tiffs, by said agreement, were to deliver the said mill machinery and other things on cars at Decatur, Ala., as soon as defendants could make arrangements therefor, and as soon as the roads would permit the removal of the same to the cars; and in consideration of the said bargain and sale, and of the delivery as aforesaid of said mill machinery and other things in and by said agreement, the defendants promised and agreed to deliver to plaintiffs one hundred and forty thousand feet of good merchantable lumber. * * * And by said agreement the said defendants promised and agreed to deliver said lumber on the side track of the South & North Alabama Railroad, at Flint Bridge, in said county of Morgan," at certain times, and in certain quantities. The complaint then alleges performance on the part of plaintiffs, and non-performance on the part of defendants. Plaintiffs introduced the written contract, which was under seal; proved that they had performed their part of the contract, and that the defendants had performed none of the contract, so far as related to them, and then rested.

The defendants introduced evidence tending to prove that, in negotiating for the purchase of the machinery with the plaintiffs, the plaintiffs had represented the machinery to be in good condition, and suitable for the purpose for which it was bought, which was for the purpose of running a saw-mill; that they had bought it under these representations; that after trying to use it, it was discovered that some parts were missing; that it was not in good condition, and would not do the work for which it was bought; and that they notified plaintiffs that the machinery had been misrepresented to them; "that they never expected to fire them again, and that plaintiffs could take them back;" and that the defendants then abandoned the use of the machinery, and did not use the same again, except by an arrangement made with one Patterson, who was negotiating with the plaintiffs for its purchase, and who had given the defendants permission to use it, telling them that he was going to buy it from the plaintiffs. The defendants then offered evidence to prove that the plaintiffs offered to sell the machinery to one Patterson and other parties, and that they had agreed upon the terms of purchase.

The defendants also introduced evidence to prove that the defects in the boilers were not open to ordinary observation. Defendants did not return or offer to return the machinery to Decatur.

The plaintiffs' evidence in rebuttal was in direct conflict with the testimony in behalf of defendants. On the examination of one of the defendants as witness in his own behalf, plaintiffs asked, "Were you not informed that the side track at Flint Bridge, Ala., would not be built by the railroad, before you offered to rescind ?" Question objected to. Objection overruled, and defendants excepted. The plaintiff also asked "if a side track had been put down at Flint Bridge?" Objected to. Objection overruled, and defendants excepted.

On the examination of one Ryan, an expert witness for the plaintiffs, to show that the cause of the seeming defect in the boilers was because of the improper construction of the furnace, the witness was permitted to state that he told defendants that the furnace was not properly constructed, and that they could not run the machinery in that manner, which testimony was allowed to go before the jury, against the defendants' objection; to which ruling defendants excepted. The court charged the jury, among other things, that "the defendants in this case could not utterly defeat this action on the ground of fraud, unless they returned, or offered to return, the machinery to the plaintiffs at Decatur, Ala.; that an actual delivery or offer to return the machinery to the place from which the defendants obtained the same was necessary to a rescission on the ground of fraud." To this charge defendants excepted. The plaintiffs asked the court to charge: "(1) If the jury believe from the evidence that the defendants entered into the contract for the purchase of the mill property on their own judgment, then there is no implied warranty on

the part of the plaintiffs. (2) If the jury believe from the evidence that the defendants purchased and received the articles described in the complaint from the plaintiffs, they cannot avoid the payment of the entire purchase money on account of fraud or breach of warranty, if you further believe defendants retained the same, and have never rescinded or offered to rescind the contract, unless you further believe that the articles are altogether worthless. (3) If the jury believe from the evidence that the defendants never offered to put the plaintiffs in the same condition they were before the contract of sale, then there is no rescission of the contract. "?

The court gave the charges requested, to which defendants excepted.

The defendants asked the court to charge: "(1) If the jury believe from the evidence that, after the boilers were sold and delivered, the defendants were guilty only of a mere lack of diligence in discovering the fraud, that alone would not deprive them of the right to rescind the contract. (2) If the defendants were deceived by the fraudulent statement of the plaintiffs, if any such were made, they owed the plaintiffs no duty of active vigilance in discovering whether the statements made by the plaintiffs were false as to the boilers in the case. (3) Even if the defendants did not rescind or offer to rescind the contract, they may defeat the present action altogether if they show that they have been damaged by any fraud of plaintiffs, as much or more than the actual worth of the boilers. (4) If the jury believe from the evidence that the plaintiffs practiced a fraud upon the defendants in the sale of the machinery to them, then the defendants, in setting up such fraud, are not seeking to evade the payment of an honest debt, but of a contract tainted with and vitiated by fraud. (5) The fact that the plaintiffs tried to sell the boilers to other parties, after they sold to defendants, if it is a fact, would tend to show that the plaintiffs regarded the trade as rescinded. (6) If the means of information lay peculiarly within the reach of plaintiffs, who made such representations as were made, if any were made, and they pretended to know the things they affirmed, they must be held to warrant their knowledge of the facts connected with the utility of the boilers. (7) If the jury believe from the evidence that the defendants notified the plaintiffs that the machinery had been misrepresented to them, and that plaintiffs could take them back, and thereupon the plaintiffs entered into negotiations with Patterson and others, and in fact the plaintiffs agreed with said Patterson and others to sell to them the said machinery, then the jury may look to these circumstances, with all the other evidence, to determine whether or not the contract between the parties has been rescinded; and if the jury believe from the evidence that there has been a rescission of such contract, they must find for the defendants."

The court refused to give the charges requested by the defendants, and defendants excepted.

There was judgment for the plaintiffs, and the defendants appeal.
F. P. Ward, R. W. Walker, and E. W. Godbey, for appellants.

SOMERVILLE, J. The allowance by the court of the amendment to the complaint was free from error. Upon the sustaining of the demurrer to the original complaint, based on the misjoinder of counts, all the counts except the first were stricken out in order to conform to the ruling of the court on the demurrer. The new count, added by way of amendment, was for an alleged breach of the contract sued on, and so was the first count, although its averments may have been informal and defective. These defects, if any, should have been taken advantage of by demurrer, not by motion to strike, which was properly overruled.

The circuit court, in our judgment, erred, however, in one or more of its rulings on the evidence, the effect of which must necessarily operate to reverse the judgment. It was immaterial to any of the issues in the case that no side track had been constructed on the railroad at Flint Bridge, where the

machinery in question was situated, and that the defendant Young had been informed that it would not be construucted prior to his offer, in behalf of the defendants, to rescind the contract of purchase on the ground of alleged fraudulent representations by the plaintiffs at the time of the sale. The right to rescind depended upon the fact attending the sale,-the existence or non-existence of fraud,-not on the mere motive of the purchasers in electing to assert such right.

The court also erred in excluding the testimony of the witness Patterson as to his negotiations with the plaintiffs for a purchase of the machinery after the alleged rescission of the sale by the defendants, and of the fact that the witness notified the defendant Young of this action on the plaintiffs' part. The first portion of this evidence tended to show a consent on the plaintiffs' part to the rescission, and a waiver of the defendants' duty to return the machinery to Decatur, where the sale and delivery were made. The notice to Young was material as tending to explain his conduct in using some of the machinery after the rescission by Patterson's consent. If Young had reason to believe, and believed, that Patterson had bought the machinery after he offered to return it, his continued use of it by Patterson's consent would not operate to prejudice his rights against the original vendors, the plaintiffs.

What the witness Ryan told defendants as to his opinion in reference to the alleged improper construction of the furnace was manifestly irrelevant, and should have been excluded. It was mere hearsay, within the strictest signification of the term.

The following principles will probably be a sufficient guide upon another trial. If the plaintiffs, in making the sale of the machinery to defendants, misrepresented any material fact on which the defendants, as purchasers, had a right to rely, and did in fact rely, as an inducement to the trade, this would be a fraud in the sale. If such fraudulent misrepresentation was made, the defendants would have their election to retain the goods, and abate the purchase money by proving the fraud in reduction of damages; or they could, within their option, rescind the sale. If they elected to rescind, they must have exercised the right within a reasonable time; i. e., with due promptitude from the time the fraud was discovered, or ought to have been discovered. If the right of rescission was exercised, the defendants were required to place the plaintiffs in statu quo by returning the goods to them at the place where the trade was consummated by delivery. But this feature of the rescission could be waived by the plaintiffs' giving their assent clearly and unequivocally, either expressly or by implication, to an acceptance of the goods at any other place. Whether there was such a waiver in this case, in view of the conflicting evidence, was a question for the jury. If there was no rescission manifested for sufficient cause and with proper diligence, the action could not be defeated entirely, if the facts showed a completed sale of the machinery by the plaintiffs to defendants, and the articles purchased were of any value. If they were of any intrinsic value, whether adapted to the particular use for which they were purchased or not, the payment of the entire purchase money could not be avoided on the ground of fraud, or breach of warranty.

The other questions raised by the charges have been too often discussed by us for any further consideration. We need only to refer to some of the adjudged cases in support of the foregoing propositions. Moses v. Katzenberger, 84 Ala. 95, 4 South. Rep. 237; Brown v. Freeman, 79 Ala. 406; Eagan Co. v. Johnson, 82 Ala. 233, 2 South. Rep. 302; Jones v. Anderson, 82 Ala. 302, 2 South. Rep. 911; Tabor v. Peters, 74 Ala. 90; Jemison v. Woodruff, 34 Ala. 143; Davis v. Betz, 66 Ala. 206; Sledge v. Scott, 56 Ala. 202; Bryant v. Isburgh, 74 Amer. Dec. note, 657-662; Johnson v. Evans, 50 Amer. Dec. note, 674, 675.

Reversed and remanded.

BEER et al. v. LEONARD.

(Supreme Court of Louisiana. December 5, 1888.)

1. ADVERSE POSSESSION-GOOD FAITH-PRESCRIPTION OF TEN YEARS.

Good faith and possession are not sufficient to acquire immovable property by the prescription of 10 years.

2. SAME-NATURE OF TITLE Required.

A title sufficient in form to transfer immovable property is required as the basis of prescription.

3. SPECIFIC PERFORMANCE-DOUBTFUL TITLE.

A purchaser of immovable property cannot be judicially coerced to a doubtful title.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; A. L. TISSOT, Judge. A. J. & Omer Villere, for appellant. Bayne, Denegre & Bayne, for appellee.

POCHÉ, J. The object of plaintiffs in this suit is to enforce an agreement of the defendant to purchase from them a piece of immovable property, which they hold by purchase from one Francisco Pippo, effected in August, 1881. The defense rests on the alleged deficiency of Pippo's title, and it was sustained below. It appears from the record that Pippo's muniments of titles are as follows: To one-half of the property, by purchase in the year 1871, from Joseph Spoturino, then the owner of the whole estate; and to the other half by purchase at a public sale from the succession of said Spoturino, as shown by an authentic act of sale executed in March, 1878. Met by the allegation in defendant's answer, and being aware that the projected sale of April, 1871, to Francisco Pippo, had never been signed by Spoturino, or by the notary who had drawn the same, and met also by the allegation of nullity of the proceedings which led to the sale of March, 1878, plaintiffs then pleaded the prescription of five and ten years, on which they rest their respective title to each distinct undivided half of the property. Plaintiffs' main error consists in their attempt to trace their title to the entire property to the sale made in the settlement of the succession of Spoturino. That sale was ordered at the instance of the public administrator in charge of the succession, for the alleged purpose of effecting a partition of the property admitted to belong in equal portions to Pippo and to the succession. At that sale the adjudication of the entire property was made to Pippo for $825, but, as he claimed to already own the one-half, he paid in but half of the price of adjudication, and he therefore obtained terins and in fact the transfer of but one-half of the property at the authentic sale made to him by the administrator on the 21st of March, 1878. By the very terms of that sale, and throughout all the proceedings had in the settlement of the Spoturino succession, it is undoubtedly apparent that nothing was intended to affect the status of the other half of the property of which Pippo then claimed the ownership, and of which he was in undisputed possession. His title to that half must therefore be traced to some other source, and plaintiffs are manifestly in error in their reliance on the partition sale. Conceding, therefore, as the record shows, that Pippo's succession dates from April, 1871, and that he was in perfect good title faith, the question at once presents itself whether he can acquire title through the prescription of 10 years by possession and good faith alone. The question is answered in the negative by the textual provisions of the Code which regulate that term of prescription. Article 3478 reads: "He who acquires an immovable in good faith, and by a just title, prescribes for it in ten years." Article 3479 prescribes the conditions by which such an object can be accomplished, and one of them is a title which shall be legal, and sufficient to transfer the property. Now, articles 2275 and 2440 of the Civil Code contain the requirev.5so.no.15-17

ments of title so as to effect a legal transfer of immovable property, and in substance require that it must be in writing. Barrow v. Wilson, 38 La. Ann. 209; Pattison v. Maloney, Id. 885; Hall v. Mooring, 27 La. Ann. 596. It therefore appears from the record that Pippo had no title legal in form to the half of the property of which he had possession since 1871. Plaintiff could acquire no other or better title than he himself had. Hence the defendant must be justified in refusing the title which is tendered to him. As it is herein shown that Pippo had acquired no title to that half of the property through the partition sale of 1878, it follows that the plea of prescription of five years cannot avail plaintiffs, and their failure to establish a valid title to one-half of the property obviates the necessity of discussing the status or validity of their title to the other undivided half. We note and we have duly considered the argument that the heirs of Spoturino might be estopped by the judicial admissions of the public administrator, and by other proceedings had in the settlement of his succession, from denying or contesting the alleged title of Pippo, which was therein admitted, and we do not wish to be understood as expressing any opinion on such an issue. It was incumbent on plaintiffs under the law to tender a title free of all clouds or doubts, and his purchaser cannot be coerced to accept a title suggestive of future legislation on the very face of the papers. The judgment appealed from is therefore affirmed, with costs.

STATE et al. v. MILLER.

(Supreme Court of Louisiana. December 3, 1888.)

CRIMINAL LAW-APPEAL-WANT OF CITATION.

An appeal taken from a judgment rendered in a proceeding apparently criminal will not be dismissed for want of citation to the plaintiff, who cannot be permitted to change the character of the proceedings, and claim that it is civil in its nature, to oust the defendant from an appeal taken by him as though the proceeding was a criminal prosecution, in which no citation is required.

(Syllabus by the Court.)

Appeal from justice's court, parish of Jefferson.

L. De Porter and Howe & Prentiss, for appellant. H. N. Gautier and Gervais Leche, for appellees.

BERMUDEZ, C. J. The plaintiffs and appellees complain that they have not been cited to answer the appeal, and move for its dismissal. An inspection of the record shows that the defendant was arrested, tried, and fined under a prosecution for the violation of a public jury ordinance. It is therefore apparent that the plaintiffs have impressed upon the proceedings the character of a criminal prosecution. It is possible that the defendant should not have been dealt with in that form, but at this stage we could not so hold. Surely, after giving to the proceeding the form of a criminal prosecution, the plaintiffs cannot be heard to change its character, and claim that it is a civil proceeding, in order to oust the defendant of the appeal which he has taken from the judgment against him, though true it may be that the defendant has not asked that the plaintiffs be cited to answer the appeal, and they were not cited to do so. The appeal would be dismissed for want of citation to the plaintiffs, solely if the prosecution was civil in character; but this we cannot presently decide, without looking to the pleadings, and the merits thereof, which can only be done when the motion to dismiss is overruled. If the proceeding be, as it is apparently, criminal in form and character, of course no citation would be required to the plaintiffs to notify them of the appeal.

The motion to dismiss is denied.