
    No. 3133.
    L. Dupre v. Thomas B. Helm—G. P. Smith, Warrantor.
    In a petitory action for a tract of land, if tlie plaintiff shows a title translative of property, and the defendant shows none, the plaintiff will recover. In such a case, if the defendant and his warrantor are both appellees, no amendment of the judgment (as between them) can be made by the appellate court, but the rights of the defendant against his warrantor will be reserved in the decree awarding the land to the plaintiff.
    APPEAL from the Ninth District Court, parish of Rapides.
    
      Osborn, J. T. 0. Manning, for plaintiff and appellant.
    
      B. A. Hunter, for defendant and appellee.
    
      M. Byan, for warrantor, appellee.
   Howe, J.

This is a petitory action for a tract of laud in Rapides parish, the nineteenth section of township one, south, range two, east, southwestern district of Louisiana. There is no dispute about the facts. The plaintiff bought from the State this nineteenth section in 1857 and his patent therefor covers the land in controversy. The defendant claims under a sale of the sixteenth section made by the parish superintendent of public schools. The statement of facts says of the tract: “ It was sold as the sixteenth section under the school law and purchased by David Cheney or his heirs, which latter are the present warrantors. The defendant acquired title from the heirs of David Cheney and went into possession on or about the twelfth February, 1855.”

It seems clear that the plaintiff ought to recover. The land in dispute is the nineteenth section. The plaintiff purchased it from the State and holds a patent for it. The defendant’s vendors had no title to it, since they got none by their purchase of another (the sixteenth) section from the parish superintendent, and, therefore, the defendant shows no title.

The judgment against tho plaintiff must be reversed. The defendant and warrantor being both appellees we can not, as requested, change the judgment as between them, but their respective rights may bo reserved.

It is therefore ordered that the judgment appealed from be avoided and reversed. It is further ordered that the plaintiff have judgment, against the defendant, recognizing the said plaintiff to be the owner of the following tract of land, situate in the parish of Rapides, viz s the nineteenth section of township one, south, range two, east, in the southwestern district of Louisiana, containing six hundred and thirty-nine 28-100 acres, and that he be put in possession thereof in accordance with law, and that the defendant pay costs. It is further ordered that the claims of the defendant against the warrantor and of the warrantor in reconvention or otherwise against the defendant b& reserved. -  