Gautreaux v. Boote

Ogden, J.

The plaintiff became the purchaser at a public sale made by the Sheriff, of a tract of land partly belonging to the succession of Ursin Hebert, and partly to the widow of Hebert, in her own right. The land was sold in pursuance of an order of court, rendered in the mortuaria of the succession of Hebert. In the notarial act of transfer of the property to the purchaser, consequent upon the adjudication, which was signed by the administrator of the succession, and by the widow, there is the following clause relating to warranty : “ And that they do by these presents, in all their respective capacities, grant, bargain, sell, assign, transfer and set over with all lawful warranty, that they, the said Boote and widow Hebert, have and may have hereafter in their respective capacities, (i. e.) that the said W. Boote hereby sells all the rights, titles and claims, belonging to the estate of the said Ursin Hebert, and tho said widow Hébert, hereby sells all tho rights, titles and claims, that she has personally, and no other warianty whatever, unto the said Valentin Gautreaux, here present and accepting,” &c. The plaintiff enjoined an order of seizure and sale taken out by the vendors, on the mortgage notes for the price executed by Gautreaux in their favor, on the ground of failure of the title and danger of eviction. Tho only point which is presented in the argument of the appellant’s counsel before this court is, that the clause in the act of sale as above set forth excluded any warranty of title, and that the buyer when threatened with eviction- has no right to require security, under Art. 2535 of tho Code, when there lias been an exclusion of warranty. The adjudication of the property to the defendant at tho probate sale imported full legal warranty. The .clause in tho notarial act is nota clear expression'of the intention of the parties to vary the terms on which the adjudication had been made. “ The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him.” Art C. 0. 2449.

But admitting it to be a correct construction of the act of sale that the vendors were to be subject to no warranty as to the validity of their title, this case cannot be distinguished in principle, from that of Dufieff v. Boykin, 9 An.

The only exception stated in Article 2535 to the rule there laid down, that the buyer may require security to be given to him when he hasjust cause to apprehend being disquieted by adverse claims, is the case where the buyer has been informed before the sale of the danger of eviction.

The seller is bound to restore the price in case of eviction, oven where it was stipulated that there should be no warranty, unless the buyer was aware at the time of the sale of the danger, and purchased at his peril. Art. 2481..

The plaintiff did not purchase at his risk, and with knowledge of the danger of eviction. He is entitled to the relief which he has asked for if he has shown that he has just reason to apprehend eviction. It is shown by the evidence that the certificates of entries under which the vendors of the defendants derived their title to the land, have all been cancelled by the Commissioner General of the Land office, as being in conflict with a confirmed claim, and in violation of an Act of Congress of the 3d of March, 1811. As no patents had issued on these entries, the authority of the proper department of the government to order them to be cancelled has been recognized by frequent decisions. See cases of Pepper v. Dunlap, 9 Rob. 283. Morancey v. Ford, 2 An. 299. McGill v. McGill, 4 An. 262, and Poydras v. Millaudon, 9 An.

The judgment of the court below is therefore affirmed with costs.