1 Mart. (N.S.) 456 | La. | 1823
delivered the opinion of the court. The dispute between the parties in this action, has grown out of a purchase, made by the defendant, from one of the co-heirs of the plaintiff, of a tract of land of three and a half arpents front, on the bayou Carancro, with the depth of forty-two, it being a part of a tract ten arpents front, with the depth already mentioned, originally conceded to Ann Guilbeaux, mother to the plaintiff.
About one year after this arrangement, the defendant purchased three and a half arpents of land, front, part of this concession, from one of the heirs of the grantee. In the conveyance the property is described as, une terre de trois arpents et demi de face avec quarante deux de profondeur, sur chaque bord du bayou Carancro limite par en bas par la veuve Frederic le Blanc, et par en haut par Joseph
It is unnecessary for us to examine whether parol evidence can legally be received in any case, to shew that by reason of a previous survey,or other circumstance, a greater or less quantity of land than that mentioned in the deed of conveyance was sold; or more especially, whether it can be received in a case such as the present, where the actual possession given, was in conformity with the title, and in opposition to the boundaries indicated on the plat of survey. The testimony, by which the expressions used
Proceeding, therefore, to examine the evidence, we find it proved by one witness, that the defendant went into possession under an express stipulation, that he was to hold the land, in conformity with the survey of Gonsoul
He contends, however, that admitting he purchased under this survey, he has acquired a title to the premises by prescription. The evidence on this head is, that the plaintiff put the defendant in the possession of the premises he now claims, and that he remained in actual possession of them for ten years. The witness who relates the manner this possession was given, states that the plaintiff shewed, where he thought the line would run, but they did not measure it, nor was any division made. That the witness himself stepped off the distance of three and a half arpents. Taking the purchase to have been made according to the survey already mentioned, it is evident the possession delivered was erroneous, for the spot indicated as the boundary, was nearly that, where the front line would have terminated,
Under these circumstances of error on the part of the vendor in delivering property not sold, and error on the part of the vendee, in taking possession of that which he did not purchase, the question is, can the latter hold it by prescription. We think not. An important and indispensable requisite is wanting to make out a title of the kind; the intention to possess. The vendee intended to enter into, and hold the property sold him. What he possessed over and beyond the quantity purchased, was in error. Pothier gives as an illustration of this doctrine, the very case now before us. If, says he, J’ai achete de vous une chose, et vous m’en livriez une autre que je prends par err ur pour celle que j’ai achetée, et dont j’ai intention d’acquérir la possession; je n’acquiers la possession ni de celle que j’ai recue par erreur, parce que ce n’est pas celle dont j’ai la volonte d’acquerir la possession, ni de celle que j’ai la volonte d’acquerir, parce que
It is therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.