
    (71 South. 203)
    No. 20213.
    STATE ex rel. ALBRITTON v. GRACE, Register.
    (Oct. 18, 1915.
    On Rehearing, March 20, 1916.)
    
      (Syllabus by the Court.)
    
    1. Mandamus <&wkey;168(4) — Procedure — Evidence.
    Where, in a proceeding by mandamus to compel the register of the State Land Office to recognize and relocate land warrants, issued in 1860, or “refund” warrants in lieu thereof, to an alleged assignee of the heirs of the original purchaser, alleged to be deceased, there is no proof of heirship, or of the existence, or devolution, of the warrants, at the death of the purchaser, and the warrants are neither produced nor accounted for, the proceeding is properly dismissed.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 374; Dec. Dig. &wkey;>168(4).j
    On Rehearing.
    2. Mandamus <&wkey;168(2) — Procedure — Bub-den oe Proof.
    The heirship of relator’s vendors being a necessary link in his chain of title to the land warrants in dispute, the burden is on him to prove with legal certainty that his vendors are the sole heirs of the original holders of the warrants.
    [Ed. Note. — For other eases, see Mandamus, Gent. Dig. § 372; Dec. Dig. &wkey;168(2).]
    3. Appeal and Error <&wkey;1153 — Determination — Dismissal—Involuntary NonsuitGrounds.
    A judgment of nonsuit should be entered, where it is probable that material evidence, not adduced on the trial, may hereafter be procured.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-A512; Dec. Dig. <&wkey;> 1153.]
    Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.
    Mandamus by the State, on the relation of Alvin R. Albritton, against Fred J. Grace, Register. From a judgment for defendant, relator appeals.
    Judgment amended, and suit dismissed.
    W. Carruth Jones, Alvin R. Albritton, and Justin C. Daspit, all of Baton Rouge, for appellant. R. G. Pleasant, Atty. Gen. (G. A. Gondran, of New Orleans, of counsel), for appellee.
   Statement of the Case.

MONROE, C. J.

Relator has appealed from a judgment rejecting his application for a writ of mandamus, directing the register of the State Land Office to locate certain land warrants, or issue other warrants “in lieu” thereof, and locate the same on land constituting the bed of Dolet Lake, in the parish of De Soto.

Paragraph 8 of the petition reads:

“Your relator shows that he is the true and lawful owner of the following described swamp land warrants, or certificates, issued, under authority of Act 247 of 1855, by the State of Louisiana, to John Laidlaw, and located, by the said Laidlaw, on July 2, 1860, on lands, the title to which was never vested in the state of Louisiana, to wit:
“Warrant No. S922 N. S. H. for 128.50 acres.
“Warrant No. 8924 N. S. H. for 142.16 acres.
Warrant No. 8930 N. S. H. for 271.23 acres.
“Warrant No. 8934 N. S. H. for 237.50 acres.
“Making a total of 779.39 acres.”

Paragraph 8 of the answer reads:

“Defendant denies that relator is the true and lawful owner of the warrants described in paragraph 8 of relator’s petition, issued, under authority of Act No. 247 of 1855, by the state of Louisiana, to John Laidlaw, but admits that said warrants were located by the said Laid-law as averred in said paragraph 8.”

Opinion.

We find in the record what purports to be a copy of an act of procuration, executed by Mrs. Alexina Bryan Laycock, authorized by her husband, L. L. Laycock, before a notary public in Victoria county, Tex., which names Alexander D. Bryan as attorney in fact of Mrs. Laycock, for, and in her name and stead, to grant, bargain, and sell unto Alvin E. Albritton, or any other person, the “following described property, to wit, a certain lot of state land warrants, issued by the state of Louisiana to John Laidlaw and to the widow and heirs of John Laidlaw.”

The instrument contains the recital that Mrs. Laycock, Eliza L. Laidlaw, and Alexander D. Bryan “are the sole and only heirs of the late John Laidlaw and his widow”; but, there is no further description of the warrants which Alexander D. Bryan is thus authorized to sell, nor is there any stronger ■evidence in the record than the ex parte and unsworn statement, thus made, that the persons so named are the heirs, and the only heirs, of John. Laidlaw and his wife, nor .any statement whatever, sworn or unsworn, that John Laidlaw and his wife owned any land warrants, when they, he, or she, died, or that their heirs ever came into possession of such warrants; and no such warrants were offered in evidence, or are to be found in the record, nor is their absence in any manner accounted for. There is another instrument copied in the record, purporting to have been executed by Alexander D. Bryan, for himself and Mrs. Laycock, and by Eliza L. Laidlaw, a feme sole, which also declares that the appearers are the heirs of John Laidlaw and his wife, and, further, that they sell and convey the warrants described in the petition to the relator, but there is, still, no proof of heirship, or of the existence or devolution of the warrants, upon the death of the original owner. We conclude, then, after having spent some time in the investigation of the various issues that have been raised in the case, that .relator must necessarily go out of court by reason of his failure to show that the warrants upon which he sues were owned by the original purchaser at the time of his death, and devolved upon his heirs; that his (relator’s) immediate authors are the heirs of the original purchaser; or that the warrants were ever in their possession, or ever came into his (relator’s) possession.

The judgment appealed from is therefore affirmed at the cost of the relator.

On Rehearing.

LAND, J.

The answer denied that the relator was the owner of the warrants located by John Laidlaw, and that the relator was the heir or the legal representative of the said Laidlaw.

On the trial, the relator offered in evidence a certain instrument signed by certain persons, claiming to be the sole heirs of John Laidlaw, purporting to sell, convey, and assign the said warrants to the relator. But the relator adduced no evidence to prove that his vendors were the heirs of said Laid-law. The warrants were located by John Laidlaw in July, 1860. The right to relocate the warrants vested in his succession. The evidence does not show when John Laidlaw died, or who were his legal heirs, successors, or legal representatives.

The relator, in his petition, claims ownership of the original warrants, but does not disclose the origin of his title. As land warrants are not negotiable instruments in favor of bearer, relator’s possession of them is no evidence of legal title. As to the assignment of the warrants, the heirship of relator’s vendors being a necessary link in his chain of title should have been proven with legal certainty. Solari v. Barras, 45 La. Ann. 1132, 13 South. 627. As the defect in the evidence may hereafter be supplied, we think that the judgment should be one of nonsuit.

It is therefore ordered that our former decree herein be reformed so as to read: The judgment appealed from is amended so as to dismiss this suit as in case of nonsuit, and as thus amended is affirmed; cost of appeal to be paid by plaintiff and appellant.

PROYOSTY, J., recused.  