
    (84 South. 60)
    No. 22400.
    SAUNDERS v. BOLDEN et al.
    (March 1, 1920.)
    
      (Syllabus by Editorial Staff.)
    
    Judgment <S^747(y2) — Judgment in jactitation suit not a bar to petitory action.
    Judgment in a jactitation suit which merely ordered defendant to establish his claims or pretensions to the'land by a petitory action is not a bar to defendant’s right of recovery in a petitory action when brought by him, since he should not be adjudged in default for having failed to establish his claims or pretensions until he has had opportunity to establish them.
    Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge.
    Suit by Dennie W. Saunders against Abe Bolden and others. Prom judgment of dismissal, plaintiff appeals.
    Judgment annulled, and case ordered remanded for further proceedings.
    Scarborough & Carver, of Natchitoches, for appellant. I
    Elmo P. Lee, of Mansfield, for appellees.
   O’NIELL, J.

Plaintiff appeals from a judgment dismissing his suit on a plea of res judicata. The suit is a petitory action, for title to a tract of SO acres of land in defendant’s possession. The judgment on which the plea of res judicata is founded was rendered in a jactitation suit, entitled Bell v. Saunders, reported in 139 La. 1037, 72 South. 727. Bell derived title from Bolden, who reserved the usufruct and remained in posses-, sion of the land as usufructuary. Bell therefore founded his right of action for slander of title upon the allegation that Bolden held possession for him. Saunders, as defendant in the action of slander of title, pleaded that Bolden was his tenant, holding possession for him, and that Bell, therefore, had no right of action for slander of title. In support of the plea, Saunders introduced in evidence an instrument purporting to be a deed from Bol-den to him and a lease from him to Bol-den. The instrument bore an earlier date than the deeds by which Bell claimed title from Bolden,' but was recorded subsequent to the registry of Bell’s deeds. Because of the previous registry of the deeds under which Bell claimed title, the district court decided that Bolden held possession as usu-fructuary for Bell, not as tenant for Saunders, and maintained Bell’s right of action for slander of title. On appeal, this court held that the instrument under which Saunders contended that Bolden held possession as his tenant, and the testimony in support thereof, should not have been admitted in evidence against Bell, and the court therefore eliminated the evidence so offered. The decree merely affirmed the judgment appealed from, which was as follows, viz.:

“L. H. Bell, Sr., v. Dennie W. Saunders.
No. 7660.
“District Court, De Soto Parish, Louisiana.
“In this case, by reason of the law and the evidence being in favor of the plaintiff and against the defendant, it is therefore ordered, adjudged and decreed that the plaintiff is in the possession as owner of the following described land lying and situated in the parish of De Soto, state of Louisiana, to wit, * * * and that defendant, Dennie W. Saunders, has slandered the title'of plaintiff.
“And it is ordered, adjudged and decreed that the defendant be ordered to establish by petitory action his claims or pretensions, if any he has, to said property, and that his failure to do so shall stand as a perpetual default in that regard against said defendant.
“It is further ordered that defendant pay the costs of this suit.
“Thus done, read,” etc.

Appellee relies mainly upon the decree in the jactitation suit that, if the defendant, Saunders, should fail to establish by petitory action his claims or pretensions to the property, his failure to do so should stand as a perpetual default against hiin in that regard. But it must be borne in mind that what was to stand as a perpetual default was, not a failure of Saunders to • institute a petitory action within any specified time, but a failure on his part to establish his claims or pretensions in a petitory action. He should not be adjudged in default for having failed to establish his claims or pretensions until he has had an opportunity to establish them. Although the reasons for which Bell’s right of action for slander of title was maintained may eventually prove sufficient — or might even now be deemed sufficient — to maintain Bolden’s defense of this petitory action upon its merits, it is illogical to say that the judgment that merely ordered Saunders to establish his claims or pretensions by a petitory action should stand as a bar to his right of recovery in the petitory action.

The judgment appealed from is annulled; and it is ordered that the case be remanded to the district court for further proceedings not inconsistent with this opinion. The defendant, appellee, is to pay'the costs incident to the plea of res judicata, including the costs of this appeal; all other costs are to depend upon the final judgment.  