15 La. 566 | La. | 1840
delivered the opinion of the court.
This is a petitory action. Plaintiff alleges that he is the owner of a tract of land situated in the parish of West Baton Rouge, on the west bank of the Mississippi, containing forty arpents in front, more or less, by the depth of forty arpents, bounded above by Fausse-Riviere, which he purchased from the heirs of William Conway; that the titles to said land were originally granted in three portions, by the Spanish government, to William Conway, Patrick Conway, and Maurice- Conway; that afterwards, William Conway acquired the title of his two uncles to their respective portions, died the sole and exclusive owner of the three tracts, and transmitted the same to his heirs, who sold to the petitioner. He prays that the defendants, who are in possession of the whole land, be condemned to deliver up the same to him, and to pay him fifteen thousand dollars for the rents and profits, and ten thousand dollars damages.
The defendants, after pleading the general issue and denying specially the heirship of plaintiff’s vendors, aver that they are in possession of certain portions of the tract of land claim
Before the trial in the court below, plaintiff dismissed that part of his claim under Patrick Conway, and limited his demand to thirty arpents in front, by forty in depth, under William and Maurice Conway.
The record shows that plaintiff’s titles to the thirty arpents, are predicated on a complete grant made by the Spanish government to William Conway, on the 1st February, 1786, for ten arpents in front, by forty in depth, situated in the district of Pointe Coupée, bounded on one side by Patrick Conway, and on the other by Maurice Conway; and on an order of survey issued on the 27th January, 1789, in favor of Maurice Conway, for twenty arpents in front, by forty in depth, situated in the district of Pointe Coupée, in the inferior part of the mouth of False River, and bounded on one side by the mouth of said False River, and on the other by the tract of William Conway. Both titles were regularly confirmed by an act of congress of the 28th of February, 1823, and are accompanied by plats of survey made under the Spanish government, showing their location. It further appears that Maurice Conway, by last testament, dated 22d of May, 1792, instituted his nephew, Wilson Conway, as his only and universal heir; and that the children of William Conway, after the death of their ancestor, sold the two tracts to plaintiff, on the 11th of November, 1835. The plaintiff relying wholly on his titles, has produced no proof of possession in himself, nor in any one of those under whom he claims.
From the mass of evidence contained in the record, we have deemed it necessary, in order to understand the chain of titles under which the defendants pretend to possess, and particularly for the investigation of the question of prescription, to recapitulate the following facts: Perrault, in 1774, sold his land to Joseph Herbert; and so far, there is no proof of actual possession by Perrault, except that it appears from the sale, that he had cut down and hewed timber on the land. Herbert, who was in the lumber trade, cultivated the land, made pickets, and cut cypress timber on it. He became insane in 1776, a curator was appointed to him, and he died some considerable time afterwards. During his insanity, the land was left unoccupied ; and for aught we know, it must have been during this period that the Conways made their application to the Spanish government. Herbert left no other heir but his sister Catherine, who was the wife of FranQois Bidou, and resided in France. No further act of actual possession is shown until 1807; that a son of Mrs. Bidou came to Louisiana, and sold the land to Mathurin, under the pretence of having inherited the same from his uncle Herbert. Mathurin took possession of the land, and possessed it for several years; but already in 1806, Madame Bidou had sent her power of attorney to Baudin, who, in 1812, instituted a petitory action against him in the United States Court, based on the same titles relied on in this suit by defendants. Mathurin was evicted, and Baudin, in 1813,
The evidence shows, also, that in 1819, Baudin inslitutéd a suit against Dubourg and Baron, agents of Mrs. Bidou, on an account of expenses incurred during his agency, in which he gives credit for the amount of the sales.made by him to Guinault, and by the sheriff to himself, claiming judgment for the balance. He recovered; and an appeal having been taken to this court, the judgment, was affirmed, and the matters of controversy resulting from Baudin’s agency, were thereby ended. It is further in evidence that Baudin, styling himself the attorney in fact of the heirs of Patrick Conway, made application to the land office for the confirmation of their title; and although the identity of the individual has been very much controverted, we are satisfied that he is the same Alexander Baudin who obtained the confirmation of the title of Perrault. Proof has also been adduced, to show that Baudin paid the taxes on the land in dispute, from 1814 to 1834.
The record contains several bills of exceptions, one of which it is only necessary to notice: plaintiff objected to the production of a copy of the act of sale from Perrault to Her
After a careful examination of the facts of the case, and an attentive consideration of the rights of the parties, we have come to the conclusion that it has become unnecessary for us to inquire deeply into the validity of their respective titles. We are not disposed to question the authority of the French commandant of Pointe Coupée to puta settler in the possession of a part of the public domain by a written per mission or grant which, showing the extent of the tract) conceded, and accompanied with proof of long occupancy, might afterwards be considered by his government as a suffi
Before considering this question on its real merits, under the evidence adduced by defendants in support of their plea, it will not be unimportant to dispose of two questions raised by plaintiff’s counsel for the purpose of showing that the plea of prescription founded on the possession of several individuals, has been interrupted by certain circumstances brought out by the evidence, and that such possession, however long it may have been, cannot benefit the defendants. He contends :
1. That the possession of Mathurin, under the title to him transferred by Philip Bidou, is an interruption, and cannot enure to the benefit of the defendants.
2. That Baudin, who possessed the land by himself and by others, from 1814 to 1834, was in bad faith ; that he knew he was not the owner of the property, as his title under Mrs. Bidou was fraudulent, illegal and void ; and because he was not ignorant of the plaintiff’s titles, one of which wasH confirmed on his own application. He, therefore, maintains Q that Baudin’s possession cannot be of any use to theH defendants. H
I. From the circumstances of the case, it is clear, thatHj Mrs. Bidou and Mathurin both claimed under the title ofH Joseph Herbert, whose heir Philip Bidou had alleged bimselfB to be, when he sold to Mathurin. The suit then turned onfl the validity of this mesne conveyance, and not of the originalB
“Pothier, dans ses pandectes, livre 41, titre 3, numero 47, tire la méme décision de la loi pré-citée. II dit: Supposons que j’aie commencé de bonne foi la possession d’un fonds, qu’un usurpateur s’en soit emparé, et que je l’aie reprise en vertu d’un jugement, la possession de cet usurpateur comptera pour moi, tout comme si je n’avais pas été dépossédé. See, also, Troplong, Prescription, vol. 1, numbers 448 and 449,
II. In order to prescribe, it is necessary that good faith should have existed at the commencement of the prescription. Old Code, article 72, page 488; Louisiana Code, article 3448. And it cannot be denied that Mrs. Bidou’s possession, after the eviction of Mathurin, was one in good faith as well as before; and that, bad she or her representatives transferred the property to the defendants, there would have been no doubt of the accomplishment of the prescription. But it is urged that Baudin, who began to possess for himself in 1814, was >n bad faith ; that he knew that the property belonged t0 others, and that, therefore, he did not possess animo domini. _ _ . , . Had Baudin been the first possessor, or was the time to establishjLhe prescription to be ascertained or computed by taking [fis possession as the commencement or origin of the right, . * • , ° ° , the authorities quoted by plaintiff s counsel from JPothier and Troplong, would, perhaps, receive their proper application, and there would probably be no difficulty, under our law, to maintain him in his position. But here, Baudin was an intermediate possessor, and his predecessor was in good faith. Troplong, Prescription, vol. 1, No. 432, says: “JDésle momentl qu’on succéde a une personne, on doit pouvoir se servir de sa possession, toutes les fois que le vice qu’on peut lui reprocher n’empéche pas la prescription d’aprés Ies regies générales.l Ainsi, dans l’exemple donné par Voét, je ne comprends pasl pourquoi la mauvaisefoi d’un possesseur intermédiaire empéche-l rait la jonction des possessions de bonne foi, qui ont précédé;
• De méme, le successeur a litre parliculier. qui acquiert de mauvaise foi un immeuble, possédé avec litre et bonne foi par son vendeur, peut continuer la prescription eommencée par ce dernier, et la conduire a fin, sans qu’on puisse lui objecter sa mauvaise fot. C’est a peu pres comme si le vendeur húmeme fut devenu de mauvaise foi depuis son acquisition.”
This distinction appears to us perfectly clear; Baudin himself would have been entitled to prescribe; and in our opinion, the defendants who hold under him, ought to have the benefit of his, as well as of all the previous possessions. This doctrine is, undoubtedly, a proper and correct interpretation of the article 3448, of the Louisiana Code, that says: “ It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.” Under this view of the question, it is immaterial whether Baudin’s title under Mrs. Bidou, was fraudulent or not; and whether he knew, or not, that the Conways had a title which might afterwards prove to be better than his; and moreover, we are not ready to say that Baudin’s title did not become perfect' and final, by the judgment by him obtained in 1819, against the agents of Mrs. Bidou, and that the confirmation of the title in his name by the government of the United States, in 1823, ought not also to militate in favor of the defendants.
On the merits, we think the defendants have completely made out their title to the property in dispute, not only by the prescription of ten years, but perhaps also by that of
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.