
    ALLEN v. BUTLER.
    No. 3360.
    Court of Appeal of Louisiana. First Circuit.
    March 15, 1951.
    
    Reid & Reid, Hammond, for appellant.
    Ponder & Ponder, Amite, for appellee.
   ELLIS, Judge.

This is a petitory action in which the plaintiff sets forth his chain of title to the Nid> of Lot 2 of Section 6 T 2 S R 5 E, Parish of St. Helena, which contained approximately eleven acres. Plaintiff further alleged that no one is in actual physical possession of the property but that the defendant, J. Lindsey Butler, is claiming ownership by a deed recorded in the conveyance records of St. Helena Parish, Louisiana, and plaintiff, therefore, alleged that he is entitled to bring this action to try title in accordance with Act 38 of 1908, LSA-RS 13:5062.

The suit was filed September 28, 1944 and answer filed June 9, 1947. In the answer, the defendant in Article I alleged that plaintiff’s petition neither set forth nor disclosed any cause or right of action. Defendant then denied plaintiff’s petition in general and set up a reconventional demand in which he set forth that Mrs. Minnie Allen Butler, wife of the defendant, was the owner of the property, and that she and her authors in title have been in peaceful, notorious, public, unequivocal, continuous and uninterrupted possession under color of title by the prescriptive period of 10 and 30 years.

There was judgment dismissing plaintiff’s suit at his cost and decreeing the defendant to be the owner of the of Lot 2, Section 6 T 2 S R 5 E, Parish of St. Helena, State of Louisiana.

From this judgment the plaintiff has appealed.

The evidence clearly shows that the defendant, J. Lindsey Butler, was not and never did claim to be the owner of the property in dispute. The deeds offered in evidence show conclusively that his wife, Mrs. Minnie Allen Butler, who is a sister of the plaintiff, claimed to be the owner of the property in dispute. The judgment of the District Court is erroneous.in that it decrees the defendant, J. Lindsey Butler, to be the owner of the property in dispute, when he does not even make such a claim. On the contrary, either the plaintiff or Mrs. Minnie Allen Butler, wife of defendant, is the owner. Plaintiff should have sued Mrs. Minnie Allen Butler, wife of defendant, and therefore a judgment in this case would not bind her in that she was not made a party to the suit nor did she intervene and make herself a party defendant.

It is, therefore, ordered that the judgment of the District Court be reversed and set aside and that plaintiff’s suit be dismissed as of non-suit at his cost.  