George v. Roach ( 1851 )

The judgment of the court was pronounced by

Slidell, J.

A lot of ground in the town of Shreveport was sold to Roach at a probate sale by George, curator, and the vendee gave his notes for the price. Being sued upon them, he resisted the action upon the ground that the succession of Sprague was without title; and claimed a rescission of the sale. There was a judgment for the defendant in the court below, and the plaintiff has appealed.

It is proved that at the date of the probate sale, the title was in a third person, from whom Roach subsequently purchased the same piece of ground. This third person, and those under whom he held, had been in possession for many years. The succession of Sprague never had possession, nor had Roach, until he received it from this third person. It is clear, therefore, that there was a failure of the consideration of the notes given by Roach.

But it is said, that Roach, having purchased the adverse title, is only entitled to be relieved from the payment of his notes up to the amount which he expended to acquire it.

In the case of Pepper v. Dunlap, we recognized the highly equitable doctrine, that when a purchaser, who has received possession from his vendor, buys afterwards an outstanding and superior title, and thus perfects and quiets the defective title and the possession which he received from his vendor, the second purchase will enure to his vendor’s benefit, so that his liability as warrantor will be restricted to the amount so expended.

But the equity cannot be invoked in the present case; for the succession never had and gave no possession, and it is shown, by the curator’s official acts, that he was aware of the outstanding title, and knew he was selling what belonged to another.

Judgment affirmed, with costs.