$230,000, and the price paid was only $500. But it appeared that the plaintiff's interest in it depended on a defect in her acknowledgment of the deed by which it had been granted to the said third persons. This defect might render the deed void in law, but legal opinion was divided on the question whether or not it was material. It was held that the contract was hazardous and the price not so inadequate as to warrant a rescission of the sale."" § 176. Louisiana Law; Lesion Beyond Moiety.-According to the law and practice in Louisiana, a vendor of real property may obtain rescission of the sale on showing that the consideration which he received was less than half the value of the property. The principal provisions of the Code relating to this subject are as follows: "Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy given for this injury is founded on its being the effect of implied error or imposition, for in every commutative contract equivalents are supposed to be given and received. The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts on account of such implied error or imposition, except in the two following cases: (1) in partition, where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one of the parties; (2) in sales of immovable property, the vendor may be relieved if the price given is less than one-half of the value of the thing sold, but the sale cannot be invalidated for lesion to the injury of the purchaser. Lesion can be alleged by persons of full age in no other sale than one of immovables, in which is included whatever is immovable by destination." And again: "If the vendor has been. aggrieved for more than half the value of an immovable estate by him sold, he has the right to demand the rescission of the sale, even in case he had expressly abandoned the right of claiming such rescission, and declared that he gave 95 Pennybacker v. Laidley, 33 W. Va. 624, 11 S. E. 39. 98 Rev. Civ. Code La., arts. 1860-1862. to the purchaser the surplus of the thing's value. To ascertain whether there is a lesion beyond moiety, the immovable must be estimated according to the state in which it was, and the value which it had, at the time of the sale. If it should appear that the immovable estate has been sold for less than half its just value, the purchaser may either restore the thing and take back the price which he had paid, or make up the just price and keep the thing. Should the purchaser prefer to keep the thing by making up the just price, he must pay the interest on the additional price from the day when the rescission was demanded. If he chooses rather to restore the thing and to receive the purchase money, he shall be liable to restore the fruits of the estate from the day of the demand, but the interest of his money shall also be paid to him from the same time. The rescission for lesion beyond moiety cannot take place in favor of the purchaser. Rescission for lesion beyond moiety is not granted against sales of movables and produce, nor when rights. to a succession have been sold to a stranger, nor in matter of transfer of credits, nor against sales of immovable property made by virtue of any decree or process of a court of justice." "7 Provision is also made for rescission in the case of an exchange of properties, as follows: "Rescission of the contract on account of lesion is not allowed in contracts of exchange, except in the following cases: The rescission on account of lesion beyond moiety takes place when one party gives immovable property to the other in exchange for movable property; in that case the person having given the immovable estate may obtain a rescission if the movables which he has received are not worth more than the one-half of the value of the real estate. But he who has given movable property in exchange for immovable estate cannot obtain a rescission of the contract, even in case the things given by him were worth twice as much as the immovable estate. Rescission on account of lesion beyond moiety may 97 Rev. Civ. Code La., arts. 2589-2594. And see Girault v. Feucht, 120 La. 1070, 46 South. 26; Bonnette v. Wise, 111 La. 855, 35 South. take place on a contract of exchange, if a balance has been paid in money or immovable property, and if the balance paid exceeds by more than one-half the total value of the immovable property given in exchange by the person to whom the balance has been paid; in that case, it is only the person who has paid such balance who may demand the rescission of the contract on account of lesion." 98 In bringing suit for rescission under these statutory provisions, it is not necessary to allege fraud," and even if the plaintiff, in addition to the proper and necessary averments, charges that he made the sale through mistake and ignorance of the value of the property, or by reason of misrepresentations of the defendant, this does not change the character of the proceeding. 100 But a plaintiff cannot ask rescission of a sale both for lesion beyond moiety and for nonpayment of the price, as these demands should not be cumulated in the same action.101 And to avoid a sale for lesion, the inadequacy of the price must be clearly established by strong evidence.102 A sale which is understood by the parties at the time to be merely a redemption of the land by the purchaser, and the extinguishment of a contested claim to it, cannot be rescinded for lesion.103 And where one buys an absentee's land at a forced sale for a small sum, and afterwards sells it back to him for a much larger price without warranty, he cannot complain of lesion.104 So where, on a sale of land acquired by tax title, the vendee assumes all taxes due, some of which were as sessed against the vendor, if the amount of taxes assumed, added to the price agreed on, equals the value of the land at the time of the sale, the vendor cannot maintain an action 98 Rev. Civ. Code La., arts. 2664-2666. 99 Belcher & Creswell v. Johnson, 114 La. 640, 38 South. 481 100 Ware v. Couvillion, 112 La. 43, 36 South. 220. 101 Copley v. Flint, 16 La. 380. 102 Bossier v. Vienne, 12 Mart. (La.) O. S. 421; Agaisse v. Gued ron, 2 Mart. (La.) N. S. 73; Riviere v. Boissiere, 5 La. 382; Shreve port Rod & Gun Club v. Caddo Levee Dist. Com'rs, 48 La. 1081, 20 South. 293. 108 Copley v. Flint, 16 La. 380. 104 Copley v. Flint, 1 Rob. (La.) 125. Ann for lesion.105 Finally, the right of action for lesion beyond moiety does not extend to a third person buying from a purchaser who obtained the land at an inadequate price, where such third person acted in good faith and paid a fair price therefor, although he had knowledge of the inadequacy of the price given on the first sale.106 105 Martin v. Delaney, 47 La. Ann. 719, 17 South. 264. 106 Morgan v. O'Bannon, 125 La. 367, 51 South. 293; Bradford's Heirs v. Brown, 11 Mart. (La.) O. S. 217. BLACK RESC.-30 CHAPTER VII DEFICIENCY IN QUANTITY OR QUALITY 177. Right of Rescission in General. 180. Deficiency in Number or Quantity of Articles Contracted For. 181. Defect in Quality as to Installment or Portion of Goods Purchased. 182. Sales by Sample. 183. Sale "With All Faults." 184. Inspection or Testing to Determine Quality. 185. Breach of Warranty. 186. Same; Seller's Fraud or Knowledge of Unsoundness. 187. Same; Agreement for Return if Defective. 191. 192. 193. Same; Warranty of Fitness for Prescribed Use. 194. Offer or Opportunity to Make Good Defect. 195. Acceptance and Use of Defective Article. § 177. Right of Rescission in General.-When property is delivered in pursuance of a contract of sale, and the buyer finds that it is different from that which he contracted for and therefore unsuitable for his purpose or unsatisfactory to him, or that it is inferior in quality or short in quantity, he has the privilege of refusing to accept the property or of returning it to the seller, and thereupon of rescinding the contract entirely. More especially is this the case where the purchaser was induced to buy by false and fraudulent representations concerning the quality of the goods.2 If, 1 Buettner v. Samuels, 163 Ill. App. 139; Starks v. Schlensky, 128 Ill. App. 1; Fairbanks, Morse & Co. v. Walker, 76 Kan. 903, 92 Pac. 1129, 17 L. R. A. (N. S.) 558; Hawkins v. Brown, 3 Rob. (La.) 310; Cutler v. Gilbreth, 53 Me. 176; Monarch Metal Weather-Strip Co. v. Hanick, 172 Mo. App. 680, 155 S. W. 858; Henry Kupfer & Co. v. Pellman, 67 Misc. Rep. 149, 121 N. Y. Supp. 1081; Collins v. Brooks, 20 How. Prac. (N. Y.) 327; Estes v. Kauffman, 44 Pa. Super. Ct. 114; Jesse French Piano & Organ Co. v. Costley (Tex. Civ. App.) 116 S. W. 135. Contra, see Hoadley v. House, 32 Vt. 179, 76 Am. Dec. 167. 2 Cushman v. De Mallie, 46 App. Div. 379, 61 N. Y. Supp. 878. |