(61 South. 151.)

No. 19,043.

#### FLEMING v. IRION.

(June 4, 1912.

On Rehearing, Feb. 17, 1913.)

*(Syllabus by the Court.)*

1. Vendor and Purchaser (§ 13*) — Relevancy — Value.

In considering the value of real estate, every reasonable element going to create value should be considered, and no one fact should be controlling in the determination of its value.

[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 14; Dec. Dig. § 13.*)

2. Action eor Lesion Beyond Moiety — Evidence.

In an action for lesion beyond moiety, the plaintiff need only prove the value of the property with reasonable certainty.

3. Vendor and Purchaser (§ 98*) — Rescission oe Contract — Action—Restoration oe Consideration.

Where the vendor 'sues for the rescission of a sale for lesion beyond moiety, he must return the purchase price, together with interest.

[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 163-165; Dec. Dig. § 98.*]

On Rehearing.

4. Vendor and Purchaser (S 13*) — Validity oe Contract — “Lesion.’*

Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. Civ. Code, art. 1860.

[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 14; Dec. Dig. § 13.* For other definitions, see Words and Phrases, vol. 5, p. 4093.]

5. Vendor and Purchaser (§ 104*) — Rescission oe Contract — Action—Issues.

The intrinsic value of the land at the time of the sale and of the plaintiff’s pretensions and the nature of his title should be examined and inquired into, as matters put expressly at issue in an action for the rescission of a sale on account of lesion. Copley v. Flint & Cox, 16 La. 380.

[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 178-182; Dee. Dig. § 104.*]

6. Vendor and Purchaser (§ 104*) — Rescission oe Contract — Action—Evidence.

Proof must be strong to sustain a suit for lesion.

[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 178-182; Dec. Dig. § 104.*]

Appeal from Civil District Court, Parish of Orleans;' Thomas C. W. Ellis, Judge.

Action by John Fleming against Henry F. Irion. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Lazarus, Michel & Lazarus, of New Orleans, for appellant. Walter L. Gleason, W. S. Parkerson, and Stirling Parkerson, all of New Orleans, for appellee.

BREAUX, C. J.

Defendant bought from the late John Fleming the undivided half of six lots of ground, with improvements, designated as lots 7, 8, 9, 10, 11 and 12 in the square bounded by Prieur, O’Reilly, Aubrey, and Johnson streets and London avenue according to plan made by Castaing and Celles, architects, in the year 1865, deposited in the office of A. E. Bienvenu, notary.

On March 31, 1908, Fleming sold his undivided one-half interest to Henry F. Irion, the defendant, for $500.

In the following November of the same year, he brought this suit to have the sale rescinded for lesion. He valued his undivided half of the property at $2,500. He tendered to defendant the price of $500 he had received, with interest thereon.

In answer to the suit the defendant’s answer- is that the property is not worth near the amount alleged by plaintiff; that he only yielded to the solicitation of plaintiff in buying the property.

Fleming died after the suit had been brought. His children were made parties, and the suit was continued in their names.

The judge of the district court decided that there was lesion, and rescinded the sale, but condemned the plaintiff to return the capital, and he is silent as to the interest tendered.

[1] The question before us for decision is the value of the property. A number of witnesses were examined, six by plaintiff, and three by defendant. It was proven by *166them that there are undesirable persons who dwell near, whose bad conduct reflected upon the whole number of those residing in the immediate vicinity; that hoodlums sometimes gather in this locality. Unquestionably this was objectionable, and doubtless prejudiced values, but is not controlling. We must accept the amounts fixed by witnesses, and reach a conclusion after having given them consideration.

Beginning with the witnesses for plaintiff. E. T. Fleming, however interested, is still a witness, and testified that the lots were worth $400 each in 1908; the house and barn $900. His own lots he had sold for a larger amount.

We reach the conclusion.,, that the testimony of this witness fixes the value of the land at $2,400, improvements at $900.

The dwelling and barn and other outhouses were insured in 1911 in the name of John Fleming at $1,000.

Peter Barbazon substantially corroborates E. T. Fleming. About the year 1908 he offered $2,500, an offer to which we do not attach importance. It is only mentioned in passing, for such evidence is easy, and not for that reason entitled to the least weight. The witness does not testify that the property was worth that sum.

Wm. A. Kernaghan, auctioneer and real estate agent, estimates its value at $2,400. He stated that for a class of people the property was desirable, not for another class.

The testimony of Henry Cambre is rather of the negative kind, and really proves very little, if anything.

John J. Fleming, another plaintiff since the death of his father, naturally places a high estimate upon the property.

Patrick M. Fallon, a relative of plaintiff, husband of one of the heirs, places a high estimate — $450 to $500 a lot.

Elias Paillet, dealer in real estate, was defendant’s first witness. Counsel examined him closely. He, it seems, bought property at low prices, and sold them for as much as he could get for them. 1-Ie had offered to buy defendant’s property. His idea of the value of property as well as the ideas of one or two others of defendant’s witnesses were at variance with the general trend of the testimony. He mentions -deals of his own, in one instance involving a large amount, property which must have been of some value, not far from the property claimed by plaintiff.

The evidence for defendant of another dealer in land varies less from the general trend of the testimony. Another witness for the defendant fixed the value as follows:

> “The value I would have put upon the lots of that property would have been $150 the lot, improvements in the house to be worth about $350; and the stable, $300.”

This witness has some experience in estimating property. If he intended to fix the value at $25 a lot, that would be entirely different from all other testimony. If he intended to fix the value at $150 the lot — that is, one lot — it would be in keeping with conservative estimates. Be that as it may, we pass to other considerations.

The improvements were insured annually for a number of years for $1,000 per annum. It is not probable that insurance companies would insure improvements of very little value for that amount. One-half of the property was owned by the vendor, and he had the usufruct of the other half as it had passed to him from the community; his wife being dead and it being community property.

One of defendant’s grounds is that property held in indivisión is not worth as much. He had by his purchase created the indivisión, and now complains of a situation brought on by himself.

Regarding the lawlessness of the inhabitants of the neighborhood, the offers made by several persons to buy the property does not *168show that the bad conduct alleged has a very great influence in dissuading purchasers.

It is difficult to prove the value of property, for in the hands of one owner it may have considerable value and none in the hands of another. It is also an easy matter for an expert to reach the conclusion, without violence to his way of thinking, that land is valuable or that it is not.

Eor these and other reasons, all facts in matter of land value are to be considered, and no one fact or no one view of an expert should be controlling.

[2] We think it reasonable to agree with the district judge, who had the opportunity of hearing the witnesses, and to consider the question at first hand. It does seem to us that the undivided half of six lots (graded) and within city limits, and a tenantable dwelling house and other improvements may well be worth over $1,000. That was the opinion of the district judge. It is also ours. The value has been proven with reasonable certainty.

[3] The plaintiff tendered $526.44, being $500 purchase price and interest. The seller shall pay the purchase price which he has received with interest. Civil Code, art. 1878.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is amended by increasing the amount to $526.44, and, as thus amended, it is affirmed, plaintiff and appellee to pay the costs of appeal.

On Rehearing.

SOMMERYILLE, J.

Defendant having died since this cause was submitted, Mrs. Mary Wagner Irion appears, and asks that she be made party defendant in the capacities of widow in community, and as natural tutrix of her minor children with the deceased, viz., Henry W. Irion and Elsie M. Irion, in the place and stead of the deceased.

A re-examination of the record in this case has led us to the conclusion that the interests of justice will be best served by remanding it to the district court for a new trial.

[4]The Code (article 1860) defines lesion to be:

> “The injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The. remedy given for this injury is founded on its being the effect of implied error or imposition; for, in every commutative contract, equivalents are supposed to be given and received.”

And article 1861 provides with reference to the sales of immovable property that:

> “The vendor may be relieved if the price given is less than 'one-half of the value of the thing sold; but the sale cannot be invalidated for lesion to the injury of the purchaser.”

[5, 6] In the present case plaintiff is demanding the rescission of a sale of an undivided one-half interest in and to certain lots situated in the city of New Orleans, alleging that the sale to defendant was made for less than one-half of the value of said undivided one-half interest. We have held in similar cases that the proof offered by the plaintiff must be strong and the value of the property at the date of sale must be clearly shown. In the present case plaintiff offered evidence to prove the value of the whole property, and not the value of an undivided one-half interest in that property. He argues that the evidence shows that the value of the whole property, as testified to by witnesses, is shown to be more than four times the amount received by him from defendant for an undivided one-half interest in that property, and that one-half the value of the whole is the real value of an undivided one-half interest. But we are of the opinion that the proof offered is insufficient upon which to base a judgment setting aside a sale on the ground of lesion. Plaintiff should have offered evidence of the value of an undivided one-half interest in the property. The only testimony in the record on this point was brought out on the cross-examination of one of plaintiff’s witnesses to the following effect:

> *170“Q. Do you find more readily purchasers for a part than for a whole interest? A. No, sir; you do not. Q. It is harder for selling — harder to sell? A. You mean to sell a fraction than to sell a half? Q. You sell a fractional interest at much less than you can sell a whole property? A. Yes, sir. Q. You can never get as much for a fractional interest as for the whole interest? A. No, sir. Q. I mean, proportionately. Mr. Kernaghan, you know what I mean? A. Yes, sir, I understand. Q. If a property is worth $2,000, and a man owned an interest, could you sell all of it as readily for $2,000 as one-half of it for $1,000? A. You could not Mr. Michel, get $1,000 for one-half as readily as you could $2,000 for the whole property. Q. It would be much depreciated from a thousand? A. It might and it might not. It is not as readily sold as a whole interest. Q. The prices are not as good? A. No, sir.”

But, we repeat, there was no evidence offered going to show the value of the interest owned by plaintiff in the property under consideration.

In Copley v. Flint & Cox, 16 La. 380, we say:

> “The inquiry, therefore, ought not to have been confined to the intrinsic value of the land. The value of the plaintiff’s pretensions and the nature of his title should have been examined and inquired into as matters put expressly at issue. The best writers on the subject admit that the title of the vendor may to a certain extent be looked into in actions, of this kind. Pothier, in his treatise on Sale, considers the inquiry to be not so much what is the extrinsic value of the thing as what it was worth to the vendor. * * * The same doctrine is found in various modern authors, who have commented on the legislation of France, which, on this point, is believed to be identical with ours. Troplong uses the following language: ‘In order to arrive at a just appraisement of the value of the thing, according to the common price, we ought to take into account all the circumstances which might diminish its importance and emolument.’ ”

And we remanded that case because the evidence there was confined to the intrinsic value of the land, and not certain things which affected title to and possession of the land.

Here, the fact that plaintiff held in indivisión with others might, as testified to by Mrs. Kernaghan, affect the value of that interest; and, until there is evidence offered on that point, we feel that full justice cannot be done to the parties to the litigation.

It is therefore ordered, adjudged, and decreed that Mrs. Mary Wagner Irion, in her capacities of widow in community of H. F. Irion, and the natural'tutrix of the minors Henry W. Irion and E-lsie M. Irion, be made party defendant in this suit, and she is authorized to stand in judgment herein in the same manner, in her said capacities, as the deceased defendant could have done.

It is further ordered that the judgment appealed from be annulled, avoided, and reversed, and that this case be remanded to the district court, to be there proceeded with in accordance with law and the views herein expressed, costs of appeal to be paid by the appellee.