13 La. 334 | La. | 1839
delivered the opinion of the court.
On the 11th January, 1810, the grantee of á tract of land supposed to contain seventeen arpents front, on the Mississippi river, sold the lower twelve arpents, to Sylvain and Charles Duplessis, in the manner stated in the following stipulation:
“ he sieur Martin Duplessis déclare que les six arpens U partir de la borne d’un haul, en descendant, appartiennent et ont été rendu cl Charles Duplessis m. I., un des acquereurs: et les six arpens U partir de la borne d’enbas en montant, appartiennent If , et ont été rendus U Sylvain Duplessis, m. 1., autre acquereur, ce qui a été accepté par les deux acquereurs qui ont dit élre satisfaits.”
On the 16th of September, 1820, Cyprien Duplessis, the defendant, acquired the remaining five arpents. On the 20th of August, 1828, Charles Duplessis sold his land to John Austin, and the said land having been seized under execution as the property of the said Austin, on the 23d September, 1829, the plaintiff acquired, at sheriff’s sale, five arpents thereof, and the defendant purchased, at the same time, the remaining arpent.
The whole front of the original tract is only fourteen arpents, twenty-seven toises and three feet, instead of seventeen arpents, and the plaintiff alleges, that himself and Sylvain Duplessis being the first purchasers, are entitled to take the full quantity called for by their titles, and that the deficiency must fall on the portion held by the defendant.
The defendant answers, that he is the just owner and possessor of six arpents front, of land acquired by him as above stated, and that he, and those under whom he claims, have been in open, peaceable, and uninterrupted possession of-said land, in presence of the plaintiff and those under wh (ffiuh e, cl aims, for more than ten years before the institution of this^uie; and that if his title had ever been defective, iwli-ioji he ¡denies, the defect is cured by prescription. He further contends, that if there be any deficiency it must be the plaintiff, and that he is entitled to one sixth of A 9 the land sold at sheriff’s sale, which he prays may be adjudged to him. There was judgment in his favor in the X)ist.riCt Court, and the plaintiff appealed.
Our attention is first directed to a bill of exceptions taken by the plaintiff’s counsel to the opinion of the court, stated fo have admitted parole evidence to prove an agreement between Cyprien and Charles Duplessis, establishing a boundary between them. The court stated that the evi
We are of opinion, that the plaintiff ought to take nothing by his action, and that under the 846th article of the Louisiana Code, the defendant is entitled to one-sixth of the land sold at sheriff s’ sale.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.