Scott v. Dickson, 88 So. 235

Scott v. Dickson

88 So. 235 | La. | 1921

O’NIELL, J.

Plaintiffs appeal from a judgment rejecting their demand in a petitory action for an undivided half of certain real estate, of which defendant is in possession. .The suit was dismissed on a plea of prescription of 10 years. \

[1] It is not disputed that defendant had been in possession of the property^under a title apparently valid, continuously,\during a period exceeding 10 years when thi^ suit was filed. The only question that theVistrict judge found in the cáse, on the plea\)f prescription, was whether defendant was to good faith when she acquired the property}^ It is alleged to have belonged to the marital community between plaintiffs’ father and mother. She died before plaintiffs had arrived at the age of majority, and they claim to have inherited her half interest in the property. Defendant acquired a mortgage on the land, executed by plaintiffs’ father, nearly 4 years after their mother had died; and, in foreclosure of the mortgage, nearly 5 years thereafter, defendant bought the property at sheriff’s sale, in satisfaction of her mortgage note. The evidence shows that defendant was aware, when she acquired the mortgage note, that plaintiffs’ mother had ' died leaving minor children; but it also appears that defendant did not know that the mortgaged property belonged to the marital community theretofore existing between plaintiffs’ father and mother. On the contrary. defendant had been informed and believed that the property had been acquired by plaintiffs’ father by inheritance from his father. Under these circumstances, there is *969no reason to doubt that the defendant was in good faith when she acquired the mortgage on the property and when she bought it at the sheriff’s sale.

[2] Although it appears that plaintiffs were yet minors when defendant foreclosed her mortgage, there is no proof that they were not of the age of majority 10 years before this suit was filed. A party who relies upon the interruption pr suspension of prescription bears the burden of proof of the facts required to interrupt or suspend the prescription.

The judgment appealed from is affirmed, at appellants’ cost.