10 Rob. 80 | La. | 1845
The plaintiff' claims two hundred acres of land as belonging to him, being part of a larger tract situated on Ward’s creek, of which he alleges the defendant has taken possession, and that he sets up title thereto. The defendant, in his answer, after a general denial, says that he is not in possession of any land belonging to the plaintiff, nor that ever did belong
The evidence in the case shows, that John West, on the 23d of July, 1819, sold to William Hood, “ a certain improvement on the east fork of Ward’s creek, on condition, that if said Hood shall obtain a title for said land from the government of the United States, he binds himself to pay or deliver to John West, one hundred acres of said land, exclusive of the improvements now made by William Hood and Charles Powers, in any part that the said West may choose.” This sale was recorded in the parish judge’s office, on the 23d of September, 1826, at the request of the plaintiff, and the original was. returned to him, it being an act sous seing privé. On the 21st July, 1822, t William Hood and the plaintiff entered into an agreement, by an act under private signature, which stipulates that the former had sold to the latter the tract of land on which he"(Hood)*resided,fon the éast fork of Ward’s creek, called West’s improvement; the whole tract containing six hundred and forty acres; “ onejhundred acres is reserved for Westand for the balance,] Hood binds himself to transfer the certificate of confirmation as soon as it can be obtained from the United States commissioners. This act was signed by two witnesses, who on the 7th February, 1823, appeared before the parish judge, and on oath"acknowledged their signatures, and declared, “ that the parties to said act did declare that it was their own act for .the purpose therein set forth.” This acknowledgment was attested by the judge, and the act recorded the same day. With this act from Hood, the plaintiff presented himself to the land commissioners of the district, to whom the claim of Hood and Gurley, founded
This statement contains all the documentary evidence on the part of the plaintiff; and it may be here remarked, that according to the agreement to sell, made between the plaintiff and Nash, the two hundred acres of land were situated on the northern or upper part of the tract, and included the land in controversy, but from the description in the probate sale, the land purchased by the plaintiff is on the southern or lower part of it.
The documentary evidence offered by the defendant, is an adjudication made at a probate sale of the estate of Fountain
Mrs. Hill swears, that the hundred acres of land reserved in favor of West, lay in the north west corner of the tract adjoining Powers, and takes in the improvement of West. That a drain that runs between the improvement of William Hood and John West was the conditional line between them, as told to her by Hood. The plaintiff told her, that he sold to William Nash that part of the section that took in the improvement of William Hood: and Nash told her he intended to purchase the hundred acres from West, for his son Fountain M. Nash, after he .had purchased the improvement from Thomas.
Pyburn says, that he knows the section of land known as Wesfis improvement, and knows where the improvements of Hood and Nash were situated on it. Hood was situated inside
We have stated the evidence very fully, and as accurately as possible from the manner the record has been made up; the evidence given on the two trials, having been improperly copied and mixed together, so as to make it difficult to understand precisely what was used on the last trial. There was a judgment in favor of the defendant, and the plaintiff has appealed.
Before proceeding to the merits of the case, our attention has been directed to certain bills of exception. The first is to the opinion of the court refusing to permit John West to be examined as a witness for the defendant. He had had him summoned, but did not offer him as a witness, and the counsel for the defence closed their testimony. The counsel for the plaintiff then asked a witness if West was not then in the court-house, who answered affirmatively, whereupon the plaintiff’s counsel closed their evidence also, and it was so entered on the record. At some period subsequent to this, but at what precise time the bill does not state, the counsel for the defendant tendered West as a witness. He was objected to by the counsel for the plaintiff, on the ground that the defendant had closed his evidence. The court sustained the objection, and the defendant excepted. The bill does not state whether the argument had commenced or not. If it had, article 484 of the Code of Practice says, that “ no witnesses can then be heard, nor proof introduced, except with the consent of all parties.” In the absence of any negation in the bill that the argument had commenced, we must presume that it had, otherwise the judge would, we suppose, have admitted the witness to testify, if he were competent, or not objected to for some sufficient reason. When bills of ex
The next bill states, that the plaintiff offered in evidence the adjudication to him at the probate sale of William Nash, which was objected to by the defendant’s counsel, on the ground that it was not a copy of an authentic act, as from it the original did not appear to have been signed by two witnesses, nor to have been clothed with the formalities of an authentic act. These objections were overruled, and the exception taken. We think the court erred in admitting'this copy in evidence as being authentic. Article 2231 of the Civil Code says, that an authentic act is one which has been executed before a notary public, or other officer authorized to execute such functions, in presence of two witnesses, free, male, and aged at least fourteen years, or three witnesses if the party be blind. This court in 8 Mart. N. S. ■ 502, and 11 Mart. 243, have said that an act is not authentic, that wants the signature of either of the witnesses. From the copy produced two witnesses are named in the body of the act as being present, but only one signed his name.
By the sale from West to Hood, the whole section was transferred to the latter; and upon a certain contingency, to wit, that of a title being obtained from the United States, he was to deliver to West one hundred acres in any part he might choose, so that he did not interfere with the improvements made by Hood or Charles Powers. The plaintiff became possessed of the whole tract by the sale from Hood, subject to the same reservation ; but in the confirmation by the United States to the plaintiff, which completed his title, nothing is said of a reservation, and the claim to it rests upon the previous agreements. That West had a right to select one hundred acres out of the section after it was confirmed, is undeniable ; but the question is, did he ever do it ? We see no sufficient evidence in the record to convince us that he ever did. It is not shown that he ever called on the plaintiff to deliver him the one hundred acres, nor that he ever had it surveyed by any one. He continued to live at the same place, subsequent to the confirmation, that he occupied before; and nothing is proved as to the position of the
We are of opinion that, the penal bond which the plaintiff gave William Nash, did not divest him of his absolute title to the two hundred acres agreed to be sold. No title or sale by authentic or private act was to be made, until the price was paid, which never was done, so far as we are informed. It was an agreement to sell when a price should be paid; but as the plaintiff seems to have considered it in a great degree binding, and undertook to re-acquire the land by purchasing it again, it is possible, that he may have received a portion of the price, and thus have made the obligation to sell more onerous and binding.
On the part of the defendant, the evidence of the loss of the deed to Fountain Nash Mason is very weak; and as to who the
As the case is now presented to us, we are not satisfied with the judgment given below, and, we think, that the ends of justice will more probably be obtained by remanding it for a new trial.
As to the plea of prescription, we are of opinion that it cannot avail the defendant. None of the sales previous to that from Shields to Denham, dated in 1836, are acts translative of property. They are sales of only the right and title of the various vendors to an uncertain thing, which we have held not to be a basis for the plea of prescription. 3 Rob. 220.
It is, therefore, ordered and decreed, that the judgment be annulled and reversed, and the case remanded for a new trial, with directions to the judge to conform in the trial thereof, to the prin