
    C. G. Williams et al. v. Donat Leblanc.
    A judgment in a petitory action will lie received as proof against llioso who were parties to the suit as warrantors.
    Relief hy amendment of the judgment of the court below cannot be extended to one appellee against another appellee.
    The warrantor is not liable for counsel fees paid hy the party calling him in warranty.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.
    
      JA. T. H. Lewis & Porter and Swayze <& Moore, for plaintiffs. J. E. King, for defendant. Dupré & Garland and B. F. Linton, for warrantor and appellant.
   Buchanan, J.

This is a petitory action for a tract of land measuring six ar-pents front on the Oourtableau Bayou, by forty arpents in depth, being the same for which (with other lands) suit was brought by the same plaintiffs against John Close, and judgment rendered by this court at the August term in Opelousas, ISoI. See 12 An., p. SIS.

After judgment rendered in that case, it appears that plaintiffs discovered that the land embraced in the present suit had been in the possession of the present defendant Donat Leblanc, from a date antecedent to the institution of their previous suit above mentioned. They have, therefore, instituted the present suit against Donat Leblanc, the actual possessor of the land.

L Donat Leblanc has called in warranty his vendors, Honoré Déjean and Casimir Leblanc, who appeared and called in warranty their vendor, John Close. The suit of Williams v. Close, decided in 12th An., was offered in evidence by plaintiffs, and was received as proof against the warrantors, who were parties to that suit. This ruling was correct. The warrantors were the real defendants in this action, and, as to them, the suit in 12th An. was not res inter alios acta. That suit, like the present, was a petitory action, rei vindicettio ; and although the action should properly have been instituted against a party in possession, yet, as the warran-tors, though not in possession, choose to defend the action as if they had been in possession, the judgment rendered therein was binding upon them, as jicti possessors qui liti se dbtulerunt. Mackeldey, Manuel du Droit Romain, section 302,2>a-ragraph 2.

There was judgment in favor of 23laintiffs against the defendant; in'favor of defendant against Honoré Déjean and Casimir Leblanc, his vendors; and in favor of the said Déjean and Leblanc against John Close.

Close alone has appealed; and it is the judgment against him _alone which is open to our revision.

The plaintiffs have answered the appeal, by jrraying an amendment of the judgment as between themselves and the defendant, which allowed a remuneration to defendant for the enhanced value of the land and improvements; but this relief cannot be extended to one appellee against another appellee. The allowance in question, in the judgment of the District Court, was personal to the defendant, who is not before us as appellant.

The judgment appealed from is as follows :

It is further decreed, that the warrantors, Déjean & wife, have judgment against their warrantor, John Close, in his individual capacity, and as administrator of his deceased wife, Euphrosine Barré, for the restitution of the price paid to him for the land, for three hundred dollars counsel fees, and for one thousand four hundred and ninety dollars and 83 cents, being the amount recovered by the defendant from the said Déjean & wife. It is further decreed, that the warrantor, Casimir Leblanc, have judgment against John Close in his individual capacity, and as administrator of the succession of his deceased wife, Euphrosine Barré, for the sum of one hundred dollars, fees of counsel, for four hundred and seventy-five dollars, being the price paid by said Casimir for his land, and for the sum of two hundred and ninety-eight dollars and sixteen cents, the latter sum being' the amount received by the defendant from the said Casimir Leblanc.

This double judgment does not appear to us to be sustained by the evidence.

I. On the 25th of April, 1849, John Close and Euphrosine Barré, his wife, appeared before a Notary Public in the parish of St. Landry, and made a sale of a tract of land of five arpents front to the Bayou Courtableau, left bank, by forty arpents in depth, to their daughter, Euphrosine Close, wife of Honoré Déjean, authorized and assisted by her said husband. The consideration of this sale was a nominal price of one thousand dollars, or five dollars an arpent, laquelle somme do mille piastres est ou sera a déduire de la part ou portion qui reviendra h la dite dame Déjean dans la succession du premier décédé de ses pere et mere, les présens vendeurs, qui alors sera acquittancée sans qu’il soit besoin d’en prendre aucune insertion hypothécaire.”

This recital of the deed shows 2>lainly, that no money whatever was paid by Mrs. Déjean. There was a conveyance to her of a tract of land by her father and mother, in advance of her share in their inheritance, with a stipulation to collate, in the partition of said inheritance with her co-heirs, a sum of one thousand dpi-lars as the value of the advance thus received by her. Mrs. Close has died, hut there is no proof of any partition of her estate, in which a collation has been made by Mrs. Déjean ; and if there had been, Mrs. Déjean’s recourse for restitution would have been against her co-heirs, under the warranty implied in partitions. Close, therefore, owes nothing to Déjean for the price of the land of which defendant has been evicted; for no price was paid by Déjean or his wife, to Close for said land.

Neither does Close owe anything to Déjean for lawyers fees in defending this suit. This point has been repeatedly settled in this court. See Hale v. New Orleans, 13 An., and the cases there cited.

The other items which make up the sum for which judgment is rendered in favor of Déjean against Close, are composed of damages assessed by the judgment in favor of defendant against Déjean; and which, even if proper charges against the latter, (which is not a matter before us,) he has no right to recover of appellant.

II. Casimir Leblanc bought at a public sale, made by order of court, of the effects belonging to the community of acquests between Euphrosine Barré, deceased wife of John Close, and her surviving husband, on the 4th of April, 1853, a tract of wood land measuring eight arpents front, by forty in depth, on the Bayou Courtableau.

On the 18th February, 1854, Casimir Leblanc sold to Donat Leblanc a tract of one and a-half arpents front, by forty arpents in depth, on the Bayou Courta-bleau, which the vendor describes in the deed as belonging to him, “ having acquired the same at the public sale of the succession property of the late widow of Charles Close.” This title does not correspond with that upon which the appellant is called in warranty, The answer of Close to the call in warranty seems, however, to admit the identity of the land conveyed by the two titles; and the argument of his counsel upon the appeal does not call its identity in question. "We may, therefore, suppose the description of Casimir’s title in his deed to Donat to be a clerical error. We consider Close bound to warrant the title of the land sold at probate sale as community property. The price at which it was sold at that sale, was eleven dollars eighty-seven and a-half cents an acre; which for forty acres, the quantity which is covered by the claim of plaintiffs, amounts to four hundred and seventy-five dollars. For this amount the appellant is liable to Casimir Leblanc, his vendee.

There are some other items of damages allowed in favor of Casimir Leblanc by the judgment appealed from, which we reject for the reasons given in relation to the claim of Déjean.

A plea of prescription is filed by defendant, which, if it were an open question, we would think entitled to great attention; for the court in Heirs of O’Conner v. Barré, in 3d Martin, expressly decided that Barré, the author of the title of Close, was a possessor in good faith, and with a good title.

But the decision in 12 An., p. 873, of Williams v. Close, has barred this de-fence as to the appellant; and as to the defendant and his warrantors, who acquired their title less than ten years previous to the institution of the present action, prescription has not run in their favor, independent of the possession of Close, their author.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the call in warranty of the appellant, John Close, by Honoré Déjean, appel-lee, be reversed; and that the said call in warranty be rejected; and it is further decreed, that the judgment of the District Court upon the call in warranty of the appellant, Close, "by Casimir Leblanc, appellee, be amended, and that said Casimir Leblanc do recover of said John Close, upon his said warranty, the sum of four hundred and seventy-five dollars, with costs of his said call in warranty in the District Court. And it is decreed, lastly, that the appellee, Honoré Léjean, pay costs of his call in warranty in the District Court; and that the appellees, Léjean and Casimir Leblanc, pay costs of appeal.  