12 La. 139 | La. | 1838
delivered the opinion of the court.
This is a petitory action, in which the plaintiff asserts title to a tract of land under a purchase, at probate sale, having a front of eight arpents, and twenty toises and one-third, on the Mississippi, by a depth of eighty arpents, the side lines diverging about six degrees, so as to contain about one thousand and ten superficial arpents. He complains that the defendant has taken possession of, and set up a title to a part of said tract, forming a triangle, extending the whole depth of the tract.
The defendant exhibits a title for three arpents. front, of the same original tract, derived from the same source, partly by purchase from the widow Bourgeat, and partly by a legacy in her last will. He contends, that under the sale and donation by his ancestor, he is entitled to three arpents front, by eighty in depth, with side lines diverging in such a manner as to give him a due proportion of the whole [super-ficies of the tract, and that his possession has always been in conformity to his asserted right.
The plaintiff having purchased the residue of the plantation of the widow Bourgeat, and calling to be bounded on one side by the portion belonging.to the defendant, it is clear the controversy involves the single inquiry, how much did the defendant acquire by purchase and under the will.?
Neither the sale nor the will contain any expression that would give the defendant more than a front of three arpents, by a depth of eighty; that is, a superficies of two hundred and forty arpents, in the form of a parallelogram. He did not acquire, in our opinion, any particular proportion of the plantation, which would authorize him to hold by side lines diverging towards the rear.
The case of Williamson vs. Hymel, 11 Louisiana Reports, 285, alluded to in the argument, does not, in our opinion, aid the defendant. In that case, the proces verbal of the probate sale, expressed a convergency of the side lines of the tract, and we held, that less than a parallelogram was conveyed.
The present case presents the converse of that proposition.
But our attention is called to a bill of exceptions in the record, from which it appears, that the court refused to admit in evidence a document, signed by the parish judge, purporting to be a judicial order, to put Zenon Bourgeat in possession of that part of the tract acquired under the last will. We think the court did not err. The proceeding, besides being ex parte, merely recognizes the right of the legatee, under the will, to one arpent and a half front of land by a depth of eighty. Neither that document, nor the parole evidence in the record, establishes-a boundary between the parties, conclusive upon the plaintiff, different from that indi
■ The appellee demands that we should reverse the judgment, and award damages against the defendant. Under the circumstances of the present case, we think,the plaintiff not entitled to recover damages.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.