freed his property from the charge thus imposed. But when Leonard sold to Webb, he divested himself of all interest in the property (the privilege of exploring for minerals, for the period stipulated in the Busch-Everett lease, having already been conveyed to that company), and was therefore powerless to impose any further obligations upon either the possessor of the mineral rights or the owner of the land. However, the law made him the warrantor both of his lessee and his vendee, in that he was bound to protect them in the enjoyment of the interest which he conveyed to each. The rights of each were measured by the contracts under which they acquired. If he had continued to own the land, as a consequence, equity would have compelled him to allow his lessee to exercise its rights under the lease for the period during which his own acts had prevented it from doing so; and in my opinion it requires no citation of authority to sustain this elemental principle of justice. But inasmuch as he was no longer the owner of the land now involved either when that litigation commenced or when it terminated, he could not voluntarily or by indirection tax it with any further obligations without the consent of his vendee, Webb, nor could this court add any further burdens than those which rested upon the property when' Webb acquired it. Under his warranty Leonard became liable in damages to the Busch-Everett Company for his failure to maintain it in peaceable possession under the lease just as in any other case involving the breach of contract. When the ease of Busch-Everett Co. v. Leonard was finally decided by this court, it was not known to us that the defendant in that case had already disposed of the land in the manner above outlined, and Webb not being a party thereto, of course, was not bound by the judgment.
Like the trial court, I deem it unnecessary to decide what effect the failure to file notice of lis pendens, under the Act No. 22 of 1904, might have been, but my reason is that the suit of Leonard had not been instituted when Webb bought, and, of course, if he was not affected by that subsequent litigation, certainly the plaintiff, Standard Oil Company, his lessee, was not.
In the original brief filed herein plaintiff’s counsel cites well-recognized' principles of law to the effect that a lessor is bound to maintain the lessee in the enjoyment of the thing leased, and that when one has shown a valid outstanding title in another, he does not have to prove actual eviction in order to recover back the purchase price. But in the oral argument and in a supplemental brief, it is contended that Webb was bound by the estoppel which prevented Leonard from asserting that the Busch-Everett lease had expired. It was also urged in the oral argument that when Webb acquired from Leonard, he did so subject to the eventuality that Leonard might default in his obligations of warranty, and when that condition happened, he (Webb) was bound to abide the consequences which followed, that is, the prolongation of the lease in favor of the Busch-Everett Company, on the theory that a purchaser can acquire no greater rights than those *259possessed by 'bis vendor. The following authorities are cited in support of these contentions: Barfield v. Hewlett, 4 La. 118; Linton v. Guillotte, 10 Rob. 357; McAuley v. Creditors, 4 La. Ann. 52; Leftwich v. Brown, 4 La. Ann. 104; Walker v. Municipality No. 1, 5 La. Ann, 10; Moore v. Lambeth, 5 La. Ann. 66; Girault v. Zuntz, 15 La. Ann. 684; Pipkin v. Sheriff, 36 La. Ann. 783; Sikes v. Basnight, 19 N. C. 157; Conkling v. Sesor Sewing Machine Co., 55 How. Prac. (N. Y.) 269; McCravey v. Remson, 19 Ala. 430, 54 Am. Dec. 194; Kennedy v. Brown, 61 Ala. 269; Hasenritter v. Kirchhoffer, 79 Mo. 239.
In the case of Barfield v. Hewlett, the plaintiff brought suit to recover two slaves in the possession of defendant. Defendant claimed to have acquired the slaves at auction from one Harraldson. Harraldson had brought them to ’Louisiana under a written agreement with plaintiff that he should hire them out for plaintiff until the arrival of the latter at Opelousas, but, instead, they were brought to New Orleans and sold at auction by Harraldson. It was merely held that, in these circumstances, the defendant had acquired no title. I see no analogy to the present case.
The case of Linton v. Guillotte was one in which the plaintiff sought to enjoin defendant, from whom she had acquired certain lots supposed to front on an extension of Camp Street in the city of New Orleans, from selling or obstructing the space claimed to be a street, as private property. It was found that the supposed street had never been opened or used, that a part of it was occupied by defendant’s house, and while he had agreed that the space might be opened as a street, it was on the condition that he should be paid-$5,000 for the property, which was never done. The court found that there had been no dedication to public use, and that when the plaintiff purchased, she did so with full knowledge of the true conditions, and could acquire no greater rights than ,her vendor-enjoyed. Again, I see no analogy to the present case.
In the case of McAuley v. His Creditors, the appellants had purchased two notes of an insolvent from the commissioners of the Exchange & Banking Company, which were secured by mortgage on certain slaves. Before plaintiff acquired the notes the slaves had been sold by the syndic and bought in by the bank and a part of the proceeds retained by it to be credited on the notes. The surplus had been paid over by the bank to the syndic and apportioned on his account for the payment of other debts of the insolvent, all of which action had been approved and the account homologated by the court. It was held that in these circumstances, plaintiff, Wbo acquired thereafter, had no greater-rights than the bank. (It does not appear whether the notes had matured on their face or not, but-in law, the failure of the maker-made them become due immediately, and plaintiff knew when he purchased them that he was getting notes owed by an insolvent estate.) I do not think this case throws any light upon the present one.
Leftwich v. Brown was a case in which the plaintiff had purchased the right of action of a minor against his tutor for an accounting, and all that was decided was that, in these circumstances, the tutor was entitled to credit for payments made to the minor- after he had become of age; and that these might be shown to offset the claims of the former minor in the action by the purchaser of that litigation, the court saying, I think correctly, that the plaintiff had acquired no greater rights than the minor could have asserted.
In Walker v. Municipality No. 1, it was held that a purchaser of notes, after maturity, from a bank which, under a statute of the state then in force, when in liquidation *261was required to accept its own notes in payment of debts due it, took tbe notes subject to the same requirement, and could be compelled to accept the depreciated notes or currency of the bank in payment.
Moore v. Lambeth was very similar to Barfield v. Hewlett, except that the agent of the plaintiff had, on bringing the slaves to Louisiana, mortgaged them, and the defendant was the purchaser at execution sale. It was held that he acquired no title because plaintiff had intrusted the slaves to the agent for farming purposes, and with no power to mortgage.
In Girault v. Zuntz, plaintiff sought also to recover a slave, and defendant attached his title under the following circumstances: Plaintiff had bought the slave in under execution of a judgment in her favor against her husband. Later the husband, without her knowledge, received from one Kendall the sum of $300, and at the timé Kendall executed the following writing:
“Tallahatchie Go., Miss., Oct. 23, 1846.
“I, Wm. G. Kendall, have this day advanced to Mrs. Susan Girault the sum of $300.00, upon a certain negro boy named Joe, five years old, and black complexion, and the son of Old Billy, formerly belonging to James A. Girault, which said sum of money, if returned at any time, with ten per cent., within five years, the said boy is to be delivered to the said Mrs. Susan Girault, or her agent. I also bind myself to clothe, feed and pay all doctor’s bills for said boy; also be responsible for the said delivery, to the said Mrs. Girault, of said Boy.
“[Signed] W. G. Kendall.”
Defendant Zuntz acquired from Kendall. Zuntz attempted to show that the proceedings by which plaintiff acquired from her husband were fraudulent, and that the slave belonged to the latter. It was held that Kendall had recognized plaintiff’s title in the document just quoted more than three years after the execution sale, and hence that he (Kendall) could not dispute it; and that his vendee, Zuntz, was likewise bound by this estoppel.
The difference between that case and the present one is that all of the acts done by the defendant’s vendor had been before the defendant purchased, and their full legal effect had attached to the property which was transmitted to him subject thereto; whereas, in the instant case, the violation of the warranty in the Busch-Everett lease by Leonard occurred after he had sold the land to Webb, and at a time when he no longer had any right to impose a charge against it or to make admissions to affect the title other than those which were disclosed by the conveyance records and upon the faith of which Webb was entitled to rely.
In Pipkin v. Sheriff, a creditor of a husband had seized certain of the latter’s property, which seizure he enjoined, and while this proceeding was pending, a dation en paiement was made to the wife of the same property. Subsequently the 'injunction was dissolved and the creditor proceeded with the sale. He was then enjoined by the wife who claimed the property. Plaintiff contended that there had been no actual seizure, and hence her title was not affected by the creditor’s suit. It was ■ found that, under the circumstances of that case, there had been a valid seizure, and that plaintiff was estopped by the judicial admissions of her husband (from whom she afterwards acquired) in his injunction suit that tbe property had been seized. I can see no application to the present ease, for here there was .not only no seizure of the property when Webb purchased or at any other time, but in fact the suit was not filed for more than eight months after-wards.
Sikes v. Basnight was an action in trespass, and the plaintiff introduced, first, a deed to the land from one Sawyer to himself, and, second, one from the same author to defendant, but of date later than that of plaintiff. Thereupon defendant sought to prove title in a third person hostile to the *263one which had come from ■ Sawyer, the common author of plaintiff and defendant. It was held that, since Sawyer would have been estopped from making such showing, his vendee, the defendant, whose deed from Sawyer was anterior to that of plaintiff, was likewise estopped from showing title from any one other than Sawyer. This is in line with the uniform jurisprudence of this court; that is, that persons who claim from a common author cannot be heard to dispute that author’s title. La. Dig. vol. 5, p. 927, § 22, Estoppel; Watson v. Succession of Barber, 105 La. 460, 29 South. 949; Agurs v. Hunsicker (No. 22780) 147 La. 939, 86 South. 401. But the defendant in the present case is not disputing Leonard’s title. Oil the contrary, he admits that when the Busch-Everett lease was given, Leonard owned the land; but asserts that by the limitations of the very title of which that company acquired, as disclosed by the conveyance records, its rights had expired when the lease to plaintiff was given. Plaintiff would apply this well-recognized principle, not to the record and the interest conveyed thereby, but to subsequent conduct of Leonard, dehors the record, where he, as an independent agent, had violated the warranty imposed by the lease, and to the defendant who had acquired the land before such conduct, for the purpose of preventing defendant from reaping the benefits of the implied reversionary clause in the lease with reference to the mineral rights, which freed it from that obligation when the lease by its own terms expired.
I think it sufficient merely to quote the syllabus of Kennedy v. Brown to show its inapplieation to the present case:
“One buying lands which the vendor has incumbered by mortgage, to secure a debt to third person, and expressly agreeing with the seller and the mortgagee ■ to pay such debt, which is deducted from the cash payment required, subordinates his title to the mortgage, and is estopped from denying its validity; and the mortgage being duly recorded, a purchaser of the lands at a sale on execution against the vendee, merely succeeds to his rights, and is also bound by the estoppel.”
In all the other three cases it was found that the interests, whether of title or of mortgage, were of record, and the parties had either expressly or by operation of law acquired subject thereto, and hence could not be heard to dispute them. ,1 find no inconsistency therein with my views in the present case.
I think the record shows that defendant conveyed to plaintiff a valid title to the mineral- rights, and it has no standing to recover back the money paid.
For these reasons, I respectfully dissent from the opinion of the majority.