
    Green vs. Hudson’s Syndics.
    Western Dist.
    
      August, 1834,
    APPEAL PROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Proof of possession, is indispensable to support a title, based on the plea of prescription.
    The vendor, from whom the defendant’s title is derived, is an incompetent witness, to prove the possession of the latter, so as to form the basis of a title, by a prescription.
    The vendor is an incompetent witness, on the ¿round of interest, for a party deriving title from him, even when his deed to his vendee, contains no clause of warranty.
    The vendor is bound in warranty to his vendee, when his deed of sale does not exclude it. His obligation extends at least so far, as to require him to refund, with interest, in case of eviction.
    This is an action, instituted to obtain a remuneration in damages, and a partition of a tract of seven hundred and twenty arpents of land, which the plaintiff alleges he purchased, in conjunction with one R. C. Walker, at the probate sale of the succession of Mrs. Sarah Rowell, deceased, situated on the Mississippi River, at the mouth of Sandy
    
      Creek, in the parish of East Feliciana. The plaintiff further alleges, that since the purchase, Walker, has sold and conveyed his interest, in the said tract of land, to James Hudson, of West Feliciana. That he has himself, since said purchase, sold one-half of his interest in the premises, to one J. C. Walker, who, together with Hudson, is in possession .of the most valuable part of the land. He urges, that in consequence of said possession, he is entitled to remuneration, from his said co-proprietors, Hudson and Walker, which he estimates at ten thousand dollars ; and prays for a partition of the land, and judgment for the difference in value of that portion held by Hudson and Walker, against them, according to his estimate as alleged; and for damages for the use and occupation of the premises, by them.
    
      Hudson, having made a cessio bonorum,
    
    syndics were appointed to represent his estate. The syndics, after their appointment, prayed oyer of all the papers and documents, on which the plaintiff relies, in support of his title, to the land claimed in the petition. The documents comprising the proceedings of the Probate Court, and sale of the land, were ordered to be exhibited, and the prayer, as to the remainder, was overruled by the court. The defendants excepted to this part of the opinion of the court.
    The plaintiff filed a declaration, in writing, stating that the sale from him to Walker, was cancelled, and that he claimed one moiety of the land in contest, under purchase at probate sale.
    Hudson’s syndics answered to the merits. They averred that Hudson held two hundred and ninety-eight acres of the tract of land in question, under an outstanding title, adverse to that derived from the probate sale-, and under which the' plaintiff claims; which was derived from a sheriff’s sale, for taxes due on said land, by one Samuel Moore, made the 29th June, 1S18, and which was purchased by one J. P. Michel, who sold and conveyed it to R. and J. Caruthers, by a deed without clause of warranty, and who sold it to the insolvent Hudson. The syndics further aver, that the plaintiff cannot maintain his action of partition, until the title to the two hundred and ninety-eight acres is first settled. .They pray judgment, recognizing this title, and that the plaintiff’s suit be dismissed.
    The syndics also pleaded a general denial, to all the plaintiff’s claim, embraced by the two hundred and ninety-eight acre tract, and prescription of ten years continued possession, under a good and legal title.
    On these issues, the parties went to trial. In order to support the plea of prescription, the defendants’ counsel offered Michel, the purchaser of the two hundred and ninety-eight acres of the disputed premises, at sheriff’s sale, to prove possession in the defendants. The introduction of this witness, was opposed by the plaintiff’s counsel, on the score of interest. His competency was urged, on the grounds that he sold and conveyed the land in contest, to his vendee, by a deed without warranty, and that he was not thereby responsible in warranty. The court received him, and the plaintiff’s counsel took his bill of exceptions to the decision, admitting the witness. The plaintiff finally obtained judgment, from which the defendants appealed.
    
      Lawson and Ripley, for the plaintiff.
    
      Downs and Saunders, for the defendants.
   Mathews, J.,

delivered the opinion of the court.

In this case, the plaintiff alleges, that he has title to an undivided half of a certain tract of land, as described in his petition, containing seven hundred and twenty arpents, and that the defendants are joint owners with him, of the other moiety of said land. Partition is prayed for, in conformity to the alleged rights and claims of the parties.

On the part of the defendant Hudson, a title is set up to two hundred and ninety-eight acres, being a part of said tract of seven hundred and twenty arpents, derived from a source different, and independent of the title alleged by the plaintiff, and pleads a right by prescription, &c. The original document of title, offered in support of the prescription pleaded, is a deed made in pursuance of a sale for taxes, wherein the assessment was made against one Samuel Moore, on a tract of land supposed to contain three hundred and fifty-six acres, a part of which was sold, amounting to two hundred and ninety eight acres, to a certain John P. Michel, who bid the amount of taxes and costs, for this portion of the whole land assessed. Michel afterwards sold to Richard and John Caruthers, who sold and conveyed to the defendant Hudson, The deed from Michel to his vendees, contains no clause of warranty, neither is there any clause which excludes it.

Proof of pospeusabie^o support a tide based the plea ot prescription.

f^^-ho^the defendant’s title incompetentwitpossession of 'the latter, so as to a title by apre-

dor is an incompetent ^olnd of'intei®st>. for a deriving title from him, even to^his'* vendee “a*‘l“lsof ranty.

bo^ TT^varranty to his vendec "when his deed of sale does '¿“j. ^biigatiot ext<r.nds at least so far as to require him to re-es^in^asT^of eviotion-

Judgment was rendered in the court below, in favor of the plaintiff, from which the defendants appealed.

The pleadings in this case, clearly involve a question of title. The basis of that set up on the part of the defendants, is prescription. To support a title of this kind, proof of possession is indispensable. In order to establish this fact, they offered as a witness, Michel, from whom the title under which they claim, is derived, who was objected to, as incom- , , , . , , , petentbythe plaintm; he was, however, received by the court, and a bill of exceptions taken. The witness thus offered, is clearly incompetent, on the ground of interest. He is bound in warranty, on his deed to the Caruthers, for that act does not exclude it. His obligation extends, at least, to require him to refund the price, with interest, (if no further) in the * ' * event of eviction. See La. Code, art. 2476, et seq.

The judge below erred in admitting the witness. And as it is possible, that the defendants might have proven the fact r , . . .. . , , 1 , of possession by other testimony, it they had not been led into error by the decision of the judge a quo in allowing their witness to testify who was legally incompetent. Under these circumstances, we think the cause ought to be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be- avoided, reversed and annulled, and that the cause be sent back to said court, to be tried de novo. The appellee to pay the costs of this appeal.  