Municipality No. One v. Barnett , 13 La. 344 ( 1839 )

Rost, J.,

delivered the opinion of the court.

In January, 1837, the plaintiffs instituted this action to rescind a public sale of town lots, made to the defendant, by the mayor, aldermen, and inhabitants of the city of New-Orleans, on the ground that he had failed to comply with the terms and conditions of the adjudication, and that he had not signed the act of sale.

The defendant denied all the allegations of the plaintiffs, which could entitle them in any manner to rescind the sale, and averred that he had always been ready to do all which in law he was bound to do, but that the plaintiffs were in fault. He prayed to be quieted in his possession and title, and for general relief. Judgment was given in his favor, and the plaintiffs appealed.

Before the plaintiffs can maintain this action, it is incumbent upon them to show that they are subrogated to the rights of the original vendors. This is a link in their chain of title, without which they cannot proceed, and the defendant has the right to avail himself of the want of it, under his pleadings. In 1836, the corporation, of the mayor, aldermen, and inhabitants of the city of New-Orleans, ceased to exist (except for the purposes of liquidation,) and the municipal government of the city was vested in three distinct municipalities, of which the plaintiffs are one. The 15th section of the act creating this new form of government, provides that each municipality shall be the owner of the properly of the old corporation situated within its limits; and that all claims for money, rights and credits, due to t.he said corporation, shall remain in common, and when collected, be applied to the payment of its debls, under the superintendence and con- . r „ , , . . r „ , ... „ , trol or the mayor and the commissioners of the sinking fund created by that act. It is, therefore, necessary to ascertain whether, at the time of the promulgation of this act of the ... . , . ‘ „ . ° . . . , . „ legislature, the sale to the defendant continued in force; if before that time the defendant had made a valid retrocession of the lots, they would belong to the plaintiffs, as all other town property situated within their limits, and an action could be maintained for the property and the possession of them : but, if the effects of the adjudication continued till , • ii, • , , ,• • , that time, the old corporation had nothing against the defendant, except a claim for the purchase money, which, according to the provisions of the aforesaid act, was for a particular purpose, together with all the rights of action incident thereto, vested in the mayor and the commissioners of the sinking fund. If, in the last alternative, after the new law went into operation, the defendant failed to pay, or to comply with any conditions of the contract, that contract might be rescinded, but the right of action would belong exclusively to the mayor and commissioners. The party who has . , , . r J . „ power to remit the price, can alone maintain an action for the rescission of the sale.

The property owned by the New-Orieans at I'™6 of ils division into municipalities, munhfpa/itv 1 in w,”oh is proceeds of all money,la'eight's credits due ^ it at that time, can only be sueTfbr by the mily01’atld °?™- sinking fund, tain lotssituated ñ"cipaiftySt^“¡ sold by the cor-Sefendantf* bet oTthé^ci'y^but the terms of sale not being fully complied with or payment made, this mu-maintain an action for the rescission of the sale, and get back the lots. This right can only be exercised by the mayor and commissioners. An act for the retrocession of certain property, signed only by the purchaser, is not binding, and has no force on the seller, until accepted by him in some legal manner.

The plaintiffs have shown a resolution of ihe old city council, passed on the 30th October, 1835, authorizing the mayor to accept horn the defendant, and other purchasers of town property, who had not complied wilh the conditions of the sale, a retrocession and relinquishment of all the right, title and privilege, which they had acquired to the said property by the sale and adjudication. They have also given in evidence, a paper dated in December, 1835, signed by the defendant, and purporting to be a notarial act between him and the mayor, containing a retrocession and relinquishment, in conformity with the aforesaid ordinance; that paper is not signed by the mayor and the notary, and is not attested by witnesses.

If the date of a purchaser’s signature to an act of retrocession be proved, it is a mere pol-licitation, until signed or accepted by the other party, and ceases to have any effect the moment his capacity to accept is taken away.

The plaintiffs have argued in this court, that this act of the defendant is binding upon him, and that the institution of this suit is a sufficient acceptance of it on the part of the plaintiffs; but there are many satisfactory answers to this argument:

I. Although the signature to the act is proved, the date is left uncertain, and that uncertainty cannot be supplied by us.-

II. The suit cannot be considered as an acceptance of a retrocession, because the averments in the petition are inconsistent with the fact that a retrocession existed ; an action of rescission, necessarily, pre-supposes a contract to be rescinded.

III. The signing of that act by the defendant, if its date had been proved, was a mere pollicitation, which ceased to have any effect at the expiration of the charter of the former corporation in 1836. Louisiana Code, article 1804.

IV. When the former corporation ceased to exist, the condition of the parties to this suit was fixed, and the plaintiffs have never had since, capacity to accept the retrocession. The defendant owes a sum of money, which the mayor and commissioners of the sinking fund, are alone entitled to receive.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed with costs.