Landry v. Poirier , 1914 La. App. LEXIS 42 ( 1914 )

His Honor, JOHN ST. PAUL,

rendered the opinion and decree of the Court, as follows:

After careful consideration we do not think that' plaintiffs herein should be dismissed without a hearing on the merits.

Their petition alleges that plaintiff’s ancestor purchased of defendant’s ancestor “a certain sugar plantation described as follows:”

1. A tract of land established as a sugar plantation, etc.

2. A portion of land situated in the rear of the above plantation, etc.

3. A portion of land situated in Section 49, Township 12, Range 15 East, containing 123 acres.

That “it was plainly the intention of the parties * * * to dispose of one continuous and contiguous tract of land. ’ ’

That (in effect) the 123' acres last mentioned lie in' the east part of the north half of said Section 49.

That defendants, the heirs of the vendor, own all the rest of the lands in the north half of said Section- 49.

That the boundary line between the said 123 acres and the rest cf the north half of said Section 49 has never been fixed.

And they pray that said boundary be surveyed and laid out.

If these allegations be true and can be supported by the proper evidence, they show in our opinion a deed translative of the property to a definite body of land having a physical identity of its own, and of which the 123 acres last mentioned once formed an integral part.

If the limits of this physical tract of land have never been established or have been obliterated by time plaintiffs are entitled to have said limits defined, or restored, if it can be done. And there is evidence in the record, offered by defendants themselves, which may perhaps show that this not only can but actually has been done at one time, at least partially (see Sheriff’s deed).

What other effect such evidence may have, we do not now consider, that being a matter concerning the merits of the case.

Moreover we think this disposition of the case more in accord with the equitable spirit of the civil law, which has never favored, the doctrine “caveat emptor” and -its consequences, but declares that any ambiguity.in the sale. shall be construed “against the vendor.” (C. C., 2474.)

It is therefore, ordered that the judgment appealed from be reversed and set aside, and the cause remanded for furl her proceedings according to law.

Opinion and decree, March 23rd, 1914. Rehearing refused, April 20th, 1914. Writ granted, June 9th, 1914 [135 La., 731].