
    No. 1370.
    Omezia Simon et al. vs. Thelismar Richard et als.
    1. The property which is the subject of controversy is worth more than $2000. The allegations of plaintiff, respecting the value of the property and the improvements claimed for rent, are not considered, except in so far as they may serve to corroborate the correctness of an estimate, predicated upon the value of the property, the title to which is involved in the suit.
    2. The possession under which the prescription of thirty years is founded must be public and unequivocal, and the evidence should establish that the possessor claimed the property as his and exercised some rights as an owner.
    ,-i. It being shown that the property claimed was once jointly owned by the heirs, who inherited jointly from their ancestors and their brotheis and sisters, the condition of indivisión and joint ownership will continue, unless it be satisfactorily proven that the parties have parted with their title.
    4. The illegitimacy and the incapacity to inherit must be proven by competent ’ and satisfactory testimony. The acknowledgment of the mother, although not entirely in form, will receive the court’s sanction, unless the incapacity be proven.
    5. The author of the plaintiff’s title and the author of defendant’s title each owncd-one-lialf. In the absence of evidence showing a divestiture of title of some kind, they shall own in that proportion until a partition shall have been legally made or the joint ownership has been made to end. Joint owners can not acquire title to property by prescription as against each other.
    APPEAL from the Twenty-fifth District Court for the Parish of Lafayette. De Baillon, J.
    
    
      L. L. Bourges for’ Plaintiffs and Appellees.
    
      O. H. MoiUon and Julian Mouton for Defendants and Appellants:
   On Motion to Dismiss the Appeal for Want of Jurisdiction Ratione Materle.

The opinion of the court was delivered by

Breaux, J.

In tracing up the chain of title to the property claimed in this suit we had in view the motion made to dismiss the appeal. The value of the land is more than $2000.

The appellants once owned the whole tract, and are interested in maintaining their title to the whole.

Mrs. Zenon Broussard, one of the defendants, purchased two hundred arpents of the land in 1882 at auction sale. Roman Frances at the same time purchased the remainder. The latter has sold the land he purchased. The former still owns a part. They are sued to set aside the sale of 1882 to them; also are sued those who subsequently purchased from them, and plaintiff and appellee seek to have all the sales (those made to Broussard and Frances, and those made by them subsequently) annulled.

Title to the whole property is involved in this suit, and Broussard and Frances, who have appealed, are interested in maintaining their title to the whole tract, although the other defendants (their vendees) have not chosen to appeal. Plaintiff’s allegations that the tract is worth $6400, and the claim for rental in the sum of $1800, not having been proven, are not considered, except in so far as they corroborate other evidence of the value of the land.

The motion is therefore dismissed.

On the Merits.

The plaintiffs allege that they are the owners of a tract of land in the parish of Lafayette. It is described as section 62, township 8 south, range 5 east, and contains three hundred and twenty arpents. More than seventy years ago William Luix, alias Guillaume, and his wife, Franeoise Masé, were in possession of this land.

The former acquired it from the government of the United States.

They left five heirs, born of their marriage, viz: Etienne, Pierre, Oelestin, Simon and Felicite Luix.

Etienne, Pierre and Oelestin died without issue.

Franeoise Scandron, wife of Noel Moral, inherited from Felicite Luix.

Franeoise Scandron was the illegitimate daughter of the latter, but was acknowledged, as shown by a certificate of baptism in evidence.

She had other illegitimate children. The record does not disclose that they were ever acknowledged by her.

No further mention will be made of them, as they have never been acknowledged. After the death of Felicite, her daughter, Francoise Scandron, wife of Noel Moral, was in possession.

After the death of the latter, her daughter Aspasie, wife of Philogene Simon, mother of the plaintiffs, went into possession of this land and retained possession to the day of her death. The record discloses that her possession began more than thirty years ago.

Not many years'after the death of Aspasie, her children, the plaintiffs, brought this suit against the defendants.

Judgments were pronounced in favor of the plaintiffs, from which the defendants appeal.

The plaintiffs claim by inheritance.

The defendants by inheritance, also by purchase.

In August, 1882, one of the defendants, Romain Frances, bought the upper portion of the land; at the same time Mrs. Zenon J. Broussard, another defendant, bought the remainder from Simon Luix’s succession.

It is not known that Simon Luix, brother of Felicite Luix, and son' of William Luix and Francoise Mase, ever claimed the entire tract of land in controversy.

In 1882, it was sold at public auction as his property.

It was at this sale that Frances and Mrs. Broussard became the adjudícateos, and from that time the contest arose in regard to the title.

The former afterward sold a part of the tract bought by him to Philosie Richard and the remainder to Thelismer Richard.

This was in August, 1882.

Mrs. Broussard sold to Ovide Saunier a part of the land and to C. Broussard and others, and, still owns a part. The number of claimants, owing to the sales made by Broussard and Frances, became numerous, and they succeeded in obtaining possession after 1882.

It can not be questioned that the land was inherited in equal portion by Simon Luix and Felicite Luix, the son and daughter of William Luix and Francoise Mase.

Etienne, Celestin and Pierre Luix, other sons of these last named, having died childless, Simon and Felicite inherited in equal portion from them.

This condition of inheritance can be changed only by legal evidence. None such is disclosed in the record.

On the part of defendants a number of deeds have been introduced in evidence. None showing legal divestiture of title.

Some of them do not describe lands which can be identified.

In one of the deeds, relied upon by the defendants, two separate tracts are described and the boundaries are not those of the land claimed.

Similar difficulties present themselves with reference to a copy of a deed executed before Judge Brashear in August, 1834.

Two deeds under sous seing privé have been introduced in evidence.- They were not authenticated, nor the least evidence offered to support them. The vendor and vendees who were parties to these last mentioned sales, to prove their genuineness, made their mark, as they could not sign. One witness signed one of these deeds; the other, only the vendor and vendee, no witnesses signed.

Defendants contend that the author of their title, Simon Luix, was the heir of Felicite Luix. That it should be so decreed, and their title quieted. That as Francoise Scandron, the daughter of Felicite Luix, was illegitimate, Simon, her brother, should inherit from the succession of his sister to the exclusion of her daughter.

Francoise Scandron’s right to inherit was never questioned before the pendency of this suit. She was in possession many years as an heir.

At this date we will not change the order of inheritance.

While examining this case we have been reminded of the uncertainty of oral testimony when witnesses testify as to occurrences of mañy years ago.

We will not on that testimony, in this instance, decree that the brother is legitimate and should, inherit from his sister to the exclusion of his acknowledged niece, her daughter, although the acknowledgment may not be entirely formal.

The defendants contend that Simon Luix inherited the land from his sister, Felicite Luix, who died without legitimate issue.

This is an admission that she was once the owner, at least, of one-half as an heir.

That she once owned half as an hier can not be reasonably denied.

With reference to possession, we will state that the possession of the authors of plaintiffs’ title is not proven to have been public and uninterrupted as owners.

We will not therefore hold that Felicite Luix and those who sueceeded her as owners acquired title to the whole tract by prescription of thirty years, but we feel confident, in the conclusion, that she owned half by inheritance, which is now owned by plaintiffs.

We do not give the importance to the possession of Felicite Luix and those who have possessed since, that the learned judge of the court a qua has given. It is not sufficient of itself to maintain title. The land was undoubtedly at one time the property of Simon Luix and Felicite Luix.

In the absence of sufficient evidence to show transfer, we maintain the joint ownership. Joint owners can not acquire title against each other by prescription.

It is ordered, adjudged and decreed that the judgment appealed from be amended by recognizing plaintiffs’ title as the owners of the undivided half of the property, viz: Section 62, township 8 south, range 5 east, Louisiana meridian; and defendants are condemned to deliver up possession of the half of said land to plaintiffs, or as much thereof as they may have possession or are warrantors of. The sales made by these defendants of this land are declared null and void to the .extent of one undivided half, and defendants’ prayer to annul the act of sale of 1882 made to Broussard and Frances, in so far as relates to one-half, is denied.

As amended, judgment appealed from is affirmed at appellee’s costs.

On Application por a Rehearing.

Watkins, J.

The complaint of our opinion is that as the only appellants from the judgment below are Romain Frances and Mrs. Zenon Broussard; and that as other defendants, who are them vendees and transferees, have acquiesced therein, by not appealing, the judgment constitutes res judicata as to the title, and puts an end to the case. Hence, our opinion improperly dealt with the title, and should have liberated appellants from their obligation in warranty to their transferees, as defendants, and appellees.

It appears that, at public auction, Romain Frances purchased a part of the land in dispute; and that Mrs. Zenon Broussard purchased the remainder. The former sold to Philosie Richard and Thelismar Richard; the latter sold to Ovide Sonnier and Charles Broussard. Thereafter the number of claimants became quite numerous, and they succeeded in obtaining possession.

These various parties were cited, and contradictorily judgment was rendered, recognizing plaintiffs, as the heirs of their grandmother, Franeoise Scadron, the owners of the whole land.

It is a fact which is found in our opinion, and not denied in the motion under consideration, that the defendants assert title to one-half interest in the land by inheritance from Simon de Clouet and the whole by mesne conveyances from Romain Frances and Mrs. Zenon Broussard.

Our opinion maintains that part of the judgment appealed from which annuls the latter, on the ground that the deeds of conveyance ■are insufficient to pass the title; but it reverses the part which rejects the former, on the grounds that the defendants’ title by inheritance has never been divested, and that, as between co-heirs, title can not be acquired by prescription. It is, therefore, manifest that appellees’ contention is erroneous and their application must be refused.  