
    No. 7884.
    E. de St. Romes vs. City of New Orleans.
    An actual physical ouster is not indispensably necessary to constitute an eviction.
    If a final decree of a competent court establishing1 title iu a third person is shewn, the loss of the land will be considered certain. The putting such decree in evidence by the party against whom it was rendered is a virtual dispossession, and compulsory, because the decree commands eviction, and is enforceable;
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.
    
      Olías. Eduque for Plaintiff and Appellant:
    An outstanding perfect title in a third person is an eviction as between vendor and vendee. 14 An. 717 j 13 An. 499; 7 L. 286; 10 L. 120; 1 R. 362; 11 It. 397; Duvergier, t. 1, Ho. 313; Duranton, t. 16, Ho. 249; Troplong, Ho. 413; Pothier, Vente, Ho. 97 ; Marcado, t. 6, p. 252.
    The warranty of the first vendor includes the losses occasioned to the last vendee, by the eviction. C-C. 2506; C. P. 385; C. H. 1630; Duranton, Vente, t. 6, Ho. 296; Troplong, Vente, 1.1, fo. 557-fi28; Dalloz, 1827, part 1st, p. 93; Marcadé, t. 6, fo. 273, 276; Pothier, Vente, Ho. 147-149; Journal du Palais, 1842, vol. 2, p. 60; Dalloz, 1831, part 2d, p. 851; 1826, part 2, p. 177.
    
      G. F. B-uelc, City Attorney, and Wynne Rogers for Defendant and Appellee:
    1. An action of warranty cannot be maintained without proof of actual dispossession or eviction, or that the plaintiff holds the property under a new and different title from that derived through the defendant warrantor. 1 Rob. 262; 7 La. 801; 11 La. 320; 11 Rob 397 ; 13 An. 499; 26 An. 588.
    
      2. As long as the plaintiff is in actual possession, under a title under which lie continues to acquire, by prescription, against the “ ©victor,” no eviction has taken place.
    3. A party who goes to trial, voluntarily offers his evidence and submits his cause, is not entitled to a non-suit, if ho takes the chances of a judgment on the case as made out. He must he presumed to have pioved every existing fact; and if this evidence does not make out bis case, a final judgment must be rendered against him.
    4. Taxes paid, and value of pennanent improvements, constitute a claim against the “©victor,” and not against the warrantor. 10 Hob. 178, Laizer vs. G-eneres ; 12 An. 534, Stanilusvs Weber,
    5. Use and possession are in lion of interest. 13 An. 499 ; 6 An. 304 ; 3 La. 395; 16 lia. 35.
    G. Under Art. 2482, Code of 182G, 2505 Ii. O. C.. any warrantor is only liable for the prico he received for the property. In this particular case, even if the court should deem tlie law different, no other amount could he award* d, because there is no proof of any increase, etc. 5 H. S. 559; 6 An. 297, Burrows va. Pierce; 10 An. 259; 14 An. 722,757; 12 An. 534.
   The opinion of the Court was delivered by

Manning, J.

Tlie City of New Orleans, claiming ownership of the Blanc, tract of land, had it divided into lots and sold them to various parties. These 'purchasers sold to others, and finally through several mesne conveyances Mrs. St. Romes acquired a number of the lots. Her title was successfully assailed by Mrs. Gaines, who obtained a decree in tlie U. S. Circuit Court, in a suit against Mrs. St. Romes, evicting her from the premises, which decree is certified to be final and executory. There lias not been any physical dispossession or ouster, nor could there well be, as the land is vacant.

The judge below noil-suited the plaintiff for want of evidence of forced or voluntary dispossession, and also for want “ of evidence that she holds the property under a title which is not that transferred to her by her vendor.”

The doctrine is well established that an actual ouster is not. absolutely necessary in order to constitute an eviction. Landry vs. Garnet, 1 Rob. 363; Thomas vs. Clement, XI Rob. 398. The loss of tlie land will be considered certain if a perfect outstanding title to a. third person is shewn to exist. McDonald vs. Vaughan, 14 Ann. 716.

The best evidence of dispossession that could be given by the plaintiff is the record of tlie suit against her transferror, in which there has been rendered a judgment in favor of a third person evicting her. Tlie present suit is a compulsory abandonment of the land made in obedience to a judicial decree. The plaintiff is the transferree of Mrs. St. Romes.

The judgment of non-suit, is error, and therefore,

It is ordered and decreed that the judgment of tlie lower court is reversed, and the cause is remanded thereto to be proceeded with in due course, the appellee paying costs of appeal.  