58 So. 178 | La. | 1912
Plaintiff alleges that, as heir of her mother and of one of her brothers, who died without issue since the death of her mother, she owns 19/ioo of a tract of land containing 140 acres, with buildings and improvements thereon, which belonged to the community of acquets and gains that existed between her father and mother, and which her father sold to the defendant after the death of her mother. She alleges further that defendant has been a possessor in bad faith of her said share of said property. She alleges further that said property is indivisible in kind. And she prays that said property be sold to effect a partition, and that defendant be condemned to pay rents and revenues from the date of his purchase.
Defendant filed a general denial, and specially denied that he was a possessor in bad faith. He averred that he had paid taxes and placed useful improvements on said property, and that $300 of the price paid by him to the father of the plaintiff for the property had gone towards satisfying a like amount of the debts of the community of acquets and gains that existed between plaintiff’s father and mother; and that if plaintiff should have judgment, recognizing her as owner of the interest claimed by her in said property, she should be required, as a condition precedent to taking possession of said interest, to pay petitioner her proportional share of said taxes, and of said $300, and of the value of the said improvements.
The trial court gave judgment recognizing plaintiff as owner of the interest claimed by her, ordering the property to be sold to effect a partition, and the proceeds of the sale to be paid to the plaintiff and defendant in the proportion of their respective interests, condemning defendant to pay plaintiff rents and revenues on the basis of $4 per acre on 140 acres from judicial demand, fixing at $100 the value of the improvements, and decreeing that, as a possessor in good faith, defendant was “entitled to collect of the plaintiff” her share of same, rejecting, in all other respects, defendant’s re-conventional demand, and condemning him to pay the costs, except those incident to the licitation.
The appeal is by plaintiff; but defendant has filed an answer, renewing his reconventional demands, and specially denying that the property is insusceptible of partition in kind.
No amendment of that part of the judgment recognizing plaintiff’s title having been asked for in the answer, the judgment- appealed from is final on that point.
The judgment is affirmed, in so far as it recognizes plaintiff to be owner of a 10/i6o interest in the property in question, and decrees that plaintiff is entitled to a partition, and holds defendant liable for rents and revenues from judicial demand, and fixes the sum due him by plaintiff for improvements at 19/i6o of $100, and rejects defendant’s reconventional demand for the $300 in question. It is, in all other respects, set aside, and the case is remanded for further proceedings in accordance with the views hereinabove expressed.