ON SECOND REHEARING
HAMLIN, Justice:A second rehearing was granted herein in order that we might reconsider the question of the merchantability of defendant Helen W. Stevens’ title to the property involved. A'repetition of facts and issues and a chronological listing of earlier legal proceedings, fully set forth in our previous decisions, is not necessary.
*95The agreement to purchase or sell, dated March 9, 1965, recites that Helen W. Stevens offers and agrees to sell 1228 Arabella Street, single two story, “On grounds measuring about 40' x 120' or as per title”; and that, “The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto purchaser the right to demand the return of the deposit from the holder thereof, and reserving unto agent the right to recover commission.” This agreement was the standard form of the Real Estate Board of New Orleans, Inc.
It was only after an examination of Mrs. Stevens’ title, as described in our opinion on first rehearing,1 and an examination of a survey made by J. J. Krebs & Sons, Inc., November 15, 1965, that plaintiff realized that encroachments existed on the property. No mention of the encroachments was made in the agreement to purchase or sell. However, such were known or should have been known by Mrs. Stevens at the time the agreement was executed. There is no evidence of record that the encroachments were declared to plaintiff at that time or that he was aware of such when he made a visual inspection of the property. Cf. O’Reilly v. Poche, 162 So.2d 787. We conclude that plaintiff cannot be charged with the duty of seeing the encroachments at the time of inspection or with a knowledge of such after viewing the property.
It is apparent that plaintiff Young and defendant Stevens have been engaged in a lengthy controversy. Mrs. Stevens asserted a third-party demand against Mrs. James Van Buren Gresham, the adjoining property owner.2 These facts standing alone *97are indicative of the fact that Mrs. Stevens’ title is suggestive of litigation and is not merchantable. Under the facts as found in our previous decisions, a vendee of Mrs. Stevens who would accept the property in its present condition would be confronted with litigation regarding the removal of the encroachments. “A vendor must deliver title free of encumbrances and suggestion of future litigation, and which is good and merchantable * * * ” Treadaway v. Williams, 163 So.2d 911. This Mrs. Stevens cannot do. “While the amount involved is comparatively small, it cannot be said that because of this fact the danger of litigation is not serious. No one can be forced to buy a lawsuit or to take property against which there may be presented a claim which the purchaser may be required to pay.” Rodriguez v. Shroder, 77 So.2d 216.
We conclude that Mrs. Stevens’ title is suggestive of litigation and is therefore not merchantable. We further conclude that our opinion on original hearing is correct.
For the reasons assigned, the judgment and decree originally rendered herein is approved, reinstated, and made the final judgment of this Court.
HAMITER, J., dissents adhering to the reasons assigned by him on the first rehearing. McCALEB, J., concurs with written reasons.. “Also, a joint stipulation of fact, entered into between the parties for the purpose of the trial, recites: ‘A copy of the' survey to which reference is made in the most recent acquisition by defendant, Mrs. Helen W. Stevens, of the subject property, being an Act passed before L. H. Rosenson, Notary Public, dated July 13, 1962, and recorded in the Conveyance Office of the Parish of Orleans, State of Louisiana, in Book 647, Folio 693, is annexed to an earlier Act of Acquisition by defendant, passed before Ralph H. Fish-man, Notary Public, on April 1, 1957, and shows that the encroachments presently upon this property were also in existence at that time.’ (Italics ours)
“True, in the description of the property in the body of the vendor’s most recent deed that was executed in 1962 (above mentioned and which was apparently part of a ‘sale and resale’ between her and a homestead company) it was stated that a 1915 survey shows that the lot commences at a distance of 80 feet from the corner of Prytania and Arabella Streets. But the description further recites that according to a plat dated October 19, 1956, annexed to an act before Ralph H. Fishman, Notary Public, dated April 1, 1957, the lot commences an actual distance of SI feet 3 inches from that corner as shown on said survey. (The discrepancies are also noted in the body of the 1946 deed referred to above.)”
. In our original opinion, we stated : “Mrs. Jamos Van Buren Gresham, the adjoining property owner, steadfastly refused to remove the encroaching driveway or *97fence on the Prytania Street side of the lot in question. Mrs. Stevens therefore asserted a third-party demand against her for indemnification in the event it should be held that the encroachments rendered the property unmerchantable.”