Preston v. Keene,
39 U.S. 133 (1840)

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Preston v. Keene, 39 U.S. 14 Pet. 133 133 (1840)

Preston v. Keene

39 U.S. (14 Pet.) 133


Louisiana. A paper was executed by R.K., of the City of New Orleans, stating that the grantor, for, and in consideration of, a certain lot or parcel of land (describing it) conveyed and transferred to J.B. and S.B. all his right, title, and interest in a certain tract or parcel of land (describing it) hereby warranting and defending unto the said J.B. and S.B. all his right and title in the same, and unto all persons claiming under them. The paper called, under the laws of Louisiana, "An act of Sale" was signed by R.K., J.B., S.B., and a notary of New Orleans, and was deposited in the office of the notary. This was not "an exchange," according to the laws of Louisiana, and J.B. and S.B. did not, by accepting the transfer of the property made by the same and signing the paper, incur the two obligations imposed on all vendors by the Civil Code -- that of delivering and that of warranting the lot of ground sold to R.K. -- and did not thereby become liable for the value of the property stated in the said "act of Sale" to have been given for the property conveyed thereby.

"Exchange," according to the Civil Code of Louisiana, imports a reciprocal contract, which, by article 1758 of that Code, is declared to be a contract where the parties expressly enter into mutual agreements.

An exchange is an executed contract; it operates per se as a reciprocal conveyance of the thing given and of the thing received. The thing given or taken in exchange must be specific, and so distinguishable from all things of the like kind as to be clearly known and identified. Under the Civil Code of Louisiana, the exchanger who is evicted has a choice either to sue for damages, or for the thing he gave in exchange. But he must first be evicted, before his cause of action can accrue.

In May, 1838, in the Circuit Court of the United States for the Ninth circuit and Eastern District of Louisiana, Richard Raynal Keene filed his petition against Isaac T. Preston as executor of James Brown, deceased, alleging that, by virtue of a notarial contract, made in New Orleans, on 21 August, 1807, the said James Brown and his brother, Samuel Brown, also since deceased, became bound for a valuable consideration to convey and deliver to the petitioner a lot of ground of specific dimensions containing seven thousand two hundred square feet, situated in or upon the New Orleans or Gravier batture.

Page 39 U. S. 134

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