Blanc v. Duplessis, F. M. C. , 13 La. 334 ( 1839 )

Rost, J.,

delivered the opinion of the court.

On the 11th January, 1810, the grantee of á tract of land supposed to contain seventeen arpents front, on the Mississippi river, sold the lower twelve arpents, to Sylvain and Charles Duplessis, in the manner stated in the following stipulation:

Parole dence is sibie to provea recognized luby the parties m support of a plea of prescription; tion' th|'t "goes afhot'connected with the actual part?esS.l0n°ftlie

“ he sieur Martin Duplessis déclare que les six arpens U partir de la borne d’un haul, en descendant, appartiennent et ont été rendu cl Charles Duplessis m. I., un des acquereurs: et les six arpens U partir de la borne d’enbas en montant, appartiennent If , et ont été rendus U Sylvain Duplessis, m. 1., autre acquereur, ce qui a été accepté par les deux acquereurs qui ont dit élre satisfaits.”

On the 16th of September, 1820, Cyprien Duplessis, the defendant, acquired the remaining five arpents. On the 20th of August, 1828, Charles Duplessis sold his land to John Austin, and the said land having been seized under execution as the property of the said Austin, on the 23d September, 1829, the plaintiff acquired, at sheriff’s sale, five arpents thereof, and the defendant purchased, at the same time, the remaining arpent.

The whole front of the original tract is only fourteen arpents, twenty-seven toises and three feet, instead of seventeen arpents, and the plaintiff alleges, that himself and Sylvain Duplessis being the first purchasers, are entitled to take the full quantity called for by their titles, and that the deficiency must fall on the portion held by the defendant.

The defendant answers, that he is the just owner and possessor of six arpents front, of land acquired by him as above stated, and that he, and those under whom he claims, have been in open, peaceable, and uninterrupted possession of-said land, in presence of the plaintiff and those under wh (ffiuh e, cl aims, for more than ten years before the institution of this^uie; and that if his title had ever been defective, iwli-ioji he ¡denies, the defect is cured by prescription. He further contends, that if there be any deficiency it must be the plaintiff, and that he is entitled to one sixth of A 9 the land sold at sheriff’s sale, which he prays may be adjudged to him. There was judgment in his favor in the X)ist.riCt Court, and the plaintiff appealed.

Our attention is first directed to a bill of exceptions taken by the plaintiff’s counsel to the opinion of the court, stated fo have admitted parole evidence to prove an agreement between Cyprien and Charles Duplessis, establishing a boundary between them. The court stated that the evidence was only admitted to prove a boundary line, recognized by the parties, in support of the plea of prescription; with that limitation, the testimony was clearly admissible, it went merely to prove a fact connected with the actual possession of the parties.

Where the Sfiand supposed tee"'arpents" fronting on the Mississippi, sells the lower ^two píSa-sers> (sixavpents each,) with certain fixed boun-wm^óntronhe quantity in case of deficiency m the whole tract. go wliere a i»'°ves_ac-tual possession, to certain and bounda-by making* leveesand fences, hoMj hold by-his '^en ,two possessions lap, that which is besf character^ zes the right of property, is to be preferred; that which is corporeal, and manifested by acts peaceable and notorious, will prevail over that which is merely intentional.

We are satisfied by the wording of the sale from Martin Duplessis to Charles and Sylvain, that the land was sold under fixed boundaries; the lower boundary being that of the grant, and the upper, that from which Charles Duplessis was first to take his quantity. The words, Les six arpens U partie du la borne d’en haut en descendant, will admit no other . . 11 1 1 • 1 * interpretation, but that an upper boundary existed at the time, to the knowledge of the parties, and that the sale was made in reference to it. The parole evidence adduced by , , , 1 . tbe defendant, as well as the understanding of the parties, as shown by their acts since the date of their purchase, satisfies us that the live oak mentioned by the witnesses, was the boundary between them. If then the land conveyed to Charles and Sylvain Duplessis, was sold with fixed boundaries, those boundaries control the quantity, and Charles Duplessis and his successors, never had any right to the land claimed by the plaintiff. Had no upper boundary been fixed by the sale, the defendant has made out a clear case of ,J prescription to all the land he has possessed under the sale made to him in 1820, to the full extent of five aj/"' ^ The witnesses state that since he purchased, I ^ v the roads, levees, bridges and front fences, dcfevirto the live oak, and that his vendor did the same those witnesses who have lived with and worked for defendant, state that the defendant always w ~ up to that boundary, and that there was no d<Kj TO>betwe him and Charles Duplessis, or amongst the neighbors, cfnout the extent of their respective possessions. No evidence can be clearer or more satisfactory. Under these circumstances, the possession of the plaintiff, if it existed at all under his title, was merely intentional, and cannot avail him against ® that of the defendant. When two possessions lap3 that which is most perfect and best characterizes the right of property, is to be preferred; that which is corporeal and manifested by acts peaceable and notorious, will prevail over that which is merely intentional; the presumption being, that the will to possess ceases when it remains inactive and suffers an actual adverse possession. Troplong verbo Prescription, No. 245.

We are of opinion, that the plaintiff ought to take nothing by his action, and that under the 846th article of the Louisiana Code, the defendant is entitled to one-sixth of the land sold at sheriff s’ sale.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.