LYLES vs. MARTIN ET ALS.

APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE THEREOF

PRESIDING.

Where a party enters into a contract for the purpose of avoiding litigation, based on full confidence in words told him that "illegitimate children could claim the succession of their mother as forced heirs," the party acts under error of law, for which the contract cannot be rescinded.

This suit was brought to rescind a contract by which the plaintiff had released all her claims upon certain slaves. The plaintiff sought also to recover the slaves as the forced and only heir of her deceased daughter. The defendants were the natural children of the plaintiff's daughter.

The defendants pleaded a general denial. The cause was tried and a judgment rendered for the defendant. The court considered the case as governed by the 1840th article of the Louisiana Code. The plaintiff appealed.

MARTIN, J. delivered the opinion of the court.

The plaintiff claimed the rescission of a contract made under the following circumstance.

The defendants are the natural children of her daughter, on whose death she made a contract, by which she recognized them as the natural children of their deceased mother, and stated that she and they had, for the sake of avoiding litigation, compromised and made a transaction with regard to certain slaves left by the plaintiff's daughter, and their issue, by which the descendants, in their capacity of heirs to the deceased, ceded to the plaintiff the usufruct of two of the slaves during her natural life, and she renounced all her right to the remaining slaves, ten in number, in favor of the defendants, as natural children and heirs of her daughter. The rescission was asked on the ground, that at the time of this contract, she had no other property, and therefore, it

EASTERN DIS.

February, 1833.

LYLES vs.

MARTIN ET ALS

LYLES vs.

EASTERN DIS. was void as a donation. Further, that there was such an error February, 1833. in the cause and consideration of the contract, that it was null and void; Louisiana Code, 1818, 1827; it having been MARTIN ET ALS falsely represented to her that the defendants, as natural children, were the forced heirs of her daughter, and would, in that capacity, recover all the slaves.

Where a party

enters into a con

There was judgment in favor of the defendants, and the plaintiff appealed.

The contract, the rescission of which is sought, was entered tract for the pur- into in 1830, and must be regulated by the new Code. The

pose of avoid

ing litigation, ba- error, under which it is alleged the plaintiff labored, was

sed on full confi

dence in words

legitimate chil

told him that "il one of law if any error there was, viz: that the defendants, dren could claim the illegitimate children of her daughter, could claim the their mother succession of their mother, as her forced heirs.

the succession of

as

forced heirs," the

party acts under error of law,

The petitioner avers in the petition, that "her only object for which the con- or motive in making said contract, was for the purpose of

tract cannot be

rescinded. avoiding litigation, respecting the title of said slaves; they being claimed by the defendants, in their supposed quality of heirs to their mother."

The Code expressly provides, that a contract made for the purpose of avoiding litigation, cannot be rescinded for error of law, art. 1840, sec. 2.

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

Morgan, for appellant.

Ogden, for appellee.

BOURGUIGNON vs. DESTREHAN.

APPEAL FROM THE COURT OF THE FIRST DISTRICT.

The pendency of another suit between the same parties, for the same object, growing out of the same cause of action, instituted previous to the present suit, will not be noticed by the court, unless specially pleaded.

The vendor of land, who conveys by a bad title, cannot be considered a trespasser, if his vendee is suffered to remain in possession long enough to acquire the right of possession.

Such a vendor is not liable, after his vendee has acquired the right of possession, for the rents and profits received by the latter.

The plaintiff claims of the defendant the sum of fifteen thousand dollars, for the rents and profits of a certain piece of ground, and for expenses incurred in obtaining possession.

The petition shows the plaintiff to be the owner of the ground. The defendant had illegally taken possession, which was restored by a judgment of the court in a former suit. The plaintiff had been deprived of possession for about seventeen years.

The defendant pleaded the general denial and prescription. On the trial the case was submitted to a jury who returned a verdict in favor of the plaintiff, for five hundred and forty dollars. A new trial was granted to the defendant on the ground that the verdict was contrary to law and evidence. On the second trial the jury found for the plaintiff for fifteen hundred dollars. A new trial was granted, and the third: jury found for the defendant. A new trial was then refused and the plaintiff appealed.

PORTER, J. delivered the opinion of the court.

The petition states, that the defendant had taken possession of property belonging to the plaintiff, which he refused

EASTERN Dis.
February, 1833.

BOURGUIGNON vs. DESTREHAN.

5L 115

50 259

February, 1833,

EASTERN DIS. to give up; that at last suit was brought against him, and by a decree of this court he was ordered to restore possession.

BOURGUIGNON vs.

DESTREHAN.

The pendency of another suit be

It further alleges, that although the petitioner has been put in possession, yet he has suffered damages to a large amount for the space of seventeen years; that he has been deprived of his property, and that he also sustained great expense in carrying on the petitory action he was compelled to resort to. The sum total of the damages is averred to be fifteen thousand dollars, and judgment is prayed for that

amount.

The answer contains a general denial, to which was afterwards added the plea of prescription.

The case has been before three juries. The first found a verdict in favor of the plaintiff for five hundred and forty dollars; a new trial was granted, and the second jury estimated the damages at fifteen hundred dollars. This verdict was also set aside by the court, and the case again submitted to the country. The last jury found a verdict for the defendant, and the judge approving it, gave judgment accordingly. The plaintiff appealed.

The case has been submitted to us without argument, or without any points to direct our attention to the matters which the parties might suppose were really in controversy.

In looking into the record, it appears that damages were attempted to be proved on two grounds. The first, a trespass committed by the defendant's cattle on the premises of the plaintiff; and second, the rents and profits of the property formerly in dispute, during the whole time it was possessed by Boudousqué who was the vendee of the present defendant.

The pleadings in the former action have been given in tween the same evidence in this, and on recurring to them we see that Bou

parties for the

growing out of the

tion, instituted

previous to the

present suit, will not be noticed by

same object and dousqué, the party in possession, and Destrehan, against same cause of ac- whom this suit is brought, were both made parties to it, and after a very attentive consideration of what was asked for the court unless then, and what is demanded now of the defendant, it is our specially pleaded. opinion that the very same matters are put at issue in both actions. In the first case, judgment has been given for the

February, 1833.

BOURGUIGNON

land, but the question of damages is yet undecided. We do EASTErn Dis. not, therefore, see precisely the grounds on which this action could be maintained, if the pendency of that first brought, had been pleaded in bar; as it is not, we are compelled to go into the merits.

The second ground on which the damages are claimed, presents the question as to the responsibility of the defendant in this form of action, for the rents and profits of the land during the time it was in possession of Boudousqué, his vendee. The court below charged the jury he was not responsible, and the plaintiff excepted to that opinion. The question is somewhat novel, for we do not recollect having ever before seen such a suit brought in our courts. The only grounds on which we can conjecture it was supposed the responsibility of the defendant could be maintained, were, that the vendee was a trespasser, and that the vendor under whose permission he entered into possession was also one. If the first proposition were true, then perhaps the other^ would follow, it being a familiar doctrine of our law, that if A commits an illegal act by command of B, they are both considered as actors in the infliction of the injury, and are both liable for the consequences which may flow from it.

vs. DESTREHAN.

The vendor of land who conveys

by a bad title,can

not be considered

vendee is suffer

possession long

enough to acquire

the right of possession.

But after the best consideration we have been able to bestow on the case, we are of opinion that the vendor of land who conveys his right in it to another, although his title a trespasser if his be a bad one, cannot be considered as a trespasser, and sub- ed to remain in ject to the responsibility of one, if his vendee is suffered to remain in possession long enough to acquire the right of possession. It is true, trespass may be committed on land, but in order that the interference, injury, or act, may amount to such, it is essential that the right of possession in another be disturbed. The action of réintégrande in the civil law, by which possession is restored, and damages given for the injury inflicted by the trespasser is confined to the party having the right of possession. At common law, the ground of the action of trespass on land, is the injury to the possession. Pothier traité de possession, nos. 114 and 115. Kent's Commentaries, ed. 1832, vol. 4, 120. By our law, however, if the party ille