Bailly & Son v. Percy , 14 La. 14 ( 1839 )

Porter, J.,

delivered the opinion of'the court.

The petitioners state themselves to be owners of two lots of ground, numbers five and six, in square eighty-sis, situated in the Parish of New-Orleans, and forming a part of the suburb Lacourse, they having purchased the same, at' a sale made by the sheriff of the Parish of Orleans, on the 20th day of June, 1816.

The petition avers, that the defendant has taken possession of the premises, and refuses to deliver them up. It prays for her eviction, and that she may be compelled to pay rent and costs.

The defendant alleges, that she has been in actual possession of the property sued for, as proprietor, since the 14th of January, 1822 ; that she purchased No. 5 from the heirs of Heloise Trudeau, a f. w. c., and No. 6 from JNannette Leduff, a f. w. c.; that Heloise Trudeau or her heirs have been in possession of lot No. 5, as lawful proprietor, since the 15th of July, 1807, having bought the same from Jacques Leduff; that Nannette Leduff owned and possessed No. 6 for the same space of time, having acquired it by a contract of sale on the same day from the same person.

The answer concludes by an averment 'of the defendant having a good title to the premises, by reason of the conveyances so made to her; and it presents as a bar to plaintiff’s recovery, the prescription of ten, twenty and thirty years ; it also puts at issue the existence of the plaintiffs’ title.

The plaintiffs introduced a copy of the sale made to them by the sheriff, taken from the books kept by that officer, in pursuance of the act of the legislative council of 1805, and also the book itself; both were objected -to, on the ground, that by the provisions of the statute-just referred to, the original is presumed to be in the hands of the vendee, and is of course higher evidence than the copy; the court overruled this objection, and the defendant excepted.

By the 11th section of an act of the legislature, passed the 25th of March, 1828, it is provided, that from and after its passage, a copy of any sale or deed of conveyance heretofore made and executed, or which hereafter may be made and executed, by any sheriff or any other person exercising and performing the duties of sheriff in this state, or by the city marshal of New-Orleans, certified to be a correct copy by the clerk or deputy clerk of the court, in whose office such sale or deed of conveyance is or may be recorded, shall be received as evidence, in the same manner, and have the same effect in every respect, as a duly certified copy of an authentic act; under this provision we think the judge below did not err in receiving the evidence objected to.

where a she riff’s deed only ríghts^titie and interest of the eoution, itisne-qnire what these rights, &c. were, they were sujie-toTheTitie'ofthe eniiaTthepia’in-tiff to recover in a petitory action.

The sheriff’s deed, states the sale to have been in virtue of a fieri facias, directed against the goods, chatties, &c. of ^-atae Therese Leduff, issuing under a judgment in favor of Fromenten and Galez vs. Marie Therese Leduff and others.

Ry this conveyance, all the right, title and interest of Marie Therese Leduff, passed to the petitioners; we are, therefore, to inquire what that right and title was, and whether it was superior to that which the defendant sets up.

There is no evidence before us in what right Therese claimed the lots; none that is of superior dignity to that of Jacques Leduff, who sold them in 1807. To succeed in a Petitory action, the plaintiffs must show a higher and better title than that of the defendant, which has not been done ^

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