
    No. 587.
    Mrs. Olympe Boisse, wife, v. George Hederick.
    Ajudmentof the lower court can only be amended in the appellate court in favor of appellants or appellees; it cannot be amended between appellees.
    Appeal from the Sixth District Court of New Orleans, Leaumont, J.
    
      J. O. Wallace, for plaintiff.
    
      McOay & Luzenberg, for Campbell.
   InsiiEY, J.

The facts of this petitory action, which the record discloses, are these:

The plaintiff purchased, on the 17th January, 1855, from Robert M. McAlpin, the lot of ground described in her petition, and designated on the plan of E. Surgi as the lot number one, of the square, comprised within Laurent, Josephine, White and St. Andrew streets, being the same property which McAlpin, on the 30th August, 1810, purchased from George Pritchard.

The defendant was in possession of the lot at the inception of this suit.

He sets up title to it under a sale made to him on the 21st August, 1857, by Henry Doll, whom he calls in warranty, and his vendor calls in warranty his author, D. W. C. Campbell, who in turn cites his warantors,- the plaintiff and defendant in the suit of Fanning v. Purcell, Campbell having acquired it at a constable’s sale made therein.

The property described in the several conveyances is not tho lot one claimed by the plaintiff, but the lot number seven in the square No. 261, in the Fourth District of the city, as per plan of J, A. Puejo.

The plans of Surgí and Puejo represent separate halves of the same square, so that lot number one of Surgi’s plan, cannot figure in Puejo’s plan.

The title and ownership of the lot one, to and in the plantiff, is clearly established.

There was judgment in the lower court for the plaintiff for lot number one claimed by her, with .the improvements, but she was condemned, at the same time, to pay the defendant, Hederick, the sum of three hundred and ten dollars, and Henry Doll, two hundred dollars, for improvements, placed by them on her property. It was also decreed that the sales from Doll to Hederick and from Campbell to Doll, not of lot number one, but of lot number seven, which was not in controversy, be declared void, and that the prices respectively paid by each of the vendees be returned to him by his vendor, and from this judgment D. W. C. Campbell alone appealed.

As Campbell warranted the title to lot number seven sold by him, and not to lot number one, no action of warranty in this case lay against him; and he is therefore entitled to relief; but we can only amend the judgment as to him, as the other parties are all appellees and not appellants. 15 An. 433, 448; 16 An. 193; 17 An. 263.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be so amended as to strike from it so much thereof as annuls the sale of lot number seven from D. W. C. Campbell to Henry Doll; also, that part of it which condemns Campell to refund Henry Doll the sum of four hundred . dollars, the price of the lot paid to Campbell, with legal interest from judicial demand; and also, that part of it which condemned him to pay one half of the costs of suit; and it is further ordered that the costs of appeal be paid by Henry Doll, who called D. W. C. Campbell in warranty.  