
    Benton v. Roberts.
    The right of a joint owner .to maintain a possessory action depends on the nature of his pos* session. While lie continues to possess nomine commuyd the right does not exist; but where he has possessed nomine propr io, and in good faith, for mo.re than a year, he is to all legal intents a just possessor, and in case .of .a disturbance by the other joint owner, the possessory action will lie. Nor will the facteof commencing a suit for a partition after the institution of the possessory action, in any manner affect the right to recover in the latter, where each party had possessed, for more than a year, a portion.of the land in his own right.
    
      Appeal from the District Court of Carroll, Curry, L
    
      Stacy and Sparrow, for the plaintiff.
    
      BemisswaA H. A. Bullard, for the appellant.
    1. The parties were joint tenants. That there had .been no partition, is proved by the institution of a suit to effect.a partition, after this action was commenced. From the very nature of ihe title of joint tenants, o.ne joint tenant cannot maintain a possessory action •against his co-tenant. 2. The cumulation of an action for a partition with the possessory action — in fact,'the mere institution of an action for a partition after .the possessory action- — mustjdismiss the latter ; the action for a partition being in its nature petitory, and .consequently incompatible with a suit for a partition. ¡C. P. 57, 150.
   The judgment of the .court was pronounced by

Rost, J.

This is a .possessory action. The plaintiff and defendant were, ,-nt the time.it was instituted, joint owners.of .the land, the possession of which .is in controversy. The.case was tried before a jury, who ¿ave a verdict in favor <of the plaintiff, with $1000 damages. The defendant has appealed from the judgment rendered on the verdict.

The main ground relied.on by the defendant’s counsel is .that, from the very .nature of the .title of joint owners, one .cannot maintain .a possessory action ¡against another. The right of a party thus situated to maintain a possessory action, depends upon the .nature of his possession. As long as he continues to ¡possess.nomine communi,.the right does not exist. But when.he has possessed ¡nomine propria, and in good faith, during more than one year, .he is to all legal intents a just possessor, .and in .case of a disturbance by the other joint owners, .the possessory action will lie.. Troplong, Presc. nos. 361, 528, This possession animo domimi of .the joint owner, is .expressly recognised by the Louisiana Code, and made.the .basis of the prescription of thirty years against the ¡title of his partners. Arts. 1228, 1229, 1292.

The plaintiff and the defendant purchased, in .1839, .four .contiguous lots of land, forming at the time two distinct and separate plantations, and each took .possession of one of those plantations. During the first year1 .the plaintiffrented .the place taken .possession of by him to a person who .has .testified in the cause. In 1840, he rented it to another person, whose testimony is also in the record. Those persons contracted with him as the exclusive .possessor of the land, and .paid him the rent. The last named delivered up the .land to him in 1841, and .the plaintiff planted a crop upon it; but before the crop was made, the defendant, who.had.been living -nil the time on.the adjoining place and cultivated it as ¡his o.w.n, look possession, by force, of the premises occupied by the plaintiff, prevented him from gathering the crop, and caused him other damage. The plaintilf’s right to maintain his action is .clearly made out. The fact that he subsequently instituted a suit for- a partition, -can in-no manner affect it. Each .of the parties had possessed, during more than one year, a portion of the land in his own right, and an action of partition .was the only proceeding to which .they could resort to put an -end to that state of -things.

The v.erdic.t of the jury in relation to the damages is fully sustained by the ■.evidence, and the judgment has done justice between the parties.

Judgment affirmed. 
      
       Eustis, C. J. was present when this opinion was pronounced on the 12th of April, but was absent when it became final by the refusal of an application for a re-bearing.
     