| La. | Jun 15, 1859
On the 13th of May, 1858, W. A. Shaffer instituted tho present suit in the District Court of Lafourche, claiming to be the owner of lots 5 and 6, in section No. 71, T. 17, R. 16, East, by purchase from William, J. Minor, on the 23d of December, 1851, and praying “ that he have judgment against said Scuddy, quieting him in his title, possession and enjoyment of the aforesaid lots five and six, in section 71, T. 17, R. 16, East; that said Scuddy be forever enjoined from setting up title to said tract of land and disturbing your petitioner in his possession and enjoyment of the same.”
To this action Scuddy filed two peremptory exceptions and an answer.
The exceptions were sustained, a.nd the action was dismissed.
Our view of this caso renders it necessary to consider but one of the exceptions, which is the plea of res judicata, founded on the suit of Shaffer v. Scuddy, 10 An. 134.
It is admitted that the thing demanded in the present suit and in that in 10 th Annual is the same.
It is contended, however, that the cause of action is not the same, because in the former action reported in 10 An. 134, Shaffer offered two titles in opposition to that of Scuddy, viz : one derived from Madelaine Billio, and the other obtained by Shaffer from the State of Louisiana; and that he bases this action upon a title derived from W. J. Minor.
In the former suit, Scuddy represented himself to be the owner of the land now in contestation, and prayed to be declared the owner and proprietor of the same.
The judgment of this court decreed Scuddy to be its owner, and also that he recover possession from Shaffer, of this tract of land, and that the case bo remanded to be tried as to the claims of Shaffer against his warrantor. 10 An., p. 136.
In the former suit Scuddy, then, declared himself to be the owner of the land ; but he could not be the real proprietor, if there existed an outstanding title superior to Ms. In proclaiming himself to be the owner, Scuddy in fact averred Ms title to be of higher rank than any other, and particularly, than any held by Shaffer, whom he directly sued as being in wrongful possession of the land.
The former suit was filed on the 8th of April, 1851; judgment therein was rendered by the District Court on the 24th of June, 1854, and by this court on the 9th of January, 1855. Shaffer avers to have derived his title from W. J. Minor on the 23d of December, 1851. Now, as the issue in the former suit was, whether Scuddy or Shaffer was the true owner of this land, it was the duty of Shaffer to have plead not only the titles derived from Billio and the State of Louisiana, but
When an issue is made between the parties to a suit, each is presumed to adduce all the evidence in his power to enable the issue to be determined correctly.
If one of the parties neglects or does not wish to introduce a part of his evidence when it is known to him, the issue cannot, after a final decision, be ag’ain opened to enable him to do so. If this were possible, litigation would be uselessly continued. If a party has four titles, he could institute in succession four different suits, instead of having the issue of ownership terminated in one suit. C. C. 226?); Williams v. Close, 12 An. 878. Even if the answer of Shaffer had been filed in the former suit, previously to the purchase of the title of Minor, this would not have hindered him from amending his answer and pleading the title of Minor, for the issue was, whether Scuddy or Shaffer was the owner of the land, and the amendment would have been pertinent to the issue.
It is also argued, that even admitting the demand to have been between the same parties, still, that Shaffer does not appear in the same capacity in both suits. That in the first suit he acted as the vendee of McMasters ; in this, he acts as the vendee of Minor, and that in the former suit he was a mere formal and technical defendant in the case; McMasters, his warrantor, being the real defendant. Appellant relies upon Millaudon v. McDonough, 18 La. 103.
The record shows that Shaffer took an active part in the defence in the first suit; but even conceding that he did nothing therein, except to cite his warrantor to defend it, still he was one of the defendants. He was directly sued as being in possession of land belonging' to Scuddy. It was in the power of Shaffer to have plead the title of Minor, notwithstanding he had called McMasters in warranty. The latter was cited to defend the title he had sold to Shaffer, but not to maintain titles that Shaffer might have derived from other parties.
The call in warranty was merely one of the modes by which Shaffer could have defended the suit.
The issue of ownership contested not only the title derived from McMasters, but any other that Shaffer might have.
When a vendor of land is called in warranty by his vendee, in a suit in which plaintiff asserts himself to be the owner of the land, the vendee is as much a defendant as his warrantor. The latter is only called in to defend the title he has sold, whilst the vendee can defend his claim to the land not only by that derived from his warrantor, but by any titles he may have derived from other parties.
The warrantor is bound to defend the title he has sold, but the vendee can resist the ownership of plaintiff by any defence personal to himself and pertinent to the issue, and is thus a defendant as much as the warrantor. Besides, the vendee can defend the title derived from his warrantor, notwithstanding the latter has been called in to maintain it. In calling the warrantor, the vendee does not deprive himself of also upholding the title, that the former is called upon to protect.
Judgment affirmed, with costs of appeal.