Bedford v. Urquhart

8 La. 234 | La. | 1835

Mathews, J.,

delivéred the opinion of the court.

This is a petitory action, on which the plaintiff claims, as heir of his mother, a certain lot of ground, in the city of New-Orleans, which he alleges to be in possession of the defendants. They, after pleading the general issue, insolvency of the father of the plaintiff and prescription, cited in warranty the heirs and representatives of Gilly & Prior, their vendors, who after various pleas, cited S. Henderson (under whose title their ancestors held) in warranty, who called on C. Harrod and the heirs and representatives of G. M. Ogden and P. Y. Ogden to warrant and defend the title which he had obtained from the firm of Harrod & Ogdens. On behalf of the heirs of the Ogdens, special answers were made, denying that they ever inherited any property from their fathers, and Harrod’s answer contains nothing more than a general denial of all facts alleged against him by the plaintiff. Under these pleadings and certain evidence, as shown by the record, the cause was submitted to the court below, which ordered and decreed that the plaintiff’s demand should be dismissed with costs. Prom this judgment, he appealed.

Being a petitory action, the court below assumed as a legal principle, that the plaintiff was bound to make out his title, before the possessor could be disturbed or required to show any, or in the language of the forty-fourth article of the Code of Practice, that the possessor should be discharged from the demand. This principle, as assumed, is strictly correct. But to justify the judgment of that court in the present instance, it must clearly appear that the evidences of title, adduced on the part of the claimant, show no right to the property in him. He claims as heir to the succession of his mother, and alleges that the lot in dispute, made a part of the matrimonial community existing between his parents at her death, as having been acquired during their marriage. The main document of title offered by the plaintiff is a notarial act of sale passed before P. Pedesclaux, on the 21st October, 1806. This deed purports to be a conveyance of the property in question to the father of the plaintiff, by one Martin de la Madrid, through the agency of a certain Francisco Ramon Canas. The act of procuration was not adduced, nor its absence accounted for, and on these grounds the deed was rejected by the court below, as affording no evidence of title in the ancestor of the claimant. Whether any other persons except those pretending title, immediately derived from Madrid, would be legally authorised to dispute the authority assumed by Canas, is a question, which, according to the view we have taken of the case, need not be solved.

lit Jüng Pin'res|yeLiIndsipa" rate rights to ?ertel?,P™P®r$>r> trace their titles to one common sourcej neiUiei. of them is at lib-title ^of^their OT^gUi^endor- shown'X pleadings or <mdence ol acause, that both piain- and warrantors olaim™der th.e therwiiibepermitted to attack it.

The doctrine is now well settled, that when parties litigating in relation to their respective rights to any specified property, trace their titles to one common source, neither of them is at liberty to deny the title of their common author. In support of this, see 11 Martin, 714. 1 N. S. 577. 4 N. S. 402, and 2 Louisiana Reports, 209 to 213. KW A TV* on. . The last of these cases establishes the principle, that when the fact is shown either by the pleadings or evidence of a cause, that both parties claim under the same title, neither will be permitted to attack it.

In the present case the defendants plead title and call in . i in their warrantors to defend, &c. The ascent of titles is traced by calls in warranty, up to Harrod and Ogdens. The answer of these parties who were last cited, sets up no title as derived from any person. The question arising from this . n ,i ' . i . . , . part of the cause requires a decision by which it is to be ascertained whether the plaintiff may legally introduce competent evidence to show that the last defendants derived their title from a common source with him, in other words, whether he is authorised to prove in support of his claim, that they did obtain title to the property in dispute, from his father under whose title he claims.

So, in a petitory action, when the last warrantor cited, sets up no title, hut pleads a general denial, the plaintiff may show hy legal evidence, that the former derives his title from the same common source, and is forbidden to attack it. In a petitory action, the plaintiff is entitled to the use of any legal evidence or means by which he may render valid the title offered in support of his claim.

This question we think must be answered in the affirmative. We know of no principle of law or rule of evidence which deprives a plaintiff in a petitory action from the use of any legal means by which he may render valid the title offered in support of his claim.

The pleadings carry up the titles of the defendants to Harrod & Ogdens. Whence did they derive their title 1 they are silent on this subject, but to give validity to that set up, on the part of the plaintiff, it became necessary for him to establish the fact, that they derived title from the same source from which his decends. This he has done by adducing a record of the proceedings in his father’s insolvency, and a notarial act of sale, made by the syndics of that estate, to the defendants .Harrod & Ogdens. We are of opinion, the court below erred in dismissing the claim of the plaintiff, &c.

It is, therefore, ordered, adjudgod and decreed, that the judgment of the Parish Court be avoided, reversed and annulled, that the suit be reinstated and remanded for a new trial, to be proceeded in according to law, with instructions to the judge a quo, not to permit the defendants to dispute the title offered by the'plaintiff, unless they show titles derived from a source different from that under which he claims. The appellees to pay the costs of this appeal.