No. 1,337 | La. | Jul 15, 1889
Lead Opinion
Tlie opinion of tlie Court was delivered by
Tlie motion to dismiss this appeal lias no merit. Tlie record clearly establishes that the appellants made due and formal application for an order of appeal which was duly granted. The clerk having failed to enter the order oh his minutes, application was made to the judge, on notice to the appellees, to have tlie minptes corrected and the entiy of the order incorporated .therein, which application was granted by the judge.
As tlie order had been granted on the last day of term, application was properly made to the judge at chambers, and lie had the right there, on proper proof of error, to cause his minutes to he corrected so as to conform to the facts. The order as thus entered Axes the return day and complies with all requirements.
The suggestion that the amount in dispute is not within our jurisdiction, is equally unfounded. The claim is for restoration to possession
Opinion on the Merits
On this Merits.
The petition alleges that plaintiffs purchased the tract of land in controversy in 1883, that, since said purchase, they have enjoyed continuous and uninterrupted possession, as owners, have paid taxes thereon and a large gum on account of the purchase price; that A. I). Harmanson, acting as agent of his wife, on the 6th day of February, 1889, with threats and violence, had evicted plaintiffs, their families and tenants from the property, and had unlawfully taken possession thereof and excluded plaintiffs therefrom; and thereby inflicted damage on them. They pray for judgment restoring and maintaining them in possession of the property and for the damages claimed.
Defendants answered by a general denial, and by a special denial that “plaintiffs ever purchased or possessed as owners.”
The evidence establishes, without contradiction, that plaintiffs had enjoyed uninterrupted possession of the property during more than five years; that they had cleared land and built houses thereon; that they had paid taxes, several times, upon it; they exhibited a receipt signed by A. D. Harmanson, agent, for $697 18, “in payment on place.”
The defendants fail, in any manner, to establish that plaintiff’s possession was under a precarious title of any kind, or to qualify or characterize their possession as being under any title other than that of ownership. Their silence in this respect is certainly significant.
They rely simply on the fact that the property continued to bo assessed in iho name of Mrs. Harmanson, and that plaintiffs so permitted and directed its assessment; but this is not so inconsistent with their claim of ownership as to overcome the other evidence, especially when taken in connection with the payment of taxes by plaintiffs. Some evidence was also introduced to show that plaintiffs had applied to two parties to get them to buy from Harmanson and resell to them. But that application was accompanied by the statement that plaintiffs were to pay Harmanson one-half the crop annually on the price, and they wanted the witness to take Ilarmanson’s place as vendor and let them pay only one-third of the crop annually. This is entirely consistent with their claim to he in possession as purchasers and owners.
This is a possessory action. It cannot be distinguished from Kemper
In another case we said: “ The plaintiffs aver a title in their petition, which, they claim, has conferred upon them a life estate. This they did for the obvious purpose of showing that they claimed possession in their own right as owners, and not through another. They do not ask in the prayer of their petition to be recegnized as owners, but merely to be quieted in their ppssession. It was not necessary for them to allege by what title they were in possession ; but they had a right to'do so without thereby impressing upon their action the character of a petitory one.” Salabah vs. Marsh, 34 Ann. 1054.
The contention of defendant that, by the allegation of a particular title, the plaintiffs converted their action into a petitory one and were thereby bound to establish such title as good and valid, is not sound. If, indeed, the title thus exhibited showed, on its face, that the possession based thereon was not as owner as required by C. P. Art. 47, it might be fatal to the possessory action, as was held in the case last quoted But the mere allegation of a title of ownersliip not produced- or relied on by either party and not appearing in the record, will be treated as a mere substantiation of the necessary allegation that plaintiff possessed under claim of ownership. We are not concerned with the sufficiency or even with the existence of such title. The fact and nature of the possession are alone at issue. In a petitory action defendants will have full opportunity to cancel and brush aside this title or any other title set up by plaintiffs, if found insufficient. But in face of the undoubted long possession of plaintiffs, of their claim as owners and acts as such, and in absence of the slightest proof attaching any different character to the possession, the law and the interests of society equally require that such possession should be protected from extra-judicial invasion and eviction, and that the parties should be remitted to legal process for the vindication of their rights.
Wo are bound to hold that plaintiffs are entitled to judgment in their possessory action.
It follows that they are also entitled to damages for their unlawful eviction, which is fully proved.
Upon due consideration of all the facts and circumstances of the case, we shall, without additional comment, fix these at the sum of $500, including attorneys’ fees in reinstating the possession.
It is, therefore, ordered and decreed, that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and
Judgment reversed.