The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-06-08
Supreme Court of Louisiana.
Condensed Decisions--NEw ORLEANS. June l. 184

An acknowed an act of sale of real estate
purchaser consdefs himself in possession. refers excu
sivey to the possession which the seller had Unde
Art 2455a seller of real estate not dispensed from tn
actual delivery of the property to the purchaser when
in the possession of another at the time of the SALE
When there outstanding claims to real property. ihs
purchaser not bound to accept offer of the seller
take back the property refund the pTce and pay the
purchases for the improvements The purchaser has The
right tu insist upon the specific performance of the
| tract -. When seller fails put purchaser in pos
session of portion of real estate purchased by him.
injunction against its sale will be granted to remain in
force until the seller complies with that part of his
| contract.
| PATRICK FLYNN 49, SAMUEL MOORE. AGENT.
Appeat from me Third judicial District Court Par
ISL Of Jefferson. .RosT, j.. Defendant had sold
to plaintiff town lot for $500; $500 cash and the
remainder In three notes of $500 each Plaintiff
having failed to pay those notes at maturity de-
PENDANT took out order of seizure and sale, which
| plaintiff enjoined on the following grounds: That
half of the lot at the time he purchased it
| in the possession of John HI. Martinsten, who
| claimed it owner TO the knowledge of defendant,
| who fraudulently concealed that fact from him
that the city Surveyor having knowledge of the
title and possession of Martnstein has refused TO
put him. the plaintiff, in possession of the lot, and
| that defendant has acknowledged the existence of
all adverse claim. The prayer is that the injunc-
ton prayed for be made perpetual and the plaintiff
dispensed from paying his notes until defendant
shall put him In possession of the portion of the lot
claimed and occupied by Mariinstein.
The answer is & general denial and an averment
that when the defendant was informed of the claims
of Marinstein, he offered the plaintiff to take back
the property and refund the price, and also to pay
for the Improvements. Defendant prayed that the
injunction be dissolved with damages. There was
judgment below in his favor and plaintiff appealed.
Per curiam: We think this Judgment unautho-
rized by law. Although MartinsteIn did not en-
close the portion of the lot in controversy till after
the purchase by plaintiff, it is proved that he
IN possession of it to the knowledge of defendant
through his agent .Sam'l Moore. Defendant has not
delivered the thing sold, under Art. 2450 C. c.. he
was bound TO deliver it, The District Judge erred
in holding the plaintiff bour d by his acknowledge
ment in the act of sale that he considered himself
in possession. That acknowledgement referred ex-
clusivey to the possession which the vendor had :;
if third person in possession at that time and
defendant concealed that fact from plaintiff, he
guilty of fraud which entities the plaintiff to
relief. notwithstanding his acknowledgement.
1t is urged that the law considers the tradition or
delivery of immovable property as always accom-
panying the public act which trainers the property.
c. c. 1885, This is true so far as the vendor is
concerned, and every obstacle which he afterwards
nterposes to prevent the corporal possession of the
buyer is considered as a trespass. But he is not
dispensed from the actual delivery of the thing
sold when II is in the possession of another at the
time of the sale. The plaintiff was not bound to
to insist upon the specific performance of the con.
tract, and the defendant has no claim against him
before the delivery of the entire thing sold Judg.
ment below reversed the injunction was re-
instaied, to remain in force until defendant shall
put plaintiff in possession Of the portion of ground
sold to him and now claimed and occupied by John
H. Martinstein defendant to pay the costs in both
courts.
Where, In the settlement of the community formerly exist
ing between the deceased mother Of wife and her
father the share of the wife received by her in the
of her husband previously given to her father for
loan made by him to the husband and the notes bore
neithek privilege nor mortgage and by her de-
liveredt to her husband held that the wife acquired no
mortgage the of her husband for her said para
phefnal rights.
SLATER, for the use of ISAAC T. PRESTON, u.s.
The REPRESENTATIVES of HENRY TErE. Appeal
from the Fifth Judicial District Court, Parish of
Assumption. .EUsTIs, c. j. Plaintiff, judg-
ment creditor of the late Augustus Tete applied to
the Court for the sale Of certain slaves belonging
to his succession, to satisfy his debt His Judgment
was recorded on the Both May, 1912. The de-
fendant who is the surviving wife of the deceased
claims a prior mortgage on the slaves, resulting
from the partition of the estate of her deceased
mother, and the receipt of Sl7,S49 35 of her para
phernal effects, on the 18th of June, 1893, which
her husband converted to his own use, he having
the administration and enjoyment of the same until
his death, which took place July 16, 1916. The
lower Court sustained the pretensions of Mrs.
Tete, and plaintiff appealed
The settlement of the community which had ex-
listed between Mrs. Tete's deceased mother and
her father, took place extra udcially before no.
tary, in New Orleans, Oh the 18th June, 1888.
Mrs. Tete's share was found to amount to ST.
S49 IS. Among the effects TO be divided between
the father and the heirs of the deceased mother,
were several notes drawn by Auguste T6te, de-
PENDANTS husband TO the order of the father, and
which appear to have originated in loan made
L., ~, H.
portion of Mrs. Tete in her mothers succession,
was received by her in the notes of her husband,
which she delivered to him. These notes bore |
neither privilege nor mortgage. On the same day. |
June II, 1888, by noarlal act, Mrs. Tele acknow-
lodged to have received the above mentioned |
amount from her father, and in that act-to which
her husband was party-she declares her inten-
ton of leaving to her husband the administration
of this sum, the amount of her hereditary rights !
which he acknowledges to have received and to |
become indebted to his wife therefor.
Per curiam: "These facts present the naked |
question: whether the receipt of these notes, and
the delivery Of Them % the husband under the cir
cumstances thus stated, constitute legal mort |
gage, in favor of the wife, the property of the
husband. The decisions which have been |
made by our predecessors, in Art. 1867 c. c., we
do not understand as extending its operation be- |
yond cases in which the husband receives money |
belonging to his wife, or has disposed of her pro-
ster, Rob. 70; Compton Us. her husband, G Rob. |
I57 Turner ps Parker, 10 Rob. Isl. In |
the present case the debt had previously existed. |
1t has been perm lied to remain it originally |
stood, and to what extent it had enured to the ben
eft of the debtor, is matter of conjecture, resting
for its certainty entirely the of his affairs.
OF this we have not the proof which the article |
itself requires This article has feature usual
in the code. 1t imposes the burthen Of proof on |
the party claiming the legal mortgage, and when |
it is considered that the mortgage is tacit, not
corded and that there is no means by which the |
public notified of the receipt of the paraphernal
by the wife or the husband tine necessity
of this provision is obvious, well as that of
strictly observing it. 1t seems to be |
paradox that by the transfer of the notes to the
wife, and their delivery to the husband, this debt
should be invested with tie real security of mort
gage, to the detriment of other creditors. A con-
struction which would operate this injustice we |
cannot adopt. The abuses to which it would evil |
DENLY give rise, are nsuperable objection to its
soundness. The object of the law is to protect |
married women in their just rights, and not 10 ena
bic them to wrong their husbands creditors This |