Semmes v. Burbank , 28 La. Ann. 694 ( 1876 )

Wyly, J.

This is a petitory action for recovery of one half of lot No. 15, fronting on Edward street, in the square bounded by Annunciation, Benjamin, St. Thomas, and Edward streets. Defendant claims title under the decree of confiscation and the sale by the Marshal under a writ of venditioni exponas in 1865. He admits the property belonged to plaintiff, but contends that the title was conveyed to him by said proceedings. Plaintiff concedes the regularity of the confiscation proceedings, but avers the property in question was not embraced therein.

It appears plaintiff owned several lots in the square mentioned. By the decree of condemnation his title was divested of lots fourteen, sixteen, seventeen, and part of eighteen. Lot fifteen was not mentioned either in the libel, the monition, or the decree of condemnation. Tho venditioni exponas authorized the sale of the property described in tho libel. The Marshal’s deed, however, embraced lot fifteen.

It is clear the Marshal could only make a valid title to the property embraced in the decree of condemnation, for that was all that became vested in the United States; and he could not sell property not authorized by the writ put into his hands for execution.

Plaintiff’s title has never been divested as to the property in controversy, and he must recover in this suit.

He claims rent for his property unlawfully held and detained by defendant. From the evidence we fix the rent at the rate of five dollars per month from twenty-seventh December, 1866.

It is therefore ordered that the judgment herein in favor of plaintiff be amended so as to condemn defendant to pay plaintiff five dollars per month for rent from twenty-seventh day of December, 1866, until possession of said property is delivered to plaintiff, and as amended it bo affirmed. It is further ordered that defendant pay costs of both courts. Rehearing refused.