
    
      DAVIS' HEIRS vs. PREVOST.
    
    Appeal from the court of the fifth district.
    A defendant may pray for amended »o-swer; but it is ⅛”" ⅛⅛” filed.
    wliEn '>>» real object is by «hcíuw’beln. dulged, if de-l9r is not thereby crea*
    court ⅛ 0⅛&⅞⅛6 of theevi-deirce’ a“? cannot dis-from%t»owLf fransferrmgit to the jury.'
   Martin, J.

delivered the opinion of the court 1 • This case came to this court several years ago the pleadings are stated in 12 Martin; and ter several arguments, on a suggestion that fur-oa ther evidence was hi the power of the parties, the case was remanded, with their consent, for . another trial. There has been a verdict and judgment for the defendants, and the plaintiffs have appealed. Yol. 1, 697.

The counsel for the appellants has called our 1 1 attention to several bills of exceptions.

1.—When the cause was called for trial in the district court, the counsel for the defendants presented to the court a petition, in which they prayed for a jury; the application was refused on the ground that it was too late, and the jury ought to have been prayed for in the answer. The court, however, directed the cause to be tried by a jury; and the plaintiff took a bill of exceptions.

A defendant may, in proper time, pray for a jury, on an amended answer, but it is always in the discretion of the court to gra»t leave to file it will be denied if the trial be thereby un* necessarily delayed. In the present case, the judge has certified that a jury was in attend» anee when the petition was presented. When a party’s real object is to have his cause tried by jury, he ought to be indulged, when his application causes no delay. Indeed, the court may itself direct one, ex officio. It does not appear to us that the court erred.

2.—The plaintiffs objected to the introduction of the testimony of Louis Yellieon and others, for any other purpose than to prove possession in the defendants, because, as they had admitted they had a written title, they could not be allowed to prove a verbal one •, neither could they be allowed to prove an assessment for a paymentof taxes by parol. The objections were overruled, and the plaintiffs took a bill of exceptions.

The judge states that he considered the parol testimony good to prove, 1st. the existence and loss of a title; 2d. possession; 3d. any circumstance from which a title may be presumed, such as acts of ownership, payment of taxes, general reputation of title, &c. 4th, prescription.

We think the court erretj. The evidence was admitted absolutely; now the court is to u judge of the admissibility of testimony, and cannot discharge itself from this obligation by transferring it to the jury; and must be satisfied that the best evidence cannot be had, before it admits inferior.

3.—The plaintiff claims immediately under deeds from the heirs of Delahoussaye, to whom the premises were transferred by the heirs of the original grantees, whose deed recites that they convey in consequence of an exchange heretofore made by their ancestors, with Dela-houssay. The defendants offered in evidence, an affidavit of Delahoussay, filed before the land commissioners of the U. S., in which he declares that the premises belong to the ancestors of the defendants’ warrantees. The introduction of the affidavit was opposed by the plaintiffs’ counsel; the objection overruled, and a-bill of exceptions taken.

The heirs of Delahoussaye derived their title immediately from the heirs of the grantees; and the deed by which they acquired it is alleged to be fraudulent and void, inasmuch as the fact alleged as the inducement to the transfer does not exist; that the recital is false. Strangers to a deed may attack it when they shew covin and collusion for the purpose of de-1 r frauding them, between the parties. If the defendants claim under the original grantees, or their heirs, by a conveyance anterior to that under which the plaintiffs claim, the deed they attack is not in their way, and the destruction of it will not better their title. If the heirs of the original grantees have been deceived, and their conveyance obtained by fraud, they may be relieved, but while they are silent, a stranger to the deed can only attack it on the allegation of collusion.

We are of opinion the court erred.

4.—The affidavit of Delahoussaye being rejected, it is useless to enquire whether the court did err in refusing parol evidence to bo introduced fo disprove the facts alleged in a deed of exchange between the ancestors of the original grantees and Delahoussaye.

5.—As the opinion we have expressed on the introduction of evidence makes it our duty to disregard the verdict, it is useless to examine the bill of exceptions taken to the charge to the jury.

The district court having admitted illegal evidence, it follows that the judgment must be reversed, and tjhe verdict set aside. In such circumstances, our uniform practice is, to re-1 mand the,case to be acted on by a new jury; but the parties have pressed us to proceed to the examination of the evidence; and, disregarding the testimony illegally received, determine the case on its merits, and act upon it as if no jury had been prayed.

It would have been more agreeable to us to have remanded the case, and we had believed that the variety of facts to be examined, some contrariety in the testimony, rendered this case more proper for the decision of the facts on which it rests, by a jury than by us; but the case has, for a great number of years been before us, and both parties are anxiously desirous of immediate decision.

We have, therefore, carefully examined the evidence, and it does appear to us that what has been added to it since the case was remanded, does not materially alter it. Indeed, the evidence varies very little from that in the case of Prevost’s heirs vs. Johnson, 9 Martin, 123.

Wé conclude then, the plaintiffs have fully established their title to the premises, and that the defendants have failed to prove any in themselves, or to establish such possession in themselves, and those under whom they claim, as will avail them under the plea of prescription.

Brownson for the plaintiffs, Baker for the defendants?

It is, therefore,. ordered, adjudged, and de- ’ J & creed, that the judgment of the district court be annulled, avoided, and reversed; that judgment be entered for the plaintiffs against the defendants; and for the latter against the party called in warranty ; and the case be remanded to the district court, for the assessment of damages for the present defendant, and that the plaintiffs recover their costs in both courts.  