Bradford v. Damare

• Decision Date: 01 December 1894
• Docket Number: 11,647
• Citation: 46 La.Ann. 1530,16 So. 487
• Court: Louisiana Supreme Court
• Parties: JAMES L. BRADFORD v. GERMAIN DAMARE; JAMES L. BRADFORD v. OSCAR RICHARD; JAMES L. BRADFORD v. GEORGE VIGNEAU

16 So. 487

46 La.Ann. 1530

JAMES L. BRADFORD v. GERMAIN DAMARE; JAMES L. BRADFORD v. OSCAR RICHARD; JAMES L. BRADFORD v. GEORGE VIGNEAU

No. 11,647

Supreme Court of Louisiana

December 1, 1894

APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

James L. Bradford, Plaintiff and Appellant, in propria persona.

Sims &amp Gondran, for Defendants, Appellees.

OPINION

MCENERY, J.

These cases were consolidated, tried together and one judgment rendered applicable to all. Plaintiff's demands against defendants were dismissed.

The plaintiff purchased from the Pontchartrain Levee District a large amount of swamp land. The sale was made May 1, 1894. The price was one dollar per acre, and the land conveyed situated in Iberville parish, was two thousand one hundred and seventy-nine and 92-100 acres.

In the petition in the suit against Damare, it is alleged in the months of June, July or August, in 1893, during a period of overflow, he cut from said land a large number of cypress trees, and made the same into boards and shingles, staves and wood. The petition alleges that said staves now are, and always have been, the sole, lawful property of your petitioner, and that he is entitled to recover possession of the same, or the value thereof, with full damages for their conversion.

The suit against Vigneau and Richard, both of whom, it is charged, received from the defendant, Damare, staves, is for their unlawful detention and refusal to deliver the same to petitioner. In these suits writs of sequestration were issued, except as against Richard, and the property seized. It was released on bond by defendants.

The defendants filed an exception of no cause of action, which was overruled, after which the defendants filed answers reiterating their exception and a general denial. Subsequently and prior to the trial, peremptory exceptions were filed, to the effect that should it be held that the act of sale carried with it the right to sue for the alleged trespass and torts of defendants, that the sale was of a litigious right, and therefore null and void. This was referred to the merits, and on the trial of the case the demand of plaintiff was rejected in each of the three suits the sequestration against Damare and Vigneau was set aside, one hundred dollars damages for attorney's fees in favor of Damare for the setting aside of the sequestration, and for the same reason fifty dollars in favor of Vigneau. Material evidence, necessary to support plaintiff's demand, was rejected, and the judgment was based on failure of proof on part of plaintiff.

The plaintiff bases his right to pursue the defendants on the recital in the deed to him as follows: "With full substitution and subrogation in and to all the rights and actions of warranty which said board has or may have against all preceding owners and vendors and to all other rights and actions against all other persons;" and to a supplemental deed to him, after the filing of this suit by the Pontchartrain Levee Board, in which it is alleged that in the sale to plaintiff the board intended to transfer to him "every right of action or recourse in favor of said Bradford which said Board of Commissioners or its vendors had or might have to proceed against any and all the trespassers or other persons for trespassing upon, or advising, aiding or abetting others in trespassing upon, or cutting, or removing, or purchasing, or otherwise interfering with the timber and trees, being or growing upon said land." This supplemental deed or declaration of the intention of the parties to the original deed was rejected by the court. It will not be necessary to rule on the question of its rejection, for if the defendant's exception of no cause of action, which was directed to the recital in the original deed, is good, it applies equally to the recitals in the supplemental deed, as it is equally as ambiguous and fails to expressly describe or indicate what particular right of action was transferred to plaintiff.

This court has said in several cases "that the purchaser of property is presumed to acquire all actions appurtenant to the property and necessary to its perfect enjoyment; but as to damages actually suffered by the vendor before the sales they are personal to him and can not be recovered by the purchaser without an express subrogation." Clark vs. Warner, 6 An. 408; Payne, Jr., vs. James & Trager, 42 An. 234; Matthews vs. Alsworth, 45 An. 466.

If the plaintiff rests his demand upon the substitution in the act of sale to him he is confronted by Art. 2160, par. 1, C.C., which says in reference to a conventional substitution: "When the creditor receiving his payment from a third person subrogates him in his rights, actions, privileges and mortgages against the debtor, this subrogation must be expressed and made at the same time of the payment."

In the act of sale to plaintiff there is no mention of his having paid the debt due by these defendants to his vendor, and there is no express subrogation made at the time of payment. If the act subrogated the plaintiff, as claimed in the petition, the price paid for the property should have some reference to the claim which the plaintiff paid, and was included in the price.

In the case of Clark vs. Warner, 6 An. 408, this court said: "But as to damages actually...