On the tenth of March, 1832, the widow Fort, now the wife of Charles A. Luzenberg, sold to Benjamin Story an undivided moiety of a parcel of ground, for the sum of fifty thousand dollars payahle in five years, and bearing interest at the rate of seven per cent per annum. The purchaser having been evicted of a part of the premises, under a judgment of the United States Circuit Court for the Eastern District of Louisiana, rendered in a suit brought against him by the late Edward Living-, ston, instituted an action against his vendor, Mary Luzenberg, in 1839, to be compensated for the loss of the property, the rents, costs, &c. Pending this suit, an agreement in writing was em tered into between, and was signed by, Benjamin Story and the said Charles A. Luzenberg and his wife, for the purpose of mak-. ing an amicable adjustment of all Story’s claims for and on ac-. count of the property bought, and lost by eviction. Among other stipulations it was agreed, that Thomas Banks and Peter Laidlaw should be appointed to fix the relative value of the portion of the property recovered by the heirs of Livingston; that the value thus fixed, together with one moiety of all the rents and costs paid by Story, with interest at the rate of seven per cent per annum from the date of the eviction to that of the agreement, should con.-stitute the measure of the purchaser’s claim ; and that when their indebtedness should be thus ascertained, the said Charles A, Luzenberg and his wife, should confess a judgment for the amount thereof in favor of Story, payable in fifteen equal and animal in-stalments, bearing an interest of seven per cent per annum from *253the rendition of the judgment until paid. A short time after, the defendant’s counsel, Lucius C. Duncan, Esq., called upon the counsel of Story, and asked of him to hand him his duplicate of the articles of agreement entered into between their clients, stating that his copy of the same could not be procured at that time. The paper was handed to Lucius C, Duncan. On the next morning he informed Story’s counsel that Luzenberg and his wife had become dissatisfied with him, and that he was no longer their attorney ; that he had left the agreement with them, but that he would get it back and return it to him; this not having been done, after repeated demands, a suit was brought against Duncan, claiming of him damages to the extent of $62,500, on the ground that he had converted the agreement to his own use, and refused to return it according to his promise and undertaking. Duncan, after various matters of defence, stated that Luzenberg and wife, when they employed other counsel in their suit against Story, retained in their possession all the papers belonging to the case, and, among them, the articles of agreement that he had handed to them at their request. He prayed that they might be cited to defend him in the suit, and to produce the agreement so delivered to them, and that he be held harmless. Luzenberg and wife filed separate answers pleading various matters, but both acknowledging that they had signed the articles of agreement, which they say were represented to them, by their counsel, as a mere project of an agreement, not binding on them. They both aver their readiness to answer to any suit, which Story may think proper to institute against them in relation thereto, and their willingness to produce on the trial the duplicate, from which it is admitted that their signatures had been cut off by Mrs. Luzenberg. There was a verdict and judgment in that suit for $5000 in favor of Story against Duncan, and one for the same sum in favor of Duncan against his warrantors Luzenberg and wife, which judgments were satisfied. The present action is now brought to obtain the specific execution of the agreement, the material parts of which have already been stated. The petition alleges that Thomas Banks and Peter Laidlaw have made the estimate therein contemplated, from which it appears that plaintiff’s loss on the land purchased for the portion of which he has been evicted, is $33,500, and that the *254moiety of the sum he has paid to the heirs of Livingston for the rents and the costs, amounts to $22,424, forming the aggregate amount of $55,924, for which judgment is prayed in solido, against the defendants, with interest at seven per cent per annum from the 5th of June, 1829. To this demand a peremptory exception was filed, setting up. as a bar to it the judgment in the suit against Duncan, to which the defendants were made parties, and in which the plaintiff’ obtained the sum of five thousand dollars as the value of the instrument of writing or agreement described in his petition, and alleged to have been converted by the said Duncan to his own use. From a decision of the Judge below sustaining this exception, the plaintiff prosecutes the present appeal.

A number of highly respectable authorities have heen quoted by the appellees’ counsel, in support of the well known rule, that on a recovery, in an action of trespass or trover, of the value of a specific chattel, the title to it is altered by the recovery, and is transferred to the defendant by operation of law. The maxim, solutio pretii emptionis loco habetur, belongs, it is believed, to almost every system of jurisprudence, being founded injustice and in reason, which are the bases of all laws. As far back as the year 1818 this court held, in Jourdan v. Patton, that if, for an injury done to her slave, the plaintiff recovers his full price or value, the property is transferred to the defendant on payment of the judgment. 5 Mart. 617. The principles relied on by the appellees being then incontrovertible, the question in this case appears to us to be entirely one of fact: Did the jury assess and award to the plaintiff in the suit pleaded in bar, the value of the agreement alleged to have been converted by Duncan ? From the pleadings, the evidence in the record, and all the attending circumstances, we believe that they did not, and that the damages <?f $5000 were allowed, not for the value of the instrument of writing, or of the claims which could be enforced under it, but for its temporary conversion. It is true that the Judge, in his charge, instructed them, that they were authorized by law to find a verdict against the defendants to the extent of Mrs. Luzenberg’s liability to Story under the contract. This, they properly refrained from doing, the paper having been surrendered on the trial al*255though in a state of mutilation, and the warrantors having averred their readiness to litigate their rights with the plaintiff, in relation thereto, in any suit he might think proper to institute against them. These averments were evidently intended by the defendants to mitigate the damages against Duncan, who had called them in warranty, as being in possession of, and refusing to surrender the agreement, and they produced the desired effect. But for these averments, and the production of the contract upon which the present action is brought, the jury might, and probably would have given a verdict for the whole amount of the defendants’ liability to Story, which they would have had to discharge without having the benefit of the long terms of payment, and the other facilities secured to them by the agreement. These averments may be viewed in the light of, and must have the effect of a reservation, securing to the plaintiff the right which he would not perhaps otherwise have had, of urging his claims against the defendants, under the agreement, in a subsequent suit. It is clear that it was so understood by the jury when they awarded an amount of damages, which no one at that time supposed to be an assessment of the value of the agreement, or of the claims of the plaintiff under it. The warrantors struggled to obtain a new trial, and failing in that attempt, they took a suspensive appeal. It is true that this appeal was afterwards abandoned, and the judgment satisfied; but not, perhaps, until it had occurred to them that, by the payment of its amount, they might possibly succeed in setting it up as a bar to any further claim on the part of the plaintiff. It has been held that in an action of trover for a permanent conversion, it is competent to the plaintiff to show that the damages were given merely for the temporary conversion, and not as the value of the chattel. 3 Starkie, p. 1508 and note (z) ed. of 1828. In the present instance we are satisfied, from all the circumstances of the. case, that the damages awarded were only for the temporary conversion of the contract or agreement, and that, after having made averments tending thus to mitigate the damages, and reserving, in some manner the plaintiff’s right to bring the present suit, the defendants should not be permitted to set up a plea inconsistent with such averments, and thus evade a fair investigation of plaintiff’s claims against them.

*256It is therefore ordered that the judgment of the District Court be reversed ; that the exception set up by the defendants be over-* ruled; and that this case be remanded for further proceedings. The appellees to pay the costs of this appeal.