
    No. 8760.
    Leon Lavedan vs. F. F. Trinchard.
    The settled praotioe is to consider the surety to the injunction bond a party to the appeal without mention of.liira in the motion for appeal if his principal be appellant, and without citing him if the appeal is by petition, his principal being appellee.
    Where the government, in the Act of Congress confirming a title to land, makes special reservation of the rights of all parties then claiming an interest therein, such parties are remitted to the State courts for the litigation of (heir claims.
    The holder of a patent with such reservation will be considered as plaintiff in a petitory action against adverse claimants, whatever be the form in which he makes the attack, and must therefore recover on the strength of his own title.
    A proceeding by seizure and sale of land in the possession of third parties for more than thirty years, cannot have the effect of lowing them to assume the attitude of plaintiffs in a petitory action. Their position is that of defendants in such a suit. "Cintila better title be shown and reooguized contradictorily with them, they oan securely rely on their possession.
    APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Halm, J.
    
      F. T. Florence and H. G. Millet' for Plaintiff and Defendant, Appellees.
    
      Jas. _D. Augustin for Opponents and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The real object of this suit is to interpose judicial proceedings to bolster up a claim upon a small tract of land about twenty-four miles above this city. It is thinly disguised under the device of foreclosing a mortgage between parties, who have gone through certain notarial forms as a basis for their pretensions.

The tract has one hundred and twenty 26-100 acres, and is and has been long in the possession of the Gassens, third opponents. Emile St. Amand obtained a patent for it from the United States June 1, 1878, and executed a notarial sale of it to F. F. Trinchard a month afterwards for $3,000, of which one-third was said to have been cash, and two notes were executed for the residue. When the second note matured, the plaintiff Lavedan produced them, claimed to he owner of them, and obtained an order of seizure and sale of the land.

None of these parties had ever been in possession of the land. Jean Baptiste Gassen and two others found the property, of which they and their authors had been in possession more than thirty years, advertised for sale under process issuing in a suit of which they knew nothing. They injoined the sale.

The land is a part of the section bought by Baptiste St. Amand from the United States in November, 1830, from whom the opponents derive title through mesne conveyances. They and their authors occupied it, their boundary lines including the lots or parts seized by the plaintiff. These lots are a part also of the Paul Toup claim, which came before this Court in Lanfear vs. Harper, 15 Ann. 548, and was declared by. the U. S. Supreme Court to have been only conditionally confirmed to Toup’s children, special reservation being made in the Act of Congress of August 18, 1856, of the right of any person, then settled upon the land, to maintain air action therefor. The proviso in the Act is that the confirmation lt shall only be construed as a relinquishment of title on the part of the United States, and shall not affect the lights of any third persons claiming title either under adverse title or as preern ptors.” Lanfear vs. Humley, 4 Wall. 204.

There can therefore be no question of prescription against the government in the case. The government as long ago as 1856 abandoned all claim to the-land, and would not unconditionally confirm Toup’s claim, the origin of which was in 1796, but left the question of location or boundary to be adjusted by the State courts. The confirmation was founded upon a survey of one Haucke, and the State court decided Xiaueke’s location of the claim to be wrongful.

The plaintiff endeavors to put the opponents in the attitude of plaintiffs in a petitory action, but their position is that of defendants quoad the demand for the land, and they may rely securely oh their continuous and undisputed possession until a better title be shewn. That lias not. been done by the plaintiff or defendant, who appear to be of one mind in this suit. The United States relinquished all title to the land twenty-two years before Emile St. Amand obtained his patent, j and he therefore acquired nothing, sold nothing to the defendant, and I could transfer no rights of mortgage to the plaintiff.

There is a motion to dismiss, on the ground that the surety to the injunction bond has not appealed, which is refused. It is identical with the like motion iu Tilton vs. Vignes, 33 Ann. 240. The settled practice is to consider the surety in injunction as a party without citing liim, or mention of him in motion of appeal. Matta vs. Gayle, 10 Ann. 347.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment iu favor of J. B. Gassen and the other opponents, maintaining and perpetuating their injunction, and that they also have and recover of the plaintiff the costs of their opposition and injunction iu the lower court, and the costs of this appeal.

On Application por a Rehearing.

Bermudez, C. J.

The cause of alarm on which this application seems to rest is, that in the judgment rendered we have passed on the titles involved.

We have done no such thing. We have merely held, that tile position of the opponents is that of defendants in a petitory action, and that they can securely rely on their possession until a better title be shown. We passed simply on a question of form.

This leaves the door open for those concerned to institute proper proceedings to revendiente the property and thus have their title declared superior, if such, to that which opponents may assert to it.

Application refused.  