8 La. 241 | La. | 1835
delivered the opinion of the court.
Since the argument in this case, on the re-hearing, we have holden it under advisement an unusual length of time, and
At the threshhold of this inquiry, we meet the question, whether the 44th article of the Code of Practice has introduced a new principle in relation to the petitory action, or whether it merely reasserts the well known maxim, “ that the plaintiff must recover by the strength of his own title, and not by the weakness of his adversary’s.” “The plaintiff,” says the Code, “in an action of revendication, must make out his title, otherwise, the possessor, whoever he be, shall be discharged from the demand.”
Pothier, in treating on this kind of action, adopts the rule, that the plaintiff in revendication, in order to succeedjin his demand, must base it on some title of property ; and such titles are said to be those, which are of a nature to transfer from one to another the ownership of the thing “ causee idonce ad transferendum dominium.” Among titles of that description, he enumerates an act of partition, by which it should appear that the thing sued for, fell to the share of the plaintiff in the succession of some, of his relations. “When the possessor,” says he, “ against whom the suit is brought, proves that his possession was anterior to the title which I produce, .although he produces none on his part, the title which I exhibit, is not alone sufficient, unless I produce another more ancient, which shows that he who by his contract, which I produce, sold or gave me the property, was really the owner; for I. cannot make myself a title by procuring a sale or donation of a property which you possess, from a person who does not possess it; you, as possessor, are presumed to be the owner, rather than he who sold it to me, and who did not possess it, and of whose right I can prove nothing. But when the title which the plaintiff exhibits, is anterior to the possession of him against whom
We have also the authority of Pothier, for assuming as a principle, that although regularly the action of revendication oail be maintained only by the owner, it may sometimes be , J 7 J maintained by one who is not the real owner, but was in the way of becoming so, when he lost the possession. For he w^° was *n P°ssession in good faith, in virtue of a just title, and lost the possession before the period required for prescription, can recover it in a petitory action, from one who ™ P°ssess¡on without title. “II rCestpas precisement nécessaire que le litre en vertu duquel faipossédé la chose ful un litre valable, il suffit quefaie eu quelque sujel de le eroire valable n0Ur qUe je sojs reputé avoir eté juste possesseur de la chose, el ' * 1 J A . que je sois regu h cette action lorsquej en aiperdu la possession. Same, JVo. 292, 293.
Let us now examine under what title the plaintiff seeks A to be declared owner of one undivided half of the lot in dispute. He alleges that he is the sole heir of his mother,
The immediate title of the plaintiff here set up is heirship, pro herede, a transmission to him of his mother’s right by hereditary' succession. Thp fact that tbe property was possessed during the existence of the community, that it was in the actual possession of Bedford, in virtue of the sale from Canas, at the time his wife died, and up to the period of his surrender, is beyond doubt. Whatever rights the wife had, vested in her heir at her death, and from that time, the . possession of the husband must be considered as the possession of the heir, then a minor under the age of puberty. Leaving out of view for the present, tbe deed from Canas to Bedford, the next ascending link in the title, we come to examine the question whether the title pro herede alone, is sufficient to enable the heir to recover against a naked possessor. Considering tbe defendant in possession, without allegation of title, and relying on mere possession, bow far does the plaintiff entitle himself to recover by proving bis heirship and bis possession as heir, anterior to the commencement of the possession of the defendant.
We think it a sound principle, that the presumption of ownership resulting from mere possession, will be repelled by exhibiting such a title on the part of the plaintiff, as would have formed the basis of the ten years’ prescription, if the possession under it had continued, together with evidence of possession, in virtue of such title, anterior to tbe commencement of the defendant’s possession, and would authorise a judgment restoring him to possession as owner.
Let us consider then, the plaintiff as in possession, and relying hi an action against him, on the prescription of ten years under his title. The mere title pro herede, would perhaps not be sufficient, for he derives from his ancestor only such title as she had, together with the right of continuing in possession, until prescription is acquired under the primitive title of the ancestors. The conveyance from Canas coupled with his heirship, would constitute the basis of his prescription. The question, therefore, resolves itself into this, does the sale from Canas, styling himself the attorney in fact of Martin de ¡a jyjadrid constitute a iust title which may form the basis of the ten years’ prescription?
That it is a sale, followed by tradition, is evident. The defect H tbe want of evidence of the authority of Canas, and not a nullity of form, resulting from his legal incapacity. If he had stated himself to be the tutor or curator oí the owner, the sale would be null for defect of form, as the purchaser would be considered as having purchased in bad faith from a . 7 7 „ 1 , person legally incapable of selling. 1 he tradition oí the thing in pursuance of the sale, certainly furnishes some Presumptioxx of authority, and the purchaser may well have supposed that he was buying from a person authorised to' sell, and may be regarded as holding unimo domini, and in g-00(j fajth, “ La bonne foi en matiere de prescription, consiste dans Vignorance du droit d’autrui sur ce qu’on possbde. Bonce jidei emptor esse mdetur, qui ignoramt rem alienam esse aut P^davit ewn qui vendidit jus vendendi habere.” JWerlin Rep. verbo prescription.
Jjq the case of Bourguignon vs. Boudousquie this court held that possession for more than twenty years, under a conveyance executed by a person styling himself attorney in fact without evidence of the agency, furnished a legal , _ , J , ' , presumption of the agency. In that case the power was by' act sous siwg privé, but not proved. It was, therefore, no ^etter unaccompanied by tradition and long possession, than if it had never existed, and the evidence of agency had depended altogether on the assumption of that quality, by the vendor,
In the case now before the court, nearly thirty years have elapsed since the execution of the conveyance by Canas, and the only persons interested, in contesting his authority, to wit: De la Madrid or his heirs, have acquiesced, notwithstanding the open and public possession of Bedford, before his surrender, and for aught that appears to the court, of those who succeeded him. If the present plaintiff were defendant in a petitory action, it is the opinion of this court, the title now set up by him, would form a sufficient basis of prescriptive right. It is asserted by the counsel for the appellees, that the decree heretofore pronounced, is an innovation on the •jurisprudence of the state, and several cases are cited to prove it. The first is that of White et al. vs. Holston et al. 4 Martin, 474, in which the court said that “the persons claiming the estate, were bound to make good their title, against the legal possessor, and in opposition the latter has a right to set up and prove by legal means, any title which may defeat the claim of the plaintiffs.” It appears that the plaintiffs claimed an estate as forced heirs; the defendant in possession set up a title, distinct from the will, which it was the principal object of the suit to annul as inofficious. An objection was made to the introduction of evidence, to prove any other title than that derived under the will, because the defendant had accepted the estate, agreeably to an inventory made by competent authority. But the court said the defendant had set up a title distinct from the will and had a right to do so, “ but if it did appear clearly,” says the court, “ that Mrs. Holston has accepted the property as an inheritance from D. White, we are of opinion she ought to be estopped from pleading or proving any title in herself, distinct from or independant of his testament.” Here the general principle is recognised, which is not denied, that the defendant has a right to show title derived from any source, unless estopped by setting up a particular title in the answer.
The case of Sassman and wife vs. Aymé, 9 Martin, 267, is next urged as settling a contrary doctrine.
The two cases differ very widely. In Sassman’s case, the plaintiff claimed as heir of her father, and it turned out on the evidence offered by'herself, that she was not an heir; that her father, an absentee, was legally presumed to be still alive. In the present case, the .plaintiff alleges heirship and proves it; he proves possession under the sale from Canas, both before and after the death of his mother. In the former, the the plaintiff relied on the naked title pro herede, without pretending to show.how her father acquired the property; in the present, he shows a sale, by a person assuming to act as attorney in fact, accompanied by tradition, and followed by long possession.
But the appellees contend, that they show an outstanding title in De la Madrid, as they have a right to do. In doing so, they assume the right to question the act of his real or
Thus far we have examined the case independently of the the answers of the original defendant, and of the several warrantors, previous to Harrod & Ogdens, and of the evidence in record, tending to show that Harrod & Ogdens purchased from the syndics of Bedford, and that by sundry conveyances the property came into the possession of Urquhart. The admissibility of this evidence is questioned, and it was rendered subject to all legal exceptions.
Each defendant successively annexes to his answer, calling in his warrantor, a copy of the conveyance by which he acquired title in the premises, until we come to the last, Charles Harrod, one of the firm of Harrod & Ogdens, who denies both his sale and obligations, as warrantor, and the title of the plaintiff, and all the facts alléged by him. These different conveyances, appear to have been read in evidence, without objection, except the one from the syndics of Bedford to Harrod & Ogdens.
In inquiring into the legal admissibility of this document, it must not be overlooked, that the plaintiff expressly alleges, that the syndics conveyed the property to Harrod & Ogdens, and this fact is denied by the answer of Harrod. It cannot be denied, that as a general rule, whatever is alleged and denied, may be proved by legal evidence. The effect of the evidence is another question. A sale, purporting to be to a commercial firm, and accepted only by one partner, may not, in itself, be proof against the partner, who did not except, but it tends to prove it, and evidence that the other partner accepted and acquiesced in it afterwards, may make full proof of the fact. Harrod, in effect, disclaims having acquired any title under that deed, or having conveyed any, or incurred any responsibility, by the subsequent sale, by his partner, in which he did not concur. Under the pleadings in this case, we think the document admissible, in support of the plaintiff’s allegation.
The warrantor, by the Code, has a right to plead every exception in defending the cause, which the defendant himself, might have pleaded; but it does not follow as a necessary consequence, that if the original defendant has set up a particular title, and thereby made an important admission, the warrantor can disregard it, or that it is to be disregarded by the court. There is no privity in this case, between the last warrantor and the original defendant, nor between the plaintiff and the last warrantor. The plaintiff can recover only of the original defendant, and he of his immediate warrantor, and so on, in succession, as they are called in. The plaintiff may certainly strengthen his title, by the admissions of his adversary, if it appears by those admissions, that they both derive title from a common source, It was said, in the argument, that we cannot inflict a title on the defendant. Undoubtedly not, but if he has chosen to adopt and set up one, on which he relies against his warrantor, he cannot afterwards repudiate it, on discovering that it is better to have no title than a bad one. The sale from Gilly & Pryor to the defendant Urquhart, recites that they acquired the property from Stephen Henderson ; the latter called in warranty, sets tip title under Harrod & Ogdens, in virtue of an act of sale, which accompanies his answer, signed only by G. M. Ogden, in behalf of the Ann. In that 'deed it is recited that the property is the same purchased by them of the syndics of Bedford. This recital in the deed, is evidence at least against Ogden, whose heir is a party, if not against Harrod, that the property was acquired from Bedford. All these acts of sale, were in .evidence and produced, as it appears, by the defendants themselves. Independently of the deed from the syndics to Harrod & Ogdens, they show that the defendant set up a title, which is traced back to Bedford’s estate.
Not only does the defendant allege title, as derived through Gilly & Pryor, but he alleges the insolvency of the community of Bedford and wife, and that the debts are still due and unpaid, and claims for the value of the improvements made by him.
