Talbot v. New Orleans Land Co.

• Decision Date: 01 April 1918
• Docket Number: 22936
• Citation: 78 So. 553,143 La. 263
• Court: Louisiana Supreme Court
• Parties: TALBOT v. NEW ORLEANS LAND CO. In re NEW ORLEANS LAND CO

78 So. 553

143 La. 263

TALBOT v. NEW ORLEANS LAND CO. In re NEW ORLEANS LAND CO

No. 22936

Supreme Court of Louisiana

April 1, 1918

Rehearing Denied April 29, 1918

SYLLABUS

(Syllabus by the Court.)

Where under a contract between an owner of real estate and another, the obligation is imposed upon the owner to make 'a good and sufficient warranty title,' when certain conditions shall have been complied with, and the right to demand such title has been conferred upon the other contracting party, and, the conditions having been complied with, the owner tenders a title which is incumbered by an inscription showing pending litigation, such tender amounts to an active violation of the contract, an action will lie for its rescission, and for the recovery of money paid thereunder, and the owner cannot be heard to say that the contract itself is a sufficient title, and that none other is needed, since the contract itself is conclusive to the contrary.

The provision of the Civil Code (article 2462) to the effect that 'a promise to sell amounts to a sale' has no application to a case in which the parties have otherwise agreed; nor has the doctrine that a buyer in possession has no right of action to rescind a sale for an alleged defect in the title conveyed to him, save in case of his eviction, since the seller warrants the possession, but cannot foresee or prevent attacks which may be unfounded upon the title, whereas the obligation to furnish a good and sufficient warranty of title means a title which is not involved in or threatened with litigation, and the obligor who is unable to comply with that obligation is in the same predicament as the seller who is unable to protect the possession of his buyer.

Charles Louque, of New Orleans, for applicant.

Johnston Armstrong, of New Orleans, opposed.

OPINION

MONROE, C. J.

On April 8, 1910, the defendant (applicant before this court) and the plaintiff executed, by private signatures, an instrument entitled 'Bond for Deed,' reading in part as follows:

'This agreement, * * * between the New Orleans Land Company, * * * party of the first part, and P. T. Talbot, M. D., * * * party of the second part:

'Witnesseth, that the party of the first part hereby agrees to sell and the party of the second part hereby agrees to buy the four certain lots [describing four lots in this city]. The party of the second part agrees to purchase, and does purchase, the above-mentioned property for the sum of $ 1,400.00, on the following terms and conditions, to wit: One hundred and forty dollars, paid this day, the receipt whereof is hereby acknowledged, and 63 notes, of $ 20.00 each, * * * to be paid to the New Orleans Land Company, at their office No. 427 Carondelet street, New Orleans, La., on or before the 1st day of June, 1910, and each and every month thereafter until the full sum shall have been paid, together with interest at the rate of 6 per cent. per annum. * * * Party of the second part reserves the right to pay any or all of the remaining notes, herein specified, before their maturity, interest being charged from date of note to the time of its payment only.

'It consideration of the covenants and agreements hereinabove made by the party of the second part, the party of the first part agrees, when all payments have been made in accordance with the terms and conditions of this agreement, to deliver to the party of the second part a good and sufficient warranty title to the premises herein described, at a cost of $ 3.00 to the party of the second part,' etc.

There are other stipulations as to the character and positions of the buildings that may be erected, binding the 'party of the second part' for the taxes for 1910 and thereafter, etc.

Plaintiff paid the notes issued by him as thus stated, which had fallen due prior to March 23, 1914, and on that day (through counsel) wrote a letter to defendant saying that he wished to avail himself of the right, reserved in the contract, of paying the notes which had not matured, requesting defendant to designate the notary before whom the company would pass its act of sale, at the cost stipulated, have all the necessary certificates attached, showing the lots to be free from mortgage and had not been sold, and let him know the exact amount due under the contract.

On March 25th following defendant (by its secretary and treasurer) replied, saying:

'I beg to state that Mr. John Wagner, in the Exchange Bank Building, is the notary who will pass the act of sale, * * * and I will thank you to communicate with him in regard to same.'

On March 26th defendant furnished a statement of plaintiff's account showing a balance of indebtedness as follows:

Principal

$ 400.00

Interest to 6/1/14

99.20

Taxes, 1910-13

32.64

Balance in full

$ 531.84

And on June 1, 1914, plaintiff appeared before the notary, so named and, in presence of witnesses, declared that he was ready to accept title to the lots in question and pay the balance of the price, whereupon the notary tendered him a deed, together with mortgage and conveyance certificates in the name of defendant, upon which (mortgage certificate) there appeared the inscription:

'Notice of suit in favor of the Leader Realty Co., Ltd., as per order of Civil District Court No. 91.800, dated Dec....