Green vs. Hudson's Syndics, 7 La. 120

Mathews, J., delivered the opinion of the court. In this case, the plaintiff alleges, that he has title to an undivided half of a certain tract of land, as described in his petition, containing seven hundred and twenty arpents, and that the defendants are joint owners with him, of the other moiety of said land. Partition is prayed for, in conformity to the alleged rights and claims of the parties.

On the part of the defendant Hudson, a title is set up to two hundred and ninety-eight acres, being a part of said tract of seven hundred and twenty arpents, derived from a source different, and independent of the title alleged by the plaintiff, and pleads a right by prescription, &c.

The original document of title, offered in support of the prescription pleaded, is a deed made in pursuance of a sale for taxes, wherein the assessment was made against one Samuel Moore, on a tract of land supposed to contain three hundred and fifty-six acres, a part of which was sold, amounting to two hundred and ninety eight acres, to a certain John P. Michel, who bid the amount of taxes and costs, for this portion of the whole land assessed.

Michel afterwards sold to Richard and John Caruthers, who sold and conveyed to the defendant Hudson, The deed from Michel to his vendees, contains no clause of warranty, neither is there any clause which excludes it.

Proof of pospeusabie^o support a tide based the plea ot prescription. f^^-ho^the defendant’s title incompetentwitpossession of 'the latter, so as to a title by apre- dor is an incompetent ^olnd of'intei®st>. for a deriving title from him, even to^his'* vendee “a*‘l“lsof ranty. bo^ TT^varranty to his vendec "when his deed of sale does '¿“j. ^biigatiot ext<r.nds at least so far as to require him to re-es^in^asT^of eviotion- Judgment was rendered in the court below, in favor of the plaintiff, from which the defendants appealed. The pleadings in this case, clearly involve a question of title.

The basis of that set up on the part of the defendants, is prescription. To support a title of this kind, proof of possession is indispensable. In order to establish this fact, they offered as a witness, Michel, from whom the title under which they claim, is derived, who was objected to, as incom- , , , . , , , petentbythe plaintm; he was, however, received by the court, and a bill of exceptions taken. The witness thus offered, is clearly incompetent, on the ground of interest. He is bound in warranty, on his deed to the Caruthers, for that act does not exclude it.

His obligation extends, at least, to require him to refund the price, with interest, (if no further) in the * ' * event of eviction. See La. Code, art. 2476, et seq. The judge below erred in admitting the witness. And as it is possible, that the defendants might have proven the fact r , . . .. . , , 1 , of possession by other testimony, it they had not been led into error by the decision of the judge a quo in allowing their witness to testify who was legally incompetent. Under these circumstances, we think the cause ought to be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be- avoided, reversed and annulled, and that the cause be sent back to said court, to be tried de novo. The appellee to pay the costs of this appeal.