JONES ET AL vs. PURVIS ET AL., 9 La. 288

Mathews, J., delivered the opinion of the court. This is an action of revendication, in which the plaintiffs sue to recover a certain tract of land, (as described in their petition,) alleged to be in the possession of the defendant, parvis. He disclaimed title to the property in dispute, as being only a tenant of Tillotson, who appeared in the cause and made defence.

Judgment was rendered against him in the court below, from which he appealed, In. a petitory mentof eviction the1 plaintiff^e-fore he sold, by a'possessoiy ac-former7 was Ws tenant, and attempted to hold the land in dis-right wiiinotbe received in evidence, or const-dered as res ju-oMhé 'defend-^ight t° the So, in a peti-vendor^of' the plaintiff cannot be made a party, on an allegation of the defendant, that he obtained his title fraudulently from the government, under the preemption laws. There is no pri-vity between these persons.

Fraudulent and dishonest acts done by the vendor of the plaintiffs, against the rights of the defendant cannot effect them, unless it be shown that they were íng and coiiud-ing with the defrauder. the^iessor^"and tenant of a tract of land, if the latter find the true title is in another, he has the right to purchase it and. hold, theland, without being considered as acting fraudulently towards his lessor. The title set up to the lands sued for, by the plaintiffs, is

an act sa^-e fr°m one Benjamin Croft, who held by purchase from the United States, under a pre-emption law passed by Congress, and a receipt given by the receiver of public mcmey for. the general government is adduced as evidence of the purchase, &c. The defendant and appellant shows no . ,. , title in himself, by any evidence appearing on the record, the proof offered by him tends to establish only a naked possession, unsupported by any title.

It shows that Croft ... , . . , . . _ ' . had been his tenant m actual possession, and that when he attempted to hold in his own right, he was evicted, by a possessory action brought by his lessor. The judgment in that case is insisted on as res judicata in the present. It cannot be considered in that light, for title therein was not in any manner brought in question ; and as all the authorities cited on the part of the appellant relate to possession and the possessory actioii, they may be dismissed without comment, as inapplicable to that now under consideration.

The balance of the defence consists in allegations of fraud committed by Croft, in obtaining title from the United States, under the provisions of the pre-emption law ; and an attempt was made to bring him in as a party to the present suit, on application to the court made by Tillotson, which was rejected, and we think properly, there being no privity in the present instance between those persons.

Any fraudulent and dishonest acts done by the vendor of the plaintiffs against the rights of the defendants, cannot effect them, unless it be . , , .. shown that they were participes jrauais, by combining and colluding with the defrauder to aid him in his dishonesty, The record affords no satisfactory evidence of any such com- ... , , , bination and confederacy to cheat. They (the plaintiffs) must therefore be considered as innocent purchasers of a title, apparently fair and legal, vested in the seller.

If the contest were directly between Croft and Tillotson, the former could not acquire any possession independent of that holden under the latter as his tenant; but if he discovered that 'the title to the property was in another, we do not believe that a purchase of such title by the lessee ought to be considered as fraudulent, in relation to the lessor, although he might thereby lose the opportunity of making the purchase for himself, nor could any objection be made to a title thus obtained, on this ground, in an action of revendication.

Perhaps a distinction might be made between purchases under laws granting a right of pre-emption and ordinary cases, when the purchaser used the means of obtaining by pre-emption, that which he had received from a person legally entitled to the preference, in buying under the law granting pre-emptions. But any equitable claims which might exist between parties thus situated, cannot be pleaded against the rights acquired by third persons in pursuance of a title apparently just and legal, without notice of the existence of-such equity, previous to their acquisition.

But as to purchasers under pre-emption laws, and in ordinary cases, perhaps a distinction might be made, when the purchaser used the -means rhe had received from his lessor, of obtaining by pre-emption, when the latter would have been entitled' to the preference by the same law. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.