MADISON, F. M. C. vs. ZABRISKIE, F. M. C., 11 La. 247

Bullard, J., delivered the opinion of the court. This is a petitory action, in which the plaintiff asserts title to a lot of ground in St. John street, in the faubourg St. Mary,'under a sale from John Gravier. The defendant sets up title under a sale from one Thomas Smith, who, he alleges, purchased it from the present plaintiff, but that in the, conveyance -it was erroneously described as a lot in Common street, whereas the plaintiff had no lot in Common street, and that Smith and himself have, since 1828, possessed as owners with the knowledge of the plaintiff.

An act of sale of immovable property is valid, iflegallyproved, when it is made single, and only signed by the vendor. The acceptance by the vendee may be proved aliunde. The signature to a written instrument or act of sale, is valid when made by affixing the ordinary mark oí the party, if it is proved by the subscribing witnesses, or other legal evidence. Parole evidence cannot he received to prove something different from what is contained in the written act of sale.

Jo require the vendor to allow that a sale of S’nCoJñmoníiiwí' a® specified in the written act, was intended 0lf property m St.John street, bcresciwiingthe „ first contract, but substituting . a out'anj^wrltten evidence whatever. The defendant in his answer further demands, if it should be decided that, owing to said error in description, he is not entitled to the property he has possessed in St. John street, then the plaintiff be condemned to deliver him possession of such lot in Common street, or in default thereof, pay him fifteen thousand dollars.

There was a verdict and judgment for the defendant, and the plaintiff appealed. On the trial the defendant offered in evidence a private act of sale, under mark ordinary, of the lot in question. Its introduction was opposed on the ground that it was not signed by the party, as the code requires such acts to be ; that it was incomplete, being signed only by one of the parties, and that its execution was not duly proved. We think the court did not err.

The acceptance of the sale by the purchaser might be proved aliunde, and its execution appears to have been sufficiently established by the testimony of the subscribing witnesses to permit it to go to the jury, according to the principles recognized by this court in the case of Tigiasco vs. Molinari’s heirs. 9 Louisiana Reports, 512. The plaintiff’s title to the lot in question is incontestable, unless he parted with his right by the sale to Smith. That sale was of a lot in Common street, whereas the lot purchased by the plaintiff from Gravier, is situated in St. John street.

But it is strenuously contended that here is an error, which falls on the substance of the thing, and it is manifest the vendor intended to sell his lot in St. John street, inasmuch as he owned no such property in Common street. The defendant seeks to prove by parole, something different from what is contained in the written act. He asks us to do , . , -11 , , „ something more than rescind that contract, on the ground of error or fraud: he requires us to substitute a new contract in the place of it, to wit: a sale of the lot in St.

John street, , , , ..... „ , to which there is no legal evidence of any assent on the part of the vendor. Admitting that the evidence is sufficient, that the plaintiff sold what did not belong to him, we cannot supply his consent to a contract, totally different., and make a new contract for the parties, particularly for land, without any written evidence whatever; nor is this such a latent ambiguity as may be explained by parole. Nothing is shown to raise such ambiguity, except the testimony of some of the witnesses, that they never knew the plaintiff ’ J x to own any lot in Common street.

Although the evidence bi the case might be sufficient to show error on the part of purchasers, so as to authorize the rescission of the .... ... . . . . . sale, it is, in our opinion, incompetent to show title m the defendant to the lot sued for.

The purchaser cannot demand a rescission of the sued by the ven-perty.01 He” is toYhe^aeüoifof warranty, and not to any action of nullity or re-“i“ the thing to the vendee, and who sold the same rj')-le demand of the defendant in reconvention, that the plaintiff be condemned to deliver him a lot, according to his act of sale, or pay damages, cannot be supported in this case. ^he vendee of Smith has no direct action against the present plaintiff; he is subrogated only to the action of warranty, in r . . ° - relation to the lot in Common street, and not to any action of nullity or rescission, or to recover damages for failing to deliver the thing sold by that contract. ° ^ It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be reversed, and that ours be for the plaintiff, that he recover the lot of ground described in the petition, with costs in both courts.