
    
      ORILLON vs. NERAULT.
    
    ARPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING.
    A vendor of the right of mortgage who warrants only the existence of his claim, cannot he objected to as a witness on the score of interest to prove possession in his vendee.
    The plaintiff stated, that he was the legal owner and possessor of a tract of land, upon which the defendant had illegally entered and committed various- trespasses. The petition concluded with a prayer for damages, and a decree quieting the plaintiff in his title to and possession of the land. The defendant pleaded the general issue, and further, that Mayer then was, and had been for more than one year previous to the disturbance complained of, in quiet and peaceable possession of the land, and that the defendant was thereon by the consent and permission of Mayer.
    Eastern District,
    March 1831.
    The land in controversy had been adjudicated to Blake, who failing, the purchase money was paid by his surety, Dupuy. The latter, in consideration of its reimbursement by the defendant, transferred to him his claim for restitution against the syndics of Blake, as well a~ the hypothecary right which became vested in him by the payment, warranting nothing more than the existenpe of the right !at the time of the transfer. The defendant accepted this transfer with the special warranty of the right, and renounced all right of recovery against Dupuy, on any other account. On the trial of the cause, the defendant 9ffered Dupuy as a witness to prove ~possession, who was objected to by the plaintiff on the score of interest. The court overruled the objectioi~, and the plaintiff took a bill of exceptions. There was judgment of non-suit, and the plaintiff appealed.
    Burke and Davis, for appellant.
    Nichols, for appellee.
   Martin, J.,

delivered the opinion of the court.

The plaintiff states himself to have been the owner and possessor of a tra& of land, when the defendant entered upon it, cut down trees, and drove off the plaintiff's hands, who were at work in repairing the levee. He prays for damages, and an injunction, provisional and perpetual, to the defendant, exhibiting further disturbances.

The defendant pleaded the general issue, and denied that the plaintiff ever was in possession of the premises; and. averred, that Mayer is, and wa.~ for one year before the inception of the suit and before the disturbance complained 0f and the defendant was thereon, with the consent and ’ permission of Mayer.

A vendor of the right of morgage, ly the existence not'be'objected to as a witness on Ine score of interest, to prove possession in his ven-dee. ■

There was judgment of non-suit, and the plaintiff appealed.

' Our attention is first drawn to a bill of exceptions taken ^ plaintiff to the admission of Aubry as a witness, on the score of interest. He declared on his voiredire, that he had transferred to Nerault a right of mortgage, which he °Iaimed on the premises as subrogated to the rights of Mayer’s heirs. The witness had warranted the existence of his right, and nothing else ; and the transferree renounced . ... ,, aW right ot recovering any thing on any other account.

We think the judge did not err. The witness was brought in to prove possession only. He was only bound to warrant the existence of his claim.

On the merits, we think the judge was equally correct.

It is, therefore,' ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.  