SMITH vs. CORCORAN ET ALS., 7 La. 46

Bullard, J., delivered the opinion of the court. This is a petitory action, in which the plaintiff sets up title to a tract of land, of four hundred arpents, in possession of the . defendant Corcoran, who cites Mooney as his warrantor. The plaintiff exhibits as his title, a complete grant from the Spanish government to Maria Kelsey, and a conveyance from the grantee to him. The defendants hold, under a sale by the state treasurer for state taxes, alleged to be due by the plaintiff, a non-resident.

The tract was sold as containing six hundred and forty arpents, bought in by Mooney, and by him conveyed to Corcoran, for the price of four thousand dollars. Without an asS(iSSQ16Ilt OI <t state tax, the of-rant orauthority dents’1 n°n"iand therefor, and pensabie to mate under^ooiiectaxes Sal° f°r The recitals in t!>eJ.tr,eas'?re^’f deed to land sold for taxes, are not wa's'iegaiiy assesasséssment^was not within his cognizance. if, m case of of'the thing,Püíe sale is not can-celled, the value of the evicted reimbursed,t0»ctímate8 proportionabiy to the total price ofilie sale.

As between the plaintiff and the original defendant, the Qnby, qUeshon relates to the validity of the alienation for taxes by the state treasurer. Without considering sundry bills of exception, taken on the trial, our attention is drawn to one point, on which the case A ^ must turn. No assessment of a state tax is shown; and this court has already decided, that an assessment is indispensable to nla^e out a vabd title, under a collector’s sale for taxes, Without it, the officer has no warrant or authority to sell Nancarrow vs. Weathersbee, 6 Martin, N. S. 347.

Even supposing that the recitals in the treasurer’s deed, 0U^bt to be taken as true, so far as they relate to what he did, or was within his knowledge, as contended by the counsel for the defendant, the fact of the assessment was not of his cog-. , , , ° nizance, nor could he know that the List returned to him, conformed to the assessment rolls. The rolls are of public record, ^ie Pai’ish where the land is assessed, and may easily be produced or accounted for. The fact that this sale was made by the treasurer, and not by the parish collector, does not alter the principle.

As relates to the taxes due by non-residents, both the sheriff and the treasurer are collectors; the latter only, in failure of the sheriff to collect, and when it becomes necessary to resort to coercive measures. The judgment in favor of the plaintiff, appears to the court, supported by the law and evidence.

As between the defendant Corcoran, and his warrantor, it is contended that it ought to be reversed, because it is erroneous in decreeing Mooney to pay back the whole price, when his vendee is only evicted of a part of the land, and in awarding damages against him, when none were proved to have been sustained; and that the warrantor sold and warranted a tract of six hundred and forty arpents; and his vendee in this suit, is evicted of four hundred arpents only. r J t “If in case of eviction of a part of the thing, the sale is not cancelled, the value of the evicted

part is to be reimbursed to the buyer, according to its estimate, proportionably to the total price of the sale.” La. Code, art. 2490. Evidence, of-a“^|enütyp“/a tract of land, and in its deseriprejected1*as^superftuous, when identity is ad-milted in the l’lea<UnS'3- Under the pray-1“'iie?I'silte(iCrto P1®.natur® ™d ca^°e the Suwii“enderCSuch judgment as would lie given in a new suit, to J¡™ul ciraiIlyoi actions.

But it is insisted, that this case ought to be remanded for trial, before another jury, because evidence was rejected, by the court to the prejudice of the warrantor; and our attention is drawn to a bill of exceptions, taken by him. It appears, that his counsel offered witnesses, and other evidence, to prove that Peter Smith had but one tract of land, in the Parish of East Feliciana, in 1824; and further, to prove the true boundary of Smith’s land, and to explain errors in the description of boundaries, in the deed to Corcoran. The evidence was rejected by the court. We think the court did tv* , , , not err.

If the evidence was ottered, to prove the identity of the land sold for taxes, with that claimed in this suit, it was wholly superfluous, because that identity is admitted by the pleadings. If the object was to prove any thing against, or beyond the contents of the act, it was inadmissible. All the parties admit, that the tract of land sued foi;, is the same that was sold for taxes, and afterwards conveyed by Mooney to Corcoran, as a tract of six hundred and forty arpents.

Although the eviction, technically speaking, may . be only partial, yet here seems to be a total failure of title, on the part of the warrantor, shown by himself, for the whole,. amount. . a case that provision of the code, which authorises the buyer to demand the rescission of the contract, when the part evicted is so considerable, that it is not to be presumed he would have bought, without the part evicted. La. Code, art 2487. The only difficulty which has occurred to us, was a doubt whether the pleadings would justify such a judgment.

On examining the record we find, that Corcoran in his answer, prays that Mooney may be cited in warranty; and in case the plaintiff should recover the land, that he may be condemned to refund the purchase money and damages; and he concludes, by praying “for all such further and other relief, as the nature of the case requires, and your honor shall be This is in the nature of an original suit, ° 3 pleased to decree/ and the most general prayer for relief.

If we were to reduce the amount recovered against the warrantor, to twenty-five hundred dollars, proportionably to the part evicted, we should reserve to the buyer, his right to have the sale cancelled in another suit, according to the provisions of the code. Under the prayer for general relief, suited to the nature and justice of the case, we think ourselves authorised to render such a judgment, as would be rendered in a new suit, and to avoid a circuity of actions. no^CTidence6óf damages having none c^be'ri covered against' ,a warrantor.

The record furnishes us with no evidence of damages having been sustained, and none can therefore be recovered against the warrantor. La. Code, art. 2482. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and proceeding here to give such judgment, as ought in our opinion to have been rendered below, it is further ordered, adjudged and decreed, that the plaintiff recover, and be put in possession of the tract of land, described in his pitition, with costs.

And it is further adjudged and decreed, that the defendant Corcoran, recover of his warrantor, James Mooney, the sum of four thousand dollars, together with all the costs of this suit, in the District Court, that the sale of Mooney to Corcoran, of the land in controversy, be cancelled and annulled, and that the appellee Corcoran, pay the costs of the appeal.