
    No. 1256.
    John M. Bach v. M. Verbois et als.
    Tnc assertion of title by a third party to property about to bo hold at judicial sale gives him a sninding in court, by third opposition, to claim the pi'oceods of the sale in preference to others, and bv ihnt means to ratify tho sale.
    A PPEAL from the District Court, Parish of East Baton Rouge, Arer;/, ,T.
    
    
      ■f. TF. Burgess, for plaintiff.
    
      Dunn, Barrow & Pope, for defendant'.
   ItiSIiEY, J.

A judicial partition of a certain square of ground situate and lying in the city of Baton Rouge, designated on the plau thereof its the, “ Royal Square,” having been entered in the above entitled suit, mid a public sale thereof for that purpose effected, the city of Baton Rouge intervened as third opponents, claiming the whole proceeds of the sale as tho sole owners of the property, in virtue of a title which they derived from the United States. :

For the reasons hereinafter stated, tho Court sustained a motion to dismiss the opposition, because no legal cause was shown in the opponent's petition. “Tho petition oí tho opponents,” said the Judge, “in my judgment, shows no right whatever to tho proceeds of the sale of the land heretofore ordered by this Court to bo sold to effect a partition. The prayer of the said petition asks that tho owners be declared the owners of the land, and asks also that tho price for which it has been sold be paid to them. They also claim that by virtue of an act of Congress conferring upon them the ownership of the laud in trust for the owners of it, and for those who have interests in and to it, they have a lien aud privilege upon it, and, consequently, are entitled to the proceeds. Unless they were specially impowered by the act creating the trust to sell the. sumo for the benefit of the cestui, que trust, or bo authorized by the Court upon a proper legal showing for that purpose to dispose of it, they could not soil it, and if they could not sell it, they could not ratify a sale of it, and therefore would have no right to claim the proceeds of the sale, in case such sale were made, whether legally or illegally by parties to whom it did not belong. I am of opinion, therefore, that they should resort to a petitory action against those in possession of the land, to assert their rights, if any they have, and that they cannot, in the form now attempted, have them adjudicated. ”

From a careful examination of the opponent’s petition, wo think Uin Gourtbelow erred in sustaining the motion, and dismissing tho opposition. All the allegations in their petition must he considered as true, and after setting forth the grant by tho United States to them of the premises, they aver that when tho grant was made, there were no other owners thereof but the United States, whose title they held absolutely and unconditionally in fee simple. This would certainly give them a standing in Court under Article 396, part 1, et seq, C. P., to claim the price in preference to others, who had no title to the land, and by that means ratify the sale.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court dismissing the opposition he annulled, avoided and reversed, and it is further ordered, that the opposition be reinstated, and tho case remanded to be proceeded in according to law, at the costs of the appellees.  