
    William Smith v. Henry Gibbon.
    Where prescription had run. against the mother of certain minor heirs, before her death, for more than ten years, and for more than three years against the heirs after their majority, the claim will be bai-red by ten years’ prescription.
    A suit which was voluntarily abandoned, does not interrupt prescription. C. C. 3485.
    from the District Court of St. Mary, Overton, J.
    
      W. C. Dwight, for plaintiff.
    
      Henry Gibbon, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff brings suit for a tract of land situated and having thirty or thirty-five arpents on the east side of the river Teche, at its mouth, where it enters into Berwick’s bay, with the depth that belongs to it by the titles. There is no dispute between the parties as to the land claimed. The plaintiff’s title calls for but four hundred and fifty superficial acres, therefore, the claim in his brief, for a greater quantity, is inadmissible. Both hold under an order of survey in favor of Eleanor Berwick, made by the Baron Carrondelet, on the 3d of July, 1797, and confirmed by the board of commissioners for the adjustment of land titles, for the western district of the territory of Orleans.

He exhibits, in evidence, an authentic act of sale from her to John Shaw, dated the 21st of July, 1820, made before the parish judge of the parish of St. Mary, and recorded that year, though the date of the record is not shown. John Shaw and his children, his wife being dead, so Id the land to the plaintiff, by an authentic act daledhhe 18th of November, 1844. They warranted the vendee only against themselves and heirs, and he paid but a thousand dollars for the land, showing that he was aware of the adverse claim and possession, and that he would be compelled to sue for the land. Four months afterwards, he commenced suit for the land, but, at the trial, took a voluntary non-suit, and commenced this suit on the 25th of June, 1846.

The defendant traces his title to Henry Johnson, who is called in warranty. Johnson purchased the land from Christopher Adams, by an authentic act of sale passed before the parish judge of the parish of St. Landry, on the 12th, and duly recorded in the parish of St Mary, where the land was situated, on the 22d of May, 1812.

The defendants also gave, in evidence, an act of sale of the land, under private signature, from William Newman and his wife, Eleanor Newman, the grantee, dated the 5th of March, 1807, to Leonard Claiborne. It was acknowledged by William Newman, before the parish judge of the county of Altakapas, on the 14th of April, 1807, but was not recorded in the parish of St. Mary, until the year 1821. It does not appear- that it was recorded in the office of a notary public, as required by the Old Civil Code, 306, art. 228, to give it effect against bond fide purchasers, previously to the act of 1813. Supposing John Shawp bond fide purchaser-, and nothing appears to the contrary, the title of the plaintiff might perhaps prevail, unless barred by prescription.

It is important, therefore, for us to know, whether the mark of Eleanor Newman to this act, is genuine or not. For, if it is her genuine act, we should require proof, of more decided acts of apposition on her part, to the possession of the defendants, to interrupt their prescription; and if counterfeited, we would not be satisfied with doubtful proof of possession by the defendants.

Besides, if it be a genuine instrument, the inquiry might arise, if it became necessary, whether the children and their vendee were not obliged by the warranties of their grandmother, there being no evidence, that their mother renounced her succession.

We are of opinion, that the cross of Mrs Newman to the deed of herself and husband, to Leonard Claiborne, dated the 5th of March, 1807, is her genuine signature. The signatures of the two witnesses to the deed, are proved to be genuine. One of them is dead; the other went to Texas ; his residence is unknown, and death, probable. They are both proved to have been men of good character. One of them who wrote .the deed, F. L. Turner, was after-wards a distinguished judge of this State, and maintained a high character for integrity, until his death.

The teste to the instrument’s in these Words: “In witness whereof, they (that is, Mr. and Mrs. Newman, the vendors,) have hereunto set their hands and seals, the day and year above written.

Teste his William X Newman, [i. s.]

F. L. Turner, - mark.

Luke Bryan, . ' her

Eleanor X Newman, [l. s.] mark.

They thus witness, not that he, William Neioman, but that they, Mr. and Mrs. Neioman, haye set their hands and seals to the instrument. They attested that which was false, or the instrument is genuine. Witnesses always sign after the parties to the act, or mention the particular signature they witness. It is impossible to believe, that Turner left this instrument, which he had drawn and attested, go out into the hands of Claiborne, if, it was false, to become immediately the subject of litigation and investigation at a time when it could be successfully impeached by Christopher Bryan and others, and with it, his integrity as a man.

The testimony of Christopher, that Mrs. Newman refused to sign the instrument, would have little weight against the defendant’s testimony, which is equivalent to that of two witnesses that they saw her sign it. But he further states, that he saw the instrument with the signature of her husband and the two witnesses, and without her signature. This is not absolutely inconsistent with the genuineness of the instrument, as she might still have signed before it was delivered to Claiborne. It is so improbable, however, that we are bound to believe, that after the lapse of forty years, this witness may be mistaken. It is more reasonable than to believe, that her other brother-in-law and another honest citizen, would have conspired with her husband and Claiborne, to defraud her of a tract of land in her immediate neighborhood, and that of her father, brother, relations and friends, when the fraud would, probably, be discovered immediately, and the counterfeiter might be brought to justice. Newman, at least, did not fear such a result, for he immediately exhibited the instrument, and acknowledged it before the judge of Ms county, and Claiborne, soon after, made the land the subject of a partnership with C. Adams.

It is to be obsrved too, that the name of the husband and wife are written with the same ink. When Christopher Bryan saw the instrument, the names of the husband and witnesses were to it, but not the wife’s name. If not, it was signed afterwards, not by the husband, for he mado Ms mark, but by a fourth counterfeiter and conspirator, to defraud the wife. This is too improbable, and the defendant’s counsel has made many other suggestions, which, with the inspection of the original instrument, by consent of both parties, satisfies us, that it is genuine.

• We will now examine the pleas of prescription. Henry Johnson had purchased the fourth of the original concession from Joseph Berwick, the brother of Mrs. Newman, to whom it had been jointly conceded by Baron Carronclelet, on the 3d of October, 1811; and another fourth of the same concession, from Mr. Merryman, to whom Joseph Berwick had sold it. The grant had never been formally divided, and wishing to purchase the whole, Johnson would naturally inquire, who was the co-proprietor. Adams exhibited the title, which we have found to be genuine; and we have not the slightest proof from the brother Stephen Merryman, Bryan, or any relation of Mrs. Newman, that Johnson learned from any source, that it was suspected or that she made any claim to the land. On the 12th of May, 1812, he purchased the land in controversy, from Adams, by an authentic act, and had it duly recorded. He shortly after-wards had the land surveyed by Johnson, a surveyor of the United States, his agent pointing out the boundary of the land. It was known in the neighborhood, as the land of Johnson. Extracts of four assessment rolls, in 1818, 1823, 1837 and 1838, are exhibited, in which it is assessed as his land. It is rendered probable by the testimony of .Curtis and Murphy, that it was assessed in his name, for other years. He offered to sell the land in 1819 and 1821, visiting it with the intended buyer. Others proposed to buy parts of it of him. He appointed an agent near the premises, to protect, on his behalf, the cypress timber. He engaged an Indian named Portion, to plant date trees for him on the land. In the fall of 1819, he put Francois Duval on the land, to take care of it, who built a house and made small crops on it. Johnson promised to pay Mm for his improvements. Ho continued on it until the summer of 1828, when he left. But Durand and Truffer remained by the permission of Johnson. Being a nonresident, Johnson came to visit the'land, as his own, every year or two, and it was notoriously known in the neighborhood as his land. The possession of his vendee and his successors, from 1839 until the institution of this suit, in 1846, does not appear to be disputed.

Since the genuine sale to Claiborne, in 1807, neither Mrs. Newman, her heirs, or vendees, appear by the evidence, ever to have possessed an acre of the land for a day. Her husband died on another place, in 1810 or 1811. She then moved nearer to, but not on the land; she then moved down the bay, and further off; she then moved up near Franklin; then,'two miles further up on the Teche; then, to the Indian bend, and then, to the Vermillion bayou; but never to the home given to her by the Baron Carrondelet, in her infancy. She sold it indeed, a second time, to her son-in-law, John Shaw, in 1820, by a paper title; but he too went to the Vermillion, and never to the island in dispute. As far as appears by the record, neither of them ever sent an agent to the land, or took any steps with regard to it, until the plaintiff purchased from Shaw and his wife’s heirs, not a title, but their claim to the land.

This evidence satisfies us, that the civil possession of the land in dispute, was delivered by Adams to Johnson, in 1812, as expressed in the title, and that he held it as owner. Code, 2455. That he held it by the boundaries described in the title, and by the lines run by the surveyor in presence of his agent, in 1814. Code. 3464. That about that time, he took actual possession ; that in 1819, at least, he had a corporeal possession,' which continued ten years, and that, afterwards, his civil possession, at least, was continuous, uninterrupted, peaceable, public and unequivocal, until 1839 ;-from which time, until the commencement of this suit, the corporeal possession has been notorious, and is undisputed.

Thus, Johnson and his vendees have held possession, about thirty years advei-sely to John Shaw and his vendor, under a duly recorded title. The claim of John Shaw is therefore clearly barred by prescription. The mother of his children died in 1827, and plaintiff claimed\inder them, as her heirs, of one-half the property. Many legal objections might be stated to their claim. One that is manifest, is sufficient. At least seven years had elapsed, from the corporeal possession, taken by F. Duval of the property for Johnson, in the fall of 1819, before the mother’s death. The youngest child became of age in April, 1842. More than three years elapsed from that date, before the institution of this suit in June, 1846, which, added to the seven, makes more than ten years’corporeal possession against majors residing in the State.. The minority of the children did not, as contended by the defendant, interrupt, but only suspended the course of prescription. Code, title Prescription, chap. 3, sec. 6.

It is to be observed, that the first suit does not interrupt the prescription, because it was voluntarily abandoned. Code, art. 3485.

The judgment of the district court is affirmed, with costs.  