15 La. 455 | La. | 1840
delivered the opinion of the court.
This is an action of partition, brought by some of the heirs of the late Mariah Badon, widow of Robert Badon, against the defendants. The latter are alleged to be co-proprietors with them, of a tract of land on the Tchefuncla river, by virtue of purchases under the only other heirs of their said deceased mother, from whom the land was inherited. The heirs of Henry Badon intervened, asserting title to one-half of the tract about to be partitioned. They set forth that their grand-mother, Catherine Montlemat, widow of Joseph Badon, was the owner and possessor of said property; that, on the 3d of January, 1801, she made her last will, bequeathing the same to her three sons, Robert, Henry, and
The judge of the court below overruled the plea to his jurisdiction, recognized the right of the intervenors to one-half of the premises, and decreed a partition accordingly.
We think, that the plea to the jurisdiction of the Probate Court should have been sustained. The parties in this case were proceeding to a partition among themselves, of property derived from the estate of their mother, Mariah Badon, to whom it had been sold or adjudicated at the death of her husband, Robert Badon, in the year 1820; other persons step in, and assert themselves to be owners of one-half of the property which, they say, descended to them from their father, Henry Badon. It is apparent from the pleadings, that the plaintiffs and defendants in this suit, held under a title adverse to that of the intervenors; although both were originally derived from Catherine Montlemat, widow of Joseph Badon, their grand-mother. This assertion on the part of the intervenors, of their right to one-half of this property, in opposition to the exclusive ownership and possession which the heirs of Mariah Badon aver to be in themselves, for the whole of it, clearly gives rise to a question of title which, in our opinion, should have been brought before the courts of ordinary jurisdiction. We have been referred to several of
Had the adjudication of this property in 1820, been made to a stranger, instead of the surviving widow of Robert JBadon, the present intervenors could not have brought suit arra¡ns{, the heirs of the purchaser, in the Court of Probates, Should we permit them to set up their claims in that court, by making themselves parties to a partition pending between ^e*rs> holding under a person from whom they do not pretend to derive title, we would allow them to do indirectly^, that which they could not do directly.
It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed ; that the intervention of the heirs of Henry Badon in this suit, be dismissed, with costs in both courts ; and it is further ordered, that this case be remanded to the inferior court, to be proceeded in according to law, between the original parties thereto.