Webb v. Gorman , 14 La. 38 ( 1839 )

. Bullard, J.,

delivered the opinion of the court.

The plaintiff asserts title to a tract of land in possession of the defendants, under a purchase from Mrs. Fletcher, the sole heir at law of Lydia Highland, who was the owner of the same, as the instituted heir of Nicholas Highland. The title Lydia Highland under the will of her husband, is clearly shown by evidence in the record, as well as the sale by her heir at law, through the agency of Stevenson, her special attorney in fact, J

The defendant derives title through one Smith, whose heirs are parties; and he relies upon a sale made by order the judge of probates, of the parish of St. Helena. That sale has been attacked as fraudulent, null and void, and the , , . . . . matter relating to the transaction was left to the jury, and we ave from being disposed to disturb their verdict, by which it was in effect treated as void. Indeed, we have * . . . ; ' rarely witnessed a transaction under color of judicial author¿ty s0 flagrantly unjust and oppressive, as .that in question. Mrs. Highland, in our opinion, so far from being bound by any warranty towards Smith, resulting from the unauthorized and irregular sacrifice of her property by the parish judge, was absent, and a stranger to those proceedings, and there is no semblance of a judicial sale.

Since the adoption of the Louisiana Code, as an amendment, and in repeal of the code of 1808, the increased value of the property at the time of eviction, is not necessarily the standard of damages to be paid by the war-rantor to the party evicted.

But it is contended on the part of the heirs of Smith, that they are not liable under the warranty for so large an amount as the jury have awarded in damages, and that the defendant is not entitled to recover of his warrantor more than the price paid-for the land, with interest, and not the increased value of the land as damages. No authority is cited in support of this position. The case of Morris vs. Abat, 9 Louisiana Reports, 552, to which, we suppose, the counsel alludes, as apparently sustaining him, does not go that extent. It is true, we held in that case, that the increased value of the property at the time of the eviction, is not necessarily the standard of damages, inasmuch as the new code had repealed the provisions of that of 1808, which appears to carry the responsibility of the warrantors that length. But the record in the case now before us, does not enable us to say that the jury erred in giving the amount they have.

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