(dissenting).
The majority opinion herein, as I appreciate it, completely fails to give effect to or disclose a stipulation entered into between the litigants which is that, prior to entering into the Agreement to Purchase, the plaintiff Norman Young visually inspected the premises that is the subject of the sale. That is particularly important since Mrs. Helen W. Stevens, the vendor, is able to and has offered to convey to such plaintiff title to the property which he actually saw, examined and intended to buy, it being described in the Agreement to Purchase as “1228 Arabella Street, single, two-story on grounds measuring about 40' x 120' or as per title.”
Just as was the situation in Hunley et ux. v. Ascani et al., 174 La. 712, 141 So. 385, Mrs. Stevens “has a good title to everything that the plaintiffs saw and wanted to purchase.” And that case, in my opinion, is controlling here and favors the position of Mrs. Stevens. See also Kindred v. Hardie-Meric, Inc., La.App., 159 So.2d. 370. The attempt of the majority to distinguish the Hunley decision on the assertion that it merely deals with discrepancies as between *81the Agreement to Purchase and the title sought to be conveyed is unjustified.
The only possible effect of the asserted encroachments in the instant dispute (if they are permitted to remain) is a shortage (and a very minute one) in the area of the property contracted to be sold. Certainly, this plaintiff would not be compelled to litigate with Mrs. Gresham in order for him to obtain the premises that he visually inspected and intended to buy.
The theory of the cases cited and relied on for reaching the majority conclusion indirectly supports my position herein. In each of those cases the purchaser saw and inspected the premises offered for sale. It later appeared, however, that part of the improvements examined by him prior to entering into the Agreement to Purchase was located on adjoining land belonging to another and could not be conveyed by the vendor. The court held that, despite the fact that the vendor could transfer title according to the measurements and description in the Agreement to Purchase, the vendee was entitled to obtain the property and improvements which he intended to buy — ■ that which was shown to and inspected by him prior to his entering into the contract.
I think that the district judge in this case correctly concluded that “ * * * the encroachment * * * was of a very insignificant nature. Certainly, the purchaser would not have to engage in any litigation whatsoever in order to have a proper merchantable title to the property which he intended to buy and which he examined and actually saw prior to the execution of the agreement to purchase and which he purchased as per title (the title containing the encroachments as indicated in the previous acts of sale). * * * ” Consequently, it is my opinion that the judgment of the district court, which dismissed plaintiff’s suit and declared Mrs. Stevens entitled to the deposit, should be reinstated and made the judgment of this court.
Accordingly, I respectfully dissent from the majority holding.