ON REHEARING
WEBB, J.Defendant,' Garrett, under a deed of date May 16, 1929, sold to plaintiff, Berry, certain real estate situated in the parish of Richland, the property being described as “all of the said William J. Garrett interest in and to one-half acre in the northeast corner of the NE% of NW%, section 35, township 17 north, range 9 east, bought at tax sale on September 5th, 1929, from James Marshall, as per deed recorded in Notarial Record Book 52, . page 519.”
Plaintiff brought the present suit to rescind the sale, and to obtain restitution of the purchase price; and in support of the right to recover, plaintiff alleges that defendant did not have any title to the property and that John M. Munholland was in possession of the property under a valid title. In answer to the suit, defendant alleged that he had acquired a valid title to the property under the tax sale from James Marshall, and that Munholland did not have any title thereto; and defendant further alleged that plaintiff had purchased the property at his risk and peril, and that he, defendant, was not in any event liable to restore the purchase price. On trial judgment was rendered in favor of plaintiff ordering defendant to restore the purchase price, and defendant • appeals.
The appeal was originally presented here and a decision, rendered affirming the judgment on December 23, 1930 (see Ber*266ry v. Garrett, 131 So. 475), in which we found that' there had been a dual, assessment of the property described and that taxes had been paid at the time of the tax sale to Garrett. On- application for a rehearing, both parties stated that-, the taxes had not been paid, and the appeal is now presented on rehearing on the original briefs filed, in which the parties confine their discussion, first, to the validity of the tax sale, under which Garrett acquired the property, and second, in event the tax sale was invalid, to the liability of defendant to restore the purchase price.
Relative to the validity of the tax sale, the record shows that the sale and deed to Garrett were made on September 5, 1927, under an assessment against the property for the year 1926, in the name of James Marshall, who acquired the property under deed of date January 2, 1924, from A. B. Bates, who acquired the NE% of NW14, section 35 (which included the property sold by him to Marshall), under deed of date December 17, 1923, from Nancy Darrington, who retained a vendor’s lien and mortgage on the property sold to secure the payment of notes given by Bates for the purchase price; and Nancy Darrington proceeded against the property under the mortgage and vendor’s lien, and the entire NE1/^ of NWy4 of section 35 was sold under such proceeding to John M. Munholland, who recorded his deed on April 5, 1927, and entered in possession of the property.
While there cannot be any doubt that the property sold by Garrett to plaintiff was properly assessed for the year 1926, in the name of James Marshall, who was the owner of record at that time, it is clear that the title of Marshall was divested by the sale made under the foreclosure proceedings referred to above, and that John M. Munholland was the record owner of the property at the time of the tax sale, and the evidence showing that Munholland, who was in possession of the property sold at tax sale, did not have knowledge that the taxes assessed against same had not been paid, and that he was not given notice of the non-payment of the taxes prior to the sale, we are of the opinion the tax sale was void for want of notice and did not divest Munholland of his title to the property (Ryals v. Todd et al., 165 La. 752, 116 So. 395; also Kivlen v. Horvath, 163 La. 901, 113 So. 140).
Considering the liability of defendant to restore the purchase price on the grounds that plaintiff purchased at his risk and peril within the meaning of article 2305, Civil Code, there is not anything on the face of the deed indicating that the parties understood that the sale was made at the risk and peril of the vendee, but on. the other hand, the contract contained an express stipulation of warranty. However, even though there had been an express stipulation that the sale was made without warranty, defendant would not be relieved of restoring the purchase price in the absence of a stipulation to that effect, or at least proof that plaintiff knew or was informed by defendant of the defects in the latter’s title. And the record failing to show that plaintiff knew of any defect in the title, defendant was bound to account to plaintiff for the purchase price (N. O. & Carrollton Railroad Co. v. Jourdain, 34 La. Ann. 648, and authorities cited).
The judgment appealed! from is therefore affirmed at appellanc’s cost.
McGREGOR, J., recused.