Millaudon v. Ranney

| La. | Mar 15, 1866

Labaove, J.

The first question presented is, wlietlier this action is a petitory or a possessory demand.

The plaintiff represents that he is the owner and proprietor of a certain square of ground situated in the town of Carrollton, in the parish of Jefferson, comprised within Canal Avenue, the Shell Road of the New Orleans Canal and Banking Company, and Dublin stoeet, known as lot No. 289, with, all the buildings and improvements thereon; aDdthatbe has always been in possession and enjoyment of the whole of said square, receiving rents from oue John Kellwick, for a portion of said square on which the buildings exist; that is, the corner of Canal Avenue and the said Shell Road, u„p to the 1st March, 1859. He prays that his title to the whole of the said square of ground, with all the buildings and improvements thereon, may be recognized, and your petitioner be put in possession thereof.

The defendant answered by a general denial, and further, that the said property is under the control and management of defendant by virtue of his contract with the Canal and Banking Company; and that he is authorized to collect rents; and that the property on which the rent is claimed is not within the bounds and limits of the square described by plaintiff; but, on the contrary, is located upon property subject to the said Canal and Banking Company, ,etc.

We are clearly of opinion that the allegations and prayer of the petition present all the ingredients of a petitory action, and that plaintiff was bound to make out his title to the property in dispute, and which he has failed to do. C. P. Arts. 43, 44. We have examined the evidence adduced in this case, and we concur fully with our learned brother of the District Court in the judgment by him. rendered; and for the reasons assigned by said Judge, the judgment must be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be affirmed, with costs.

Howell, J., recused.