Bankston v. Owl Bayou Cypress Co.

Citations

• 117 La. 1053
• 42 So. 500
• 1906 La. LEXIS 817

Syllabus

<p>1.Vendor and Purchaser — Resolution of Sale.</p> <p>To succeed in an action for a resolution of a sale of real estate for nonpayment of the price, the situation must be such that judgment in the action will bring about a restitutio in integrum; otherwise, the demand should be rejected.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 178.]</p> <p>2. Same — Parties.</p> <p>Where a married man sells community property during his marriage, and his children, after his death, seek to dissolve the sale for nonpayment of the price, the widow in community is a necessary party to such a demand. If she has by her actions and admissions estopped herself from seeking to dissolve the sale, the whole action falls.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 178.)</p> <p>3. Same — Answer — Relief Against Codefendant.</p> <p>Where the widow in community is made a codefendant by the plaintiffs in a suit to dissolve the sale, she cannot, by her answer in the case, inject into the case a new cause of action against her codefendants.</p> <p>4. Husband and Wife —Community Property-Relief of Survivor.</p> <p>The widow in community cannot set up that she has acted in error or been defrauded to the prejudice of third parties, who in good faith have acted on the strength of her actions and declarations. She cannot repudiate the actions and allegations of the counsel employed by her, unless she does so under oath.</p> <p>5. Petitory Action — Action of Nullity — Collateral Attack.</p> <p>Plaintiff, in ¿ringing a petitory action, is not necessarily forced to cumulate therewith an action of nullity to set aside judicial proceedings in which apparently his title to the property has been divested. He has the right at his own risk to allege such proceedings to be absolute nullities and to go to trial on that issue; but, if the proceedings are not void. _ he is thrown back upon his original remedies. In the presen