FLETCHER'S HEIRS vs. CAVELIER ET AL., 10 La. 116

Bullard, J., delivered the opinion of the At the August term, 1832, judgment favor of the plaintiffs, for three undivided fou in controversy, but the case was remanded to ascertain the value of the improvements, &c. and it was ordered that no execution should issue for the plaintiffs until they shall have paid the value of the improvements. 4 Louisiana Reports, 266. On these questions of the value of the improvements and fruits, a jury having pronounced on the second trial and judgment being rendered accordingly, the plaintiffs again appealed after soliciting in vain a new trial in the court below.

A careful examination of the evidence has failed to convince us that the complaints of the appellants are well founded, as to the amounts found by the jury. The obligations of the war-rantor depend on the law in force at the time of the sale. According to the provisions of the Civil Code, 354,

article 57, the seller is bound on the eviction of his vendee, to pay the augmented value of the property, above the price of the sale. The original price added, to the " rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested. The warrantor is not to be called on to reimburse, until the judgment of eviction has had its effect against theparty evicted. But, it is urged, that the court erred in decreeing that an execution might issue against the plaintiffs, if ■within sixty-days the estimated value of the improvements was not paid by them.

The argument of the appellants on this point, rests on the hypothesis that the plaintiffs are entitled at once to all the rights and actions of a joint owner, as soon as the question of title to an undivided part was determined in their favor, and that they could require a sale of the whole tract of land and an adjustment of the improvements and fruits as incidental to that proceeding.

But it must not be overlooked that this is a petitory action, and the defendants are entitled to be maintained in their possession of the whole, until the value of the useful improvements is paid by the plaintiffs in proportion to the part recovered by them. Nor were the defendants bound to remain in a state of indivisión with the plaintiffs and to be kept in constant suspense as to their ultimate rights, as well as their recourse in warranty, for an indefinite period of time at the discretion of the plaintiffs.

The counsel of the vendors, cited in warranty, complains of the judgment rendered against them in favor of the defendants, on the ground that they are not liable to pay more than three fourths of the price received by them, together with the rents and profits. The obligations of the warrantors depend on the law in force at the time of the sale, and according to the provisions of the Code then in force, the seller was bound on the eviction of his vendee to pay the augmented value of the property, above the price of the sale. Civil Code, page 354,

article 57. It is therefore clear that the original price, added to the rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested. It does not appear to us that a greater-amount has been awarded to the defendants, in the event of eviction, than the law would justify. But we are of opinion, that no execution ought to issue against the warrantors until the eviction pronounced by the judgment in favor of the plaintiffs, shall have its effect. It was so ruled by this court in the case of Malancons Heirs vs. Duhamel, 7 Louisiana Reports, 286.

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