Gusman v. Berryman ( 1880 )

Egan, J.,

delivered the opinion affirming the judgment and a rehearing was granted. On rehearing,

White, J.

The decree of separation conveyed the title of Gabriel Gusman to his wife. That judgment is res adjudicata as to the father, and a fortiori so as to his son and heir the plaintiff, and his co-heirs whose rights he acquired under the partition sale. Could he be successful in ousting his mother, he and his co-heirs would be her warrantors, and hence the doctrine quern de evictione tenet actio eundem ag'entem repellet exceptio is fatal to his pretensions. He claims that he has a new title. Grant it. His new title comes from his co-heirs, and he cannot undo as an actor that which he would be compelled to make good as a -warrantor. Even did he and his coheirs, and he through them, have a title emanating from a different source than their father, they could not be heard under such circumstances to destroy the very right they are bound to maintain. Smith v. Elliot, 9 Rob. 3; Blanchard v. Allain, 5 Ann. 367. He insists that being in community with his wife, his purchase at the partition sale was for the account of that community which not being a warrantor can be heard to attack the defendant’s title. He is the head of the community and binds it by his acts. Were defendant to be defeated, her judgment in warranty against the plaintiff would be good against the community and would be collectible from it. This fact makes obvious the fallacy by which it is sought to make the community to acquire through its head and master, and yet relieve it from the obligations necessarily resulting from an assertion by the head of the community of the title so acquired. The father of the plaintiff died only in 1873, and although his wife many years openly and unequivocally possessed the property in controversy, he made no assertion of title. It was reserved for his heir holding under him to claim after his death from the mother property which is hers by a decree binding upon the father and upon him.

The plaintiff and his co-heirs are not third persons, nor is the community between the plaintiff and his wife a third person quoad the plaintiff himself, the head and master of the community. A title good without registry as to the head of the community is likewise good as to the community.

Former decree maintained.