Dugas v. Truxillo , 15 La. Ann. 116 ( 1860 )

Merrick, 0. J.

This is the second appeal taken in this case, and there is a motion to dismiss the same in consequence, as alleged, of the failure by appellants to prosecute tho former appeal. That appeal was dismissed on motion of the appellees, and cannot be considered as an abandonment of the appeal by the appellants. The second appeal having been taken within the year, is valid under the authority of the case of Smith v. Vanhille, 11 La. 382. Tho motion is, therefore, overruled.

This is another suit growing out of tho surveys of certain back concessions on the Lafourche, made by Grinage efi Bonnet in 1822-1825, the history of which may bo read in tho several cases of Kittridge against E. Landry, G. Breaud, Du-gas, Breaud, Landry and Dugas, reported in 2 Bob., pp. 40, 72, 85 ; 4 Bob. 79, 6 Bob. 478 and 482.

The original front concession of tho tract claimed by the plaintiffs was confirmed to one Como, and the rear concession was entered in the name of Charles Maurin. Between the years 1822 and 1825 inclusive, the back concession of this tract with some others was surveyed by the United States Deputy Surveyor, Bonnet, but this survey was never approved. Instead of protracting the side lines of the original concessions in their proper direction, they were made to deflect, so that portions of each tract lay transversely in the rear of some other tract. In 1830, the United States caused a regular survey of the back concessions, by extending the side lines so as to embrace the quantity due to each front tract.

In 1833, the authors of'thc respective parties to tho present suit, and some others entered into a notarial agreement to respect and maintain the lines run by Bonnet.

The land in controversy is that brought in conflict by the two surveys. See 2 Rol). 70 and 87.

The plaintiffs claim that the survey made and approved in 1830 shall prevail. The defendants say that the notarial agreement entered into before Jean Matcrre by the plaintiffs’ author, Jean Dugas, is obligatory upon the plaintiffs. It is as follows, viz :

“ Lesquels comparaos, considérant qu’il s’est élevé des diffieultés de la part de certains acquéreurs de partió des doubles concessions acquises par les comparaos, lours représentans ou lours prédécesseurs, sur les terres maintenant occupées par partie des sns-nommés, lesquels acquéreurs se refusent ou pourraient so refuser par la suite a acquitter le prix des terres achetées par eux sous le titre de doubles concessions. En conséquence, les dits Sieurs Anché Leblanc, Jean Dugas, Maxile Leblanc, Fierre Blanchard, Armancl Landry, Simonet Leblanc, Ursin Leblanc, Raphael Moliere, Valery Brand, Eugene Landry et Jeannet Landry déclaront persisten a maintenir et a considéror Farpentage fait, les ligues tirées et les bornes posees par L. AuguUe Bonnet, député arpenteur des Etats-Unis poúr l’Etat de la Louisiaue comme bons et valables par rapport a eux ou Ieurs ayanscause. Bien ontendu, cependant, que le Sr. André Leblanc déclare ne plus maintenir le présent acte aussitót qu’il s’éléverait des contestations judiciaires qui lui deviendraient préjudiciables et qui tendraient a changer la ligne inférieure de son habitation, telle qu’elle est maintenant, n’importe de quelle part puisso venir la dite contestation. Dont acte, &c.”

The judgment of the lower court was a final judgment in favor of the defendants, and the plaintiffs appeal.

There are two grounds which justify a judgment of nonsuit, instead of a judgment quieting defendant’s title.

The first is the fact, 'that at the time of the commencement of the suit Murille Landry had no interest in plaintiff’s title, and the court erred in permitting the act of retrocession from the heirs of Henry Landry to him, which was passed after the commencement of the suit, to be offered in evidence. It is true, Murille Landry, after he had acquired title, might have intervened in the suit, but this right did not render valid his original suit. See 0. P.15; 3 La. 300.

The second ground is, that the plaintiffs cannot, in this form of action, and with their present allegations, and the present parties to this suit as defendants, attack the Materre act, which is a bar to their action so long as the same remains in force. 1 An. 38. As they are not permitted to question that act in this suit, so they ought not to be precluded by any judgment based upon it.

Whether error or the violation of the rights of any of the parties to the act by the vendees of other parties to the same, will give rise to the action of rescission or to any other action, or whether such action may or may not be prescribed, are questions upon which it must not bo inferred that -we have formed any opinion.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendants as in ease of a nonsuit, and the like judgment on the demand in warranty, the defendants paying the ,costs of the appeal and their calls in warranty (which they moved to dismiss), and the plaintiffs all other costs of the lower court.