Etienne Carraby v. Noel Barthelemy Le Breton, Curator, 1 Rob. 242

Bullard, J. The first question which is presented for our solution in this case is, what is the nature of the action; is it petitory, or possessory ? By the plaintiff’s counsel it is contended, that the proceeding is for the sole purpose of turning out of possession the tenant at will, whose possession was that- of his lessor, 'or at most, an action in jactitation in which the defendant, who avers title in his intestate by way of reconventional demand, becomes actor and is bound to make out his title.

The defendant, on the other hand, insists that the action is petitory, and that he is to be maintained in his possession, until the plaintiff shall have shown a better right. It is the prayer of the petition, which gives character to the action.

The plaintiff, after setting forth the fact of his ownership of the property, and that Jean Gravier had been permitted to occupy an old wooden house on the land until his death, and that the defendant, the curator of his estate, well knowing the premises, had caused the lot to be inventoried as a part of his estate, and had refused to give up possession and surrender the key of the house, concludes by praying that the defendant may he condemned to restore the premises to the plaintiff’s possession, and to pay rent at the rate of fifty dollars per month from judicial demandthat he he enjoined from selling or alienating the property; and that the petitioner may he decreed to he the lawful owner thereof; and the injunction be made perpetual; and for general relief.

It is manifestly impossible for the court to grant the prayer of this petition, and decree the prope'rty in dispute to belong to the plaintiff, without looking into his title, and deciding whether it be a valid one ; and that is what we regard as of the essence of a petitory action. The plaintiff is therefore bound, in our opinion, to make out his title, before the defendant can be disturbed. It was in this light that the case was regarded in the court of the first instance.

The respective titles of the parties were investigated, evidence offered "and received without exception, and the court pronounced as upon a petitory action; and the judgment being for the defendant, t.he plaintiff appealed. The case appears to be a part of the same tissue of usurious and illicit transactions, which were disclosed to our view in the case of Gravier’s Curator v. Carraby’s Executor, upon which we pronounced as our deliberate judgment, that the law did not authorize us to come to the relief of the parties against each other, and that in pari delicto potior est conditio possidentis.

That the lot was originally the property of Gravier, is unquestionable. It only remains to inquire, whether he has ever been divested of it. Whatever may have been the true character of the first sale from Gravier to the Bourgeois, it appears certain that the conveyance by the latter to Pierre and Antoine Carraby, was in substance a retrocession to Gravier, the Carrabys being regarded as merely persons interposed.

This is satisfactorily shown by the fact that long subsequently, this property is enumerated as a part of that which the Carrabys held en naniissement, or as collateral security for advances made to Gravier by them, and which they were authorized by agreement in 1823, to sell in order to reimburse their advances. Such being then the acknowledged condition of the parties in reference to the lot in dispute, it is clear that whether we look upon the contract as one of mortgage, or of antichresis, the property could, never have been vested in P. and A.

Carraby without a sale, or at least some subsequent agreement between the parties. Code 1808, p. 449, art. 13, 15. The evidence fully satisfies us that the present plaintiff, who purchased in 1838, was fully cognizant of the nature of the contracts between Jean Gravier and P. and A.

Carraby, and that consequently, he must be regarded as identified with the latter, and as having acquired no better title than they had; and we concur fully in the able and lucid opinion pronounced by the Parish Court, being satisfied that the title of Jean Gravier never was legally divested, and that the property in controversy still belongs to his succession. Judgment affirmed.