
    HEWITT vs. SEATON ET AL.
    Western Dist.
    October, 1839.
    APTEAL IROM THE COURT OF THE NINTH JUDICIAL DISTRICT, FOR THE PARISH OF MADISON, THE JUDGE THEREOF PRESIDING.
    In an action of slander of title, claiming damages, it is not necessary to allege and show that the defendant is in possession; and his exception, disclaiming possession and title, will not authorize the dismissal of the suit. The plaintiff has the right to try the issue of slander of title, and to show damages, if he can.
    This is in the nature of an action of slander of title, in which the plaintiff claims to be the owner of a tract of seventy-seven acres of land, but the title to which, he alleges, is slandered by the defendants, who, he alleges, claim title thereto. He prays that they be cited to set forth their title, if any they have, and that, in failing to do so, they be forever enjoined from setting up title, hereafter, and that the possession be delivered to him by the sheriff, and -he be decreed the true owner thereof.
    The defendants filed an exception to the maintenance of this action, because they were not at the time, nor before the institution of suit, in the possession of the land claimed ; nor do they set up any title thereto, and they deny that the plaintiff has any. They pray to be dismissed, with their costs.
    There was no evidence that the defendants were ever in possession of the land, or claimed it.
    The court was of opinion the action was a petitory one, and not an action for slander of title; that the evidence supported the defendant’s exception. The suit was dismissed, and the plaintiff appealed.
    
      Copley, for plaintiff.
    
      Stacy, contra.
   Morphy, J.,

delivered the opinion of the court.

The petitioner sets forth that he is the true and lawful owner of a certain tract of land -r that the defendants set up title to the said land, and prevent him from taking quiet and peaceable possession of the premises, by reasou of which he has suffered damages to the amount of ten thousand dqllars: he prays, that they may be cited to make out and establish their title to the said land, if any they have, and that, should they fail to show a good arid valid title, they may be decreed to pay him said damages; that they be enjoined from slandering his title, or setting up any in themselves, and that the land be delivered to him by the sheriff. The defendants except to plaintiff’s action, on the ground that they are not in possession of the land- sued for; they disclaim all title to the same, and plead a general denial to all plaintiff’s allegations. The judge '(i quo, considering this action as a petitory one, sustained the exception of defendants, and dismissed the petition. The plaintiff appealed.

It appears to us that the petition was improperly dismissed. The disclaimer of defendants put an end to the question of title, but left to be tried the issue joined as to the damages claimed by the plaintiff for the slander of his title, and his having been prevented by defendants from taking peaceable possession of his property. The petition does not allege that defendants are in possession, which averment it would have been incumbent on him to make and prove before he could maintain a petitory action; his main object seems to have been to hold defendants to the proof of the title, or right, which they had publicly set up to his land. Their disclaimer of title in court could not prevent plaintiff from having the facts alleged by him investigated, and his damages awarded him, if he is entitled to any.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and, this case remanded for further proceedings, according to law, and that defendants pay the costs of this appeal.  