55 So. 675 | La. | 1911
Applicants pray for the review and reversal of a judgment of the district court for the parish of St. Mary, affirmed by the Court of Appeal, sustaining a plea of estoppel, set up by the plaintiff in the above-entitled petitory action, against the right of the defendants to prove that the author, from whom plaintiff asserts title by inheritance, was not, at the time of her death, the owner of the property here claimed. The undisputed facts are that in 1844 plaintiff’s grandmother, Marcellite Verdun, obtained a patent for a certain quarter section of land; that by three acts of sale, the last of which was executed in 1S49, she sold said lanjl to George Schwing and F. De Lucky & Bros., respectively; and that in 1882 she died. Plaintiff asserts title, as the granddaughter and coheir (with her sister, who has not joined in the suit) of Marcellite Verdun, against eight defendants, whom she found in possession, six of whom either disclaimed title or failed to appear; and she objected to the evidence offered by the two who were left (applicants herein) to show that Marcellite Verdun did not own the land at the time of her death, on the ground that they are estopped to deny that she then owned it, by reason of the fact that they, with the other defendants, partitioned said land among themselves by an act which contains the recital that they had inherited it from their grandmother,. Marcellite Verdun. The district court and Court of Appeal held that, as defendants set up no title in themselves, they should be regarded as mere trespassers, as against whom plaintiff is not bound to exhibit a title good against the world, and they further held (to quote from the opinion of the Court of Appeal):
“In this case the land was entered by Marcel-lite Verdun in 1844, and the last portion was sold by her some time in 1849. It may be that, in the long interval that elapsed between her last sale, in 1849, and the time of her death, which occurred in 1882, she had reacquired the land, by prescription or otherwise. As such may be the case in spits of this character, the wisdom of the rule, which requires that the party sued shall at least plead that the title is outstanding in another at the time of the suit, is obvious.”
“It is a principle of law, so familiar as to have become trite, that a plaintiff in a petitory action must recover upon the strength of his own title, not upon the weakness of that of 'his adversary.” Rowson v. Barbe, 51 La. Ann. 350, 25 South. 140.
“The plaintiff in an action of revendication must make out his title, otherwise the possessor, whoever he may be, shall be discharged from the demand." Code Prac. art. 44. (Italics by the court.)
It is therefore ordered, adjudged, and decreed that the judgments of the Court of Appeal and of the district court, here complained of, be annulled, avoided, and reversed, and that the demand of the plaintiff, as against the two applicants now before this court, be rejected, and her suit dismissed at her cost.