Vascocu's Widow & Heirs v. Pavie

delivered the opinion of the court.

Widow Yascocu alleges that under an adjudication lawfully made to her by virtue of a deliberation of a family meeting of her minor children, she had became the owner of a certain tract of land which her husband had purchased from *139the defendant in 1830, for the sum of twelve hundred dollars ; that her husband had made on said land improvements to the amount of two thousand dollars, when she was disturbed and finally evicted by one M. Boyce, in which suit she had caused defendant to be cited in warranty. She avers, that at the time of eviction the land had greatly increased in value, and prays judgment against defendant for nineteen thousand two hundred dollars, to wit: sixteen thousand dollars for the value of the land, at the time she was evicted, two thousand dollars for her improvements, and one thousand two hundred dollars for the reimbursement of the purchase money. Defendant answers by a general denial, and sets up the plea of res judicata, averring that all the just and lawful claims of the plaintiffhad been finally adjudicated upon in her call in warranty against him in the suit brought by Boyce. An amended petition was afterwards filed, to make the heirs of Yascocu parties to this suit. This contestation has been submitted to four different juries. The three first verdicts for the plaintiff were set aside, and a motion for a new trial having this time been overruled, judgment was entered up on the last verdict for the sum of ten thousand dollars, and the return of the notes given to defendant by plaintiff’s husband, which, it appears, had never been paid. From this judgment the defendant prosecutes the present appeal.

Before going into the merits of the issue joined between these parties, we must examine the plea of res judicata set up by the defendant, for, if it prevails, it must necessarily preclude the examination of the other points in the cause which have been argued at some length. In deciding on a plea of this kind,, we must see what are the matters put at issue by the pleadings. If all that the plaintiff claims in this suit could have been granted her under the pleadings, in her call in warranty, in the eviction suit brought by Boyce, and she has not appealed from the judgment rendered therein, we conceive that it is binding on her, and forms a complete bar to the present action. What did she. claim from defendant, her warrantor, in that suit 1 She demanded the price paid by her husbaud, the value of her improve-*140merits on the land, and concluded with a prayer for such judgment against her vendor, as equity, justice and law would authorize her to obtain. She was allowed in that gU¡t (-]ie prjce pa¡<j5 the value of her improvements and costs. If no damages for the increased value of the land 'were given, we must presume that none were proved, for we ° . , ‘ , ,, - . , ,. entertain no doubt that under her prayer for generaL relief, those damages could have been lawfully awarded, if by the jaw anci evidence of the case she was entitled to any. , . . , . Every requisite necessary to form res judicata between these suitors appear to exist, in this case. We have the same panjes litigating before us, in the same capacity, for the r ° . i- t same cause of action, and for the same thing. Louisiana Code, article 2265. We disregard, altogether, the appearance 0f tbe ]ie¡rs 0f Yascocu as plaintiffs iti this suit. From r the evidence it is obvious that they have no interest what-in the issue, having been divested of all their title to tjie ianc| by the adjudication to their mother, for one thousand two hundred dollars, the appraised value of the inventory ; their intervening wrongfully in the suit, cannot change the situation of the original parties. Had the present plaintiff in her call in warranty against the defendant confined her answer to a citation in warranty, accompanied with a prayer for such judgment against him as law and equity would authorise, could it be contended that upon sufficient proof being made, she would not have obtained every thing which the law authorises, a vendee who is evicted, to recover of his vendor, to wit:

1. The restitution of the price.

2. The fruits or revenues, when he is obliged to return them to the owner who evicts him.

3. All the costs occasioned either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff; and finally,

4. The damages, when he has suffered any, besides the price he has paid.

If from want of sufficient evidence a vendor obtains only a part of the rights and claims to which, the law entitles him, can he in a second or third suit claim successively the *141several kinds of relief which grow out of his contract, and of which he could not have been ignorant at the time he called his vendor in warranty 1

In a claim for a sum of money is not the plaintiff bound to claim in one and the same suit, any interest or damages arising out of the same transaction, as the principal claim 1 If he neglects to claim or prove them, (which is the same thing,) can he be permitted to harass his debtor by subsequent suits for them 1 We apprehend that he cannot. Article 156 of the Code of Practice'provides, “That if one demand less than is due to him, and do not amend his petition, in order to augment his demand, he shall lose the overplus.” A vendee calling his vendor in warranty, stands in the situation of it plaintiff, towards him, and must be governed by the same rule.

Applying, then, this rule to plaintiff’s call in warranty against defendant, if damages were not included in her prayer for general relief, she should have amended her pleadings, so as to claim them ; if they were prayed for, then it would appear that no damages were proved, and, therefore, none were granted. Upon the whole, we think that the defendant’s plea ought to have been sustained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be annulled, avoided and reversed ; that there be judgment for the defendant; and that the plaintiff pays costs in both courts.