Rabouin v. Dutrey

• Decision Date: 04 March 1935
• Docket Number: 33129
• Citation: 181 La. 725,160 So. 393
• Court: Louisiana Supreme Court
• Parties: RABOUIN v. DUTREY

160 So. 393

181 La. 725

RABOUIN v. DUTREY

No. 33129

Supreme Court of Louisiana

March 4, 1935

Rehearing Denied April 1, 1935

Appeal from Twenty-Fourth District Court, Parish of Jefferson; L Robert Rivarde, Judge.

Suit for specific performance by Louis H. Rabouin, Jr., against Albert J. Dutrey. From a judgment for defendant, plaintiff appeals.

Reversed, with directions.

Dart &amp Dart and Louis C. Guidry, all of New Orleans, for appellant.

Pomes & McCabe, of New Orleans, for appellee.

OPINION

ODOM,Justice.

Defendant offered and agreed to purchase from the plaintiff a lot 50 by 150 feet, together with improvements thereon, which consisted of a store and an upper apartment, for a consideration of $ 6,100 cash. This offer was made on May 8, 1933, and immediately accepted by plaintiff, the act of sale to be passed before the defendant's notary on or before thirty days from the date of the offer and acceptance. As per agreement, defendant deposited with the notary $ 610, or 10 per cent. of the price; this amount not to be considered as earnest money, but a part of the purchase price, "the parties reserving the right to demand specific performance." The offer to purchase and its acceptance were reduced to writing, the instrument containing the following clause: "In the event that title is not valid and can not in reasonable time and at reasonable expense be made valid this contract shall be null and void."

Defendant refused to carry out his offer and agreement to purchase. This suit by plaintiff to compel specific performance of the contract followed on November 24, 1933. Plaintiff alleged that he was able and willing to deliver the property under good, valid, and merchantable title, but that defendant had refused to accept title and to pay the price agreed upon. Plaintiff prayed for judgment ordering defendant to perform the obligations of his contract by accepting title and for judgment against him for $ 5,490 and decreeing plaintiff to be entitled to receive the cash deposit of $ 610, the two amounts making $ 6,100, stipulated as the purchase price.

The defendant in answer admitted that he had agreed in writing to purchase the property at the price mentioned and that he had refused to do so because since he agreed to purchase he had discovered that one of the deeds which forms a link in plaintiff's chain of title contains the following building restrictions:

"(1) The building line shall not be less than twenty feet back from and parallel with the front line of said lot.

"(2) Not more than one residence building shall be erected on any one of the lots of ground herein conveyed and said buildings shall cost not less than six thousand dollars.

"(3) No business establishment shall be erected on any of the lots herein conveyed.

"(4) Neither the lot herein conveyed or the building erected thereon shall ever be sold or leased to any one except of the Caucasian race."

It is alleged in answer that said building restrictions still form a part of plaintiff's title; that the building now on the property was put there in violation of those restrictions, in that it was built for and is used for commercial purposes and is not 20 feet from the property line; and that therefore "plaintiff can not deliver to respondent a good and merchantable title."

There was judgment in favor of defendant rejecting plaintiff's demands at his costs, and further judgment for defendant and against plaintiff for $ 610 and interest from judicial demand and annulling the agreement entered into between him and plaintiff. The plaintiff appealed.

Defendant grounds his refusal to carry out his offer and agreement to purchase the property upon the proposition that plaintiff's title is not good, valid, and merchantable and is suggestive of litigation. If that be true, his defense is well founded. Bachino v. Coste, 35 La.Ann. 570; Beer v. Leonard, 40 La.Ann. 845, 847, 5 So. 257; James v. Mayor, 41 La.Ann. 1100, 7 So. 618; Praegner v. Kinnebrew & Ratcliff, 156 La. 132, 100 So. 247.

Plaintiff's title traces back through mesne conveyances to the Vivian Land Company, a corporation organized under the laws of this state. On April 21, 1920, that company sold the then unimproved lot here involved to the Security Building & Loan Association, and "as part of the consideration of this sale" the purchaser obligated itself and its assigns "to the following restrictions, reservations, covenants and agreements." Then follow the restrictions copied herein above.

On the same day the Security Building & Loan Association sold the property to Herbert K. Smith, but the deed contained no building or other restrictions. On November 22, 1921, Smith sold to a corporation styled Herbert K. Smith, Inc.; Herbert K. Smith, Inc., sold to Fred Mittelhausen on March 28, 1923; Mittelhausen sold to Louis H. Rabouin, Jr., on August 27, 1926; Rabouin sold to the Liberty Homestead on October 5, 1926; the Liberty Homestead sold back to Rabouin on May 9, 1927; Rabouin transferred it by dation en paiment to the Liberty Homestead on May 17, 1933; and the Liberty Homestead sold to plaintiff on June 19, 1933.

Subsequent to the deed made by the Vivian Land Company to security Building & Loan Association on April 21, 1920, in which the restrictions, reservations, covenants, and conditions complained of appear, there have been nine conventional transfers of this property. But in none of the nine deeds were there any building restrictions, nor was there any reference made in them to the restrictions contained in the Vivian Land Company deed. So far as the record discloses plaintiff had no knowledge of the restrictions in the Vivian Land Company deed until his attention was called to them by counsel for defendant after the agreement to sell and purchase was signed on May 8, 1933. Thereafter, on July 27, the Vivian Land Company, duly authorized by resolution of its board of directors, appeared before a notary and declared that whereas it had on April 21, 1920, sold the said property to the Security Building & Loan Association and that "whereas through inadvertence said act of sale recited that said property was sold under certain restrictions as follows: (then follows a copy of the restrictions) and whereas it was not the intention of said corporation to include said restrictions in said act of...