40 La. Ann. 376 | La. | 1888
The opinion of the Court was delivered by
This is a petitory action for tiie recovery of an undivided one-half interest in the property known as the Ashland plantation, situated in the parish of Tensas, this State. It is designated in the petition as “ the same property (that was) sold by William Harris to Daniel J. Dohan and to Mrs. Rebecca Dohan on the 21st of February, 1850. ’
Plaintiffs claim the property by inheritance from their deceased mother, Mrs. Rebecca Dohan, and it is alleged in their petition that one of them is a resident of the State of Texas and the others of the State of Mississippi.
They represent that the defendant has taken possession of their said one-half interest “ without authority from them,” and has used and cultivated same, and that the annual revenues thereof aggregate $5000 per cmmvm.
The answer of the defendant is, in substance, that he is in possession of the whole property, but disclaims title .to more than one undivided half interest thereof. That he acquired said interest by purchase from Daniel J. Dohan by deed of record and date July 15, 1878, and possessed the remaining one-half as the tenant at will of “ Michael J. Dohan, residing in Philadelphia, Pennsylvania.”
He represents that he purchased said property in good faith, for full value, and upon the written opinion of a reputable attorney at law that the title was perfect.
There is in evidence a deed from William Harris to Dauiel J. Dohan and his wife, Rebecca Dohan, purporting to convey the whole property. This is the title of the common author of plaintiffs’ ancestor and of the defendant, and is affirmed by both.
There is, also, in evidence a deed from Daniel J. Dohan to the defendant, of an undivided one-half interest therein.
Manifestly, the plaintiffs rest their claim of ownership upon the title of H arris.
But we are left in the dark as to the precise character of their pre
There is neither averment or proof of the residence of Daniel J. Dohan and wife at the date of their purchase from Harris on the 21st of February, 1850, nor at the date of Rebecca Dohan’s death. There is a recital in the deed that they resided in the State of Mississippi.
Such recitals contained in a deed that is offered in evidence by plaintiffs in proof of title, cannot be considered as proof of domicile. 10 Ann. 268, City vs. Sheppard; 4 Ann. 555, Hill vs. Spaugenburg; 5 Ann. 348, Davis vs. Benion; 1 Ann. 200, Jones vs. Reed.
If, in point of fact, Daniel J. Dohan and Mrs. Rebecca Dohan were citizens of the State of Mississippi at the date of their purchase from Harris, in 1850, and their title thereby taken out of the operation and effect of our community laws, plaintiffs should have proved that fact clearly and affirmatively.
We think their allegations are sufficiently broad to admit of the introduction of the -needed evidence. They are to the effect that they are the owners by inheritance fiom their mother, Mrs. Rebecca Dohan of an undivided one-half interest in the Ashland plantation, purchased from Harris by Daniel J. Dohan and his wife, Rebecca Dohan, in 1850.
Under the circumstances and for the purposes of justice, we think the ease should be remanded for a new trial in pursuance of the views herein expressed.
It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and set aside; and it is further ordered, adjudged and decreed that the cause be remanded to the court below for a new trial in pursuance of the views herein expressed, and that the cost of appeal be taxed against the plaintiffs and appellees.
