Arrowsmith v. Durell , 14 La. Ann. 849 ( 1859 )

Buchanak, J.

This is au action of slander of title or jactitation. The plaintiff alleges that he and his authors have been in full, peaceable, notorious, uninterrupted, undisputed, and exclusive possession, from the year 1758, to the institution of this suit, 1854, under a chain of titles particularly detailed, of a certain tract of land in this parish, described in the petition; that the defendant, Durell, has set up title to a portion of said land, and has even attempted to effect a sale of the same; that he has slandered plaintiff’s title, to his damage, ton thousand dollars.

Defendant, Durell, denies generally, all the allegations of the petition, and specially plaintiff’s possession of the land mentioned in his petition ; pleads prescription, and calls in one Mrs. Pontalba, from whom he holds, to defend his title; prays for judgment against Mrs. Pontalba, for restitution of the price of sale, in case plaintiff should be adjudged to be the owner of the land. Finally, by a supplemental answer, lie alleges that plaintiff had caused him, Durell, damage to the amount of $20,000, by pretending title to this property, and by certain vexatious proceedings previous to the institution of the present suit; all of which had prevented said Dwell from selling the property, which he might otherwise have done to great advantage and profit.

Upon these issues, the parties went to trial before a jury, which found a verdict in favor of defendants, upon the principal demand, and likewise upon the demand in reconvention, gave Dwell a verdict for four thousand dollars damages against plaintiff.

An action of jactitation cannot be maintained by a party who is not in possession. But the possession of plaintiff was specially traversed, and yet there was not a particle of evidence offered by him, to maintain that allegation of his petition. He argues that this issue of possession was made in the form of an exception, which was overruled. But such does not appear to have been the understanding of the District Judge, who charged the jury é that the issues of possession and title were both before them. Neither can we say that he erred. The entry on the minutes of the court is as follows :

“ The court, considering that the exceptions filed by the defendants, go to the merits of the cause, it is ordered that the said exceptions be dismissed, with costs.”

This order was made upon the exception being fixed separately for trial before the court, there being already a jury prayed in the cause, by whom the cause was subsequently tried.

The exception of want of possession presented an issue of fact, upon an essential part of plaintiff’s case, in regard to which the burden of proof was upon plaintiff; and as no proof upon the point was tendered on the trial of the exception, it is not seen how the Judge could have put this exception out of court. We concur with the Judge below, in considering that the question of possession was before the jury for decision.

The next point that is made by appellant in this court is, that there was no issue joined upon Durell’s reconventional claim for damages. But even supposing that it is usual and necessary to join issue upon a r.cconvention, of which we say nothing, plaintiff went to trial without making that objection. See Erwin v. Bank of Kentucky, 5 An. It was not even made one of the numerous grounds of the plaintiff’s application in the court below for a new trial.

It is not necessary to examine plaintiff’s objections to the warrantor’s proof of title, inasmuch as jDlaintiff having made no proof of possession, his adversaries wore, in strictness, not put upon proof of title in themselves.

The damages allowed by the jury, seem to bo sustained by the evidence.

Judgment affirmed, with costs.