
    PREVOST'S HEIRS vs. JOHNSON & AL.
    West'n District.
    September, 1820.
    When an user per enters on land he acquires possession inch by inch, of the part which he occupies.
    The possession ofone who shews no title, when the extent of it is not shewn to have reached within a mine of the locus on quo cannot he considered a pos- session of it.
    Feeding cattle and hogs,cutting wood, building pens, are not necessarily acts of possession of the land-as clearing land, cultivating it, building houses &c. The purchase of the
    The purchase of thevendor's right only, and a stipulation, that the price shall not be payable till the title be confirmed, are not necessarily presumptions of fraud
    A purchase of land, forthe re- cover, of which no suit is com- menced, is not the purchase of a litigious right. the purchase of ~ litigious arzgh~ rzgh~
    Appeal from thecourt of the fifth district. The plaintiffs stated
    The plaintiffs statedthat they are the owners and proprietors of a tract of land, described in the petition, sold in 1780 by V. Lesassier to J. B. Macarty, from whom their ancestor purchased it, the same having been possessed and enjoyed by the plaintiffs and those under whom they claim for thirty years and up- wards, and the defendants have, with force and arms, entered on the premises and disposessed them; they prayed that the defendants might be decreed to deliver and yield possession, pay damages and for general re- lief. The defendants pleaded
    The defendants pleadedthe general issue; alleging their possession for a year and a day, and that of those under whom they claim for thirty years and upwards that they are the real owners and proprietors of the land, under good titles. There was judgment
    There was judgmentfor the plaintiffs, and the de- fendants appealed. By the statement
    By the statementof facts, the plaintiffs are admit- ted to be the heirs of N. Prevost, dec'd. A deed of
    A deed ofthe widow Lesassier was read on the part of the plaintiffs, in which she declares on oath that, by an instrument under private signature, her said late husband sold to J. B. Macarty (in 178O) with When an us express condition of ratifying the sale, a tract of land of 80 arpens in front, on both sides of the bayou Teche, in the district of Attakapas, at the place vulgarly called the chicot noir, the price of which the said Macarty paid down ; that by the said instrument, Lesassier engaged to execute a notarial sale, at the requisition of Macarty; which was not done, owing to the destruction of the titles, which were destroyed in the conflagration of 1794 : these titles consisting in a grant to Lesassier, and several deeds of exchange with some Acadians, for a tract of land which Lesas-sier had on the Vermillion; in consequence of which for herself and her heirs, she confirms the sale &c. This deed is executed before a notary, and bears date of the 12, May 1804,
    The plaintiffs next introduced Macarty’s deed to their ancestor. Also, a petition from Macarty to the intendant of the province of Louisiana, in which he states that the sale, under private signature, of Lesassier for the land in dispute was mislaid in the office of Pedesclaux, and prays that an inquiry may be made, as to his payment of the taxes thereof.—The intendant’s order thereon of July 16, 1803.
    The deed of the representatives of J. B. Hebert to the defendants of Jan. 26, 1812.
    Certain Spanish proceedings to establish the destruction of Macarty’s house, his papers &c. in the conflagration of 1794; Macarty’s will.
    
      Boute deposed that in 1776, Lesassier made indigo on the west side of the bayou Teche, at the place where Ursin Prevost now lives, about 34 arpens below N. Loisel's lower line, which is opposite the lower line of the defendants’ land, upon the other side of the bayou. He believes Lesassier remained there until Macarty went on the land; but the witness was absent from the country, about this time. On his return, in 1779, he still found Lesassier there. Soon after his return, which he believes was in 1780 or 1781, he thinks Macarty removed on the land by sending a white man, three negro men and a woman, to keep a stock farm. He does not know how long it was kept, perhaps five or six years. Macarty had a field enclosed on the west side, where is cabin was, and cut wood on the opposite. There was no wood on the west side; he made a little pavure at the water’s edge, on each side of the bayou to cross his oxen and haul wood. He made a bridge over the bayou chicot noir, on the west side of the Teche, and about 35 or 40 arpens from the bayou, behind the land on which he had his stock farm, which has ever been called Macarty’s bridge. The land remained unoccupied, from the time Macarty removed his stock farm, until Prevost took possession of it, by putting his son in law N. Loisel, on it, on the west side. Lesassier told the witness he had sold both sides of the bayou. The old inhabitants so understood it; Declouet and Sorrel, who are dead, considered the land to belong to Macarty.
    Frelot deposed that he has been in the Attakapas for 38 years and lived most of the time, with Boutte. Macarty always claimed the land on both sides of the bayou Teche. When he came to Attakapas, Lesassier was on the land, where he remained one or two years after the arrival of the witness. When he left it, Macarty sent four negroes to keep his stock farm, who remained there four or five years. The land remained without settlement, until Loisel took possession of it, for Prevost. Macarty built a bridge on chicot noir, which was always known by his name. He cut wood on the opposite side, and the witness saw corn growing there one year, in a small uninclosed field, planted by Macarty’s negroes. Since he has been in the Attakapas, he has understood Macarty claimed the land on both sides of the bayou, and it was generally understood he owned it.
    Carlin deposed he came to the country about forty five years ago. He saw a stock farm of Macarty's on the west side of the bayou, and land cleared on each side and negroes at work. He understood that all on each side, belonged to Macarty.
    Pellerin deposed that Loisel arrived on the land, claimed by the plaintiffs, on the west side of the bayou five or six years ago.
    Borel at first stated that Loisel and one of the defendants went into possession, about the same time, about five years ago. On the next day, he corrected his testimony, by stating it might be a little sooner.
    Decuir, deposed he knew Macarty did all his business and has knowlege of the land claimed, but not of its boundaries. He was once desired by Macarty to measure eighty arpens, on each side of the bayou Teche, at the chicot noir; he did so, on the western bank only, where he found that quantity of land: he did not measure on the eastern bank, because it was covered with wood: he sent the plat to Macarty; he has been an inhabitant of Attakapas for about thirty five years, but does not recollect at what time Macarty came on the land: he recollects to have seen his settlement and stock farm for many years. He does not know that the land belonged to Lesassier and was settled by him: but it is in his knowlege that, for about thirty five or thirty six years, the land in dispute has been considered as the property of Macarty or his heirs. All the old inhabitants of the place told him so; and Sorrel advised the witness to buy it, saying Macarty owned eighty arpens on each side. Under the Spanish government, land was taxed, for public works generally and the premises were so in Macarty's name, having often paid the taxes for Macarty and at his request. Macarty's settlement was on the western side of the Teche.
    Judice deposedhe has been an inhabitant of the of the Attakapas for thirty nine years and knows the land of 1820. Macarty on the bayou Teche, at the chicot noir, but not its boundaries. It belonged to V. Lesassier, but does not know at what period he came on it. The land has been considered as belonging to Macarty for thirty five years past, till the defendants took possession of it. The land was taxed under the Spanish government as Macarty’s. V. Lesassier, his wife and the witness arrived together to the Attakapas and Lesassier acquired the land, but his wife disliked the place and Macarty, who was pleased with it, purchased it, in the presence of the witness, who had also been present at the purchase of it by Lesassier. The witness has knowlege that public acts of sale, in both instances, were executed : he believes, but he is not absolutely sure of it, that he subscribed them as a witness. He thinks they were executed before De-clouet. On the witness’ return from the Mississippi, he saw the enclosures and cabins of Macarty’s stock farm, on the western side of the bayou, abandoned-the establishment having been transferred to the Vermillion. He does not positively recollect* but believes Lesassier’s purchase of the land was about forty years ago. It is not in the knowlege of the witness how long Macarty occupied the land, but, on his return from the Mississippi, where he was for seven years or thereabout he heard it said that he had occupied it for three or four years or therabouts.
    Delahoussaie deposed that Athanase Hebert, and a person unknown to the witness, came to his father’s, and consulted him, as to the suit he was about to institute for the premises, and asked him whether he believed they had a good title thereto; to which his father answered they had none, and that he, Athanase, was old enough to recollect that the land had been exchanged for another, that on the Vermillion. On which Athanase replied that he was very young, yet he recollected it, and that the family had occupied the tract on the Vermillion, that he would have no suit for the land, and he had declined selling it, knowing that he had no right thereto.
    Deblanc deposed that Athanase Hebert told him he did not join in the sale of the land, because he was very young at the time: he well recollected that his father exchanged the land with V. Lesassier, for another on the Vermillion—that he had nothing to do with the present suit, that if Johnson failed he was to pay costs, and if he succeeded, account to Hebert’s heirs for one half of the price; that he, Athanase, had had nothing to do with the suit, for he had heard that his father had said that the exchange was a verbal one, and he would not disturb Macarty’s heirs, as his brother had settled the tract on the Vermillion.—The witness knew long before he came to the Attakapas (20 years ago) that Macarty owned a tract of eighty arpens on each side of bayou Teche, at the place called chicot noir. One Devesin had been advised to purchase it—he never heard that any person had any claim thereon.—The witness was, Commandant at the Attakapas and the land was taxed as Macarty’s. Macarty had a deed from Lesassier, but the witness believes it was destroyed in the conflagration of 1794. V. Lesassier’s deed was recorded at the request of Macarty, thro’ the witness, in the United States land office.
    Berard deposed that to his knowlege Macarty owned and posessed a tract of eighty arpens in front on each side of the bayou Teche, at the chicot noir, and paid taxes therefor. It was for a considerable time back reputed his property; he cannot tell how long, but a very long time ago. He never heard of any claim from any other person, nor of any adverse possession.—He was syndic as early as 1772, and was in office twenty two years, and as such collected the taxes. He knows that Macarty established a stock farm, but cannot say how long he kept it up.
    On his cross examination, the witness declared that he knows that Macarty possessed eighty arpens in front on each side of the bayou Teche, at the chicot noir, because he paid taxes therefor. Land and other property were taxed, and lists were made, on which every one was inscribed with the amount of the taxes, he was charged with: he knew Macarty had a stock farm, having seen his settlement, negroes and cattle; it was on the west bank.
    Porter, for the plaintiffs.
    It is well known to this court and it is in evidence that, in the year 1794, a fire broke out in New-Orleans, which consumed almost the whole of that city. It was so instantaneous and so rapid in its effects, that Macarty, the ancestor of the immediate vendor of the plaintiffs’ ancestor, escaped almost naked, and was not able to save any thing but his life, from the general destruction. All his property, in the city, and papers of every kind, were destroyed: among the latter were necessarily included all his documents and titles for the land he held in the Attakapas. As soon as he had ascertained the extent of the injury he had sustained, he endeavoured to remedy it. The titles, by which he had obtained the premises in question from Lessassier, being under private signature, it became necessary to obtain a formal recognition of their existence. He applied to the widow and representative of Lesassier, who died in the mean while. By a notarial instrument, she recognised the sale, made by her husband to Macarty, of 80 arpens in front on each side of the bayou and confirmed his title. He applied to the intendant in regard to these lands, and mentioned them as his property; in his last will is a declaration which, as a part of the res gesta in the cause, is material.
    The general reputation of the country that Macarty, for upwards of thirty years, before the commencement of the present suit, owned the land is proven by Boute, Frelot, Decuir and Berard and it is proven that such was the belief of Declouet and Sorrel, two old inhabitants of the neighbourhood, now dead. His heirs entertaining that belief, sold it with warranty, to the ancestor of the plaintiffs, whose right and those of his vendors were so generally and universally understood, that neither their possession or title would, it is presumed, ever have been called in question, had not the defendants bought up a title or grant calling for the premises, dated so far back as 1777, in favor of one Hebert, who, with his family, has resided in the Attakapas ever since, without ever claiming the premises. In their sale to the defendants, Hebert’s heirs stipulate that they are to have nothing to do with any suit against Macarty, and the vendees take care to stipulate that, unless they succeed at law, they are not to pay any thing for the land. Under this sale, they entered, at a time when the plaintiffs were already in possession of the tract sold them by Macarty, within the limits of which is that so purchased from Hebert, by the defendant.
    The length of time, which has elapsed since many of the transactions, to which we are obliged to refer, took place, the loose manner of conducting business under the Spanish government, resulting from the confidence and good faith which then prevailed in society, and the difficulty of producing proofs of facts so remote, no doubt inspired the defendants with the hope of holding the land. That they were mistaken, and that, as all others who present themselves in a similar shape in a court of justice, they will meet nothing but mortification and defeat, is confidently expected.
    We hope to prevail, I, because we have been in posession for thirty years, before the defendants’ entry.
    2. Because we shew possession for ten years and upwards, in good faith, and under a just title.
    
      3. Because, after a possession for such a length of time, the court will presume a surrender of the defendants’ title, under the circumstances of the case.
    4. Because, the defendants have purchased a litigious title and the plaintiffs have a right to be subrogated to their right, on payment of what they have stipulated to pay.
    I. The thirty years posession is proved by Boutte, who deposed that Macarty entered into possession in 1780 or 1781 and Lesassier had been in posession for four or five years before. Frelot, Decuir and Carlin establish those facts and Frelot adds that Macarty cleared land and planted corn on the eastern side of the bayou, built a bridge and erected a cabin on the western. He remained there four of five years. Decuir states he was ordered by Macarty to survey 80 arpens on each side of the bayou, he did so on the western side; that he paid taxes on the land for Macarty, which also proved by Berard.
    In examining and giving an application of these facts, we shall shew what is posession, according to the jurisprudence of our country—what species of possession may be the basis of prescription.
    Reference shall be made only to works of approved authority and no point pressed, beyond what is conscientiously believed to be tenable.
    Possession may be defined “ the detention of a corporal thing, which we hold in our power by ourselves, or another, who holds it for us and in our name." Pothier, Possession, n. 1. “ There are two principal kinds of possession, the civil and that merely natural” id. n. 6. In order that a possession may be reputed to proceed from a just title, and be consequently a civil possession, the possessor ought produce such a title, or shew that the possession has lasted during such length of time, as will give rise to a presumption that such a title intervened.—We will shew elsewhere, what that time ought to be. Id. n. 8.
    How is possession acquired?
    
      "In order to acquire possession of things, there must be the will of possessing and the apprehension of, it.” Id 39. Aspicimus possessionem corpore et animo, neque per se animo, aut per se corpore. ff. 41, 2, 3.
    The proof brings our case within this description. Macarty had the mind and intention to possess, joined to the actual occupation of the land; since he ordered a survey of it on each side of the bayou, cleared and cultivated land on one, and built a cabin and a bridge on the other. As the enquiry, at this stage is merely as to the quo animo, with which he possessed, it is unnecessary to state that parol proof is good to establish it. How, indeed, could it be proven in another way?
    How is possession, once acquired, retained? "In order to acquire possession of a thing, will alone does not suffice : there must be a corporal apprehension by us, or some one, who apprehends it for us and in our name, as we have seen supra. On the contrary, when we have acquired the possession of a thing, the will which we have to possess it suffices alone, to cause us to keep the possession, altho’ we do not retain the thing corporally, by ourselves or others, Id. n. 55.” Possession being once acquired, the possessor retains it afterwards by the single effect of his intention of maintaining himself in it, joined to the right and liberty of using the thing at pleasure; whether he avail himself of this liberty, by using the thing, or leave it untouched. Then we possess not only the land, which we cultivate, and of which we take the crops, but all those which we suffer to lay waste without going thereon, provided we do not suffer others to assume the possession, “Domat, 3, 7, 2, art. 24 Id. 3, 7, 1, art. 6 Licet possessio nudo animo adquiri non possit, tamen solo animo retineri potest. C. 7, 32. 4. Quemadmodum nulla possessio adquiri, nisi animo et corpore, potest, ita nulla amittitur nisi in quo utrumque in contrarium actum est. ff. 41, 2, 8. Quod vulgo dicitur estivorum hybernorumque saltuum non possessiones animo retineri. In exempli causa didici Proculum dicere : nam ex omnibus prœdiis ex quibus non hac mente recidimus et amisisse possesionem vellemus idem est. ff. 43, 16, 25.
    Under these authorities, which might be multiplied to any extent, it is clear that the possession of Macarty and of those who claim under him continued down to the time of the defendants’ entry, even if we did not shew a single act of ownership, during the interval. Clearly as this point is established, it will, if possible, by further citations, be made more satisfactory to the court.
    This will of retaining possession is always supposed, while no well marked contrary will appears. Therefore, even if a person had abandoned the culture of his land, he would not for this be presumed to have the will of abandoning the possession of it, he would then be presumed to have the will of retaining it, and he would effectually retain it. Pothier, Prescription, n. 55, & 56.
    But, the plaintiffs here are not under the necessity of resorting to this presumption of law, altho’ it would be sufficient for their purpose. So far from any thing appearing in evidence, to raise a presumption that Macarty intended to abandon the property, there exists every kind of proof, short of that which would result from natural possession, that he retained it. Taxes paid, bills of sale received and confirmed, application with regard to titles from the governor, declarations in the last will, every thing shews that, till the moment of his death, he had the intention of retaining his possession.
    As it was objected in the district court that possession, in order to be the basis of presumption, must be natural, we shall first dispose of this point.
    As prescriptions were established for the public good, in order that the property of things, and other rights be not always uncertain, he who has acquired the presumption has no need of title, and it stands to him in lieu of one. He, who possessed without title, prescribed at Rome, by thirty years, and after that period he could not be disturbed by the owner. Domat, 3, 7, 4, art. 2.
    
      An objection was made, in the district court, that there was no proof that we had entered into possession of the whole land. On a point so perfectly elementary and so well understood, it is hardly respectful to quote authorities. “ I am presumed to have acquired the possession of the whole estate, as soon as I have entered it and set my foot on it, either by myself or some one for me, without it being necessary that either I, or the person sent by me, should go into all the parts which constitute the estate. Pothier, Possession, 4, 1, § 2. ff. 41, 2, 3, n 1.
    But, it was said that we proved this by parol only. If this objection be to prevail, the consequences that follow must be that the prescription of thirty years without title will have to be expunged. For, in no case of the kind, the party, who invokes it, may avail himself of it, unless he proves his possession by parol.—Unless he be permitted by evidence of that kind to shew the quo animo he entered and possessed, his right would be restrained to the ground he stood on, or that his house covered. It would be absurd that the law should allow a right and deny every possible means of establishing it.
    The right, given to the possessor of thirty years, to claim a title by prescription, is founded on a presumption that he had a title and lost it. “ When ever the possession is long enough to cause a just title to be presumed, it is no longer, properly speaking, by virtue of the prescription that the possessor may flatter himself with a sure victory, but by virtue of the title, which his possession causes to be presumed. 6 D’Aguesseau, 629, Ed. 1769. The same lapse of time causes it to be presumed the possession proceeds from a just title, the memory of which is lost, and the written act containing the evidence of it mislaid, Pothier, Prescription, n 172.
    Courts of common law proceed on the same principle and decide on the same idea of a lost title, which they presume. Cowper, 102. 1 Bay, 30, 10, Johnson, 380, 2 Hayw. 147 1, Cooke, 3, 57. Peters, 132, 3 T. R. 151, 3, East, 294, Phillips’ ev. 119, 2 T. R. 159.
    If such be the presumption, and these authorities establish it, if without any kind of proof of title, the law raises one, from other circumstances, will the court refuse proof, on support of that presumption? Was it, in virtue of the prescription of ten years, which requires a just title and good faith, we were now contending for the property—if we had lost that title, we could give evidence of its contents. Domat, 3, 7, 4, art. 15. The prescription of thirty years is founded on the very suspicion of lost title, and yet we are told we cannot introduce any evidence of its contents. If we cannot, what is it but saying that the court may decide upon presumption, but shall not fortify that presumption by positive testimony?
    On this ground alone, then the plaintiffs rest with confidence their right to introduce parol proof: particularly, as it has been already shewn that to reject it, would be at once to decide that the prescription of thirty years, without title, could never have any operation. But, there is another principle on which its introduction could be supported : a principle, which is supposed to be common to every civilized nation, a principle which pervades the jurisprudence of all, because it flows from the necessities of human affairs and the obligations which justice and good faith create; it is this, that in matters of ancient date, the strict rules of evidence are relaxed, nay abandoned; because a difficulty exists in nineteen cases out of twenty, amounting nearly to an impossibility to comply with them. Hence it is that deeds, of thirty years standing, prove themselves, without calling the subscribing witnesses or accounting for their absence, that hearsay evidence is resorted to, &c. Philips’ Ev. 182, 350. 2, Fonblanque, 445.
    The civil law books, to which we are able to resort, in this western part of the state, are principally elementary. It is owing to this, that it is out of my power to shew the application of the general principle, which exists in that jurisprudence to the same extent, that I am able to do from the reports in England and our sister states. The principle, however, being once shewn, the court will no doubt hear with pleasure any thing which shews, how enlightened men, warmed to a sense of public utility and private justice, have applied these doctrines, in various cases, and that more particularly on rules of evidence, as from some cause or other (principally from our laws requiring evidence to be given viva voce) the English doctrines, on that subject, have become nearly incorporated in our jurisprudence. Such civil law books, to which I can resort, which at all touch on the point, go the full length I contend for.
    “ When proof is to be made of an ancient fact, and of which there are no written proof, nor living witness, if the fact be such that proof of it ought to be received, as e. g. if the question be how long such an estate have been in such a family, or at what time a particular work was constructed &c. evidence is received of what has been heard from persons, who were then living and are now dead.” Domat, 3, 6, 11, n, 14.
    Febrero, speaking of parol proof, hearsay evidence, general reputation, and in what cases they are admissible, says, in ancient facts, out of the memory of men, they make full proof : in cases of little importance, and those of difficult proof, when adminicules and other presumptions concur, or in the action de reintegrando, in order that the disposessed may be restored to his estate. Cinco Juicios, 3, 1, 8, 6, n. 374.
    The authorities from the common law books are to the same effect, but more minute in their distinctions, because we have more books to trace the application of the general principle.
    In that system, parol and hearsay evidence is admitted to prove whether parcel or not, in questions of prescription to prove general reputation, in questions of pedigree, to establish boundaries, how and in what circumstances and to what extent a party entered into possession, what declarations have been made by a party who claims under title, when a possession of thirty years has been continued in the person who wishes to make proof of these declarations. Fonblanque, 449. Philip's evidence, 182, 2 Haywood, 148, Buller's N. P. 294.
    This point has been discussed, because we deem it important to shew the general reputation of the country and the various acts of ownership exercised on the property. But, as to the extent to which our rights existed, when we went into possession and the animus with which we entered, we have more than parol proof. We have the bill of sale, or act of confirmation of Madam Lesassier, acknowledging that her husband had originally sold eighty arpens in front, on each side of the bayou, and that she made the conveyance, because the former act under private signature was lost.
    
      Now admitting, for a moment, that Lesassier had no right to sell the property—admitting that it does not give a title to the premises, still as the question is, at this moment, not what right Lesassier had, but whether he conveyed any to Macarty or not, it is evidence to that fact. The sale from Lesassier would be so : a recognitive act from his representative, acknowledging the same fact, must have the same force. Pothier, Obligation n. 743,
    Take then, the presumption arising from the possession, couple it with the declaration of the witnesses, join all to the bill of sale, and who can doubt that Macarty entered into possession of the land, as owner and possessor of eighty arpens front on each side of the bayou?
    II. Madam Lesassier’s deed to Macarty is of the 12th of May 1804, at a time when he had possession : it recites and confirms her husband’s title. It is a just title.
    “ We call a just title, a contract, or other act, of a nature to transfer property, by the tradition which is made in consequence of it—So, that if the property be not transferred, it is on account of a want of title in the person, who makes the tradition, and not on account of any defect in the title, in consequence of which the tradition is made.” Pothier, Prescription, n. 57.
    
      “ Those different titles, which have no name, and cause us to acquire the property of things by tradition, which is made to us in consequence of them, when he who makes or consents to the tradition is the owner, are just titles, which, when he is not, give us the right of acquiring those things by usucapion or prescription : usucapion, which is called usucapio pro se.” Id. n. 76.
    Under these authorities the sale of Madam Lesassier is a just title. To make it so, it is not necessary that she should have the property of the thing transferred; for then the party claiming under her would not be under the necessity of pleading prescription; all that is required is, that the title be such, that, should the property have been in her, the sale would have conveyed it to Macarty. From the tenor of the act, it is clear it would.
    But, it was objected that we should have shewn her to be the legal representative of her husband, before we could read the deed in evidence. Had it been necessary that could have been easily done : but it was not anticipated such objection would be made, or that, if it made, it could find favor or success. Deeds of this description are always held prima facie good, in suits against third parties. If they are permitted to make such an objection, it cannot be seen where it is to stop. In every case where an individual claims property by bill of sale from the heirs of any person, he will be obliged to shew that the vendors were the heirs, that there were no other children, and I suppose, after that they were not disinherited; or if the case is that the ancestor inherits and conveys, that to lay ground for reading the deed, you must shew that there were neither descendants nor ascendants alive, at the death of the person from whom the estate was inherited, except the grantor. I have never seen this in practice, nor is it right or just that it should be required : for who knows, if there be other heirs, that they wish to avail themselves of this right, invito benificium non datur, ff. 50, 17, 69. If they do and contest the act by suit, the question comes fairly to be decided on, and the whole circumstances are gone into. But, how can the validity of a deed be decided on collaterally in a suit between other parties? It savours a little of ridicule for a third party, not only to dispute any right in Lesassier, but also benevolently to take the part of his heirs, to whom he is pleased to give an imaginary existence. The law, it is believed does not sanction such an idea ; let it be remembered too that, in this case, every presumption is in favor of the instrument. Macarty would not have trusted the confirmation of his right to such an important piece of property, to the deed of an unauthorised grantor, and, if there were other heirs, they would not have suffered seventeen years to elapse without asserting their claim. The court has already sanctioned the principle contended for in the case of Martin vs. Hall & al.
    
    III. The deed of the defendants goes nearly the whole length of establishing my third proposition viz. that a surender of the title of the grantee ought to be presumed.
    Its features are remarkable, and nearly every line of it is marked by a curious mixture of avarice and good faith, each of which triumphs in turn. The fairest way, however, of examining the subject, is as if the conveyance was in the ordinary mode—as if it offered no cause of suspicion—and then to ascertain whether the tenor and effect of the act weakens or fortifies the conclusions otherwise flowing from the facts of the case.
    It has been already observed that one of the principles, on which the law recognizes the right of he who has possessed for thirty years, is that, after such a length of time it is presumed that the party had a title (even of the most solemn kind) which has been lost by time or accident. Numerous authorities have been cited to that effect (ante) and a close examination of them will shew that the courts to whom similar cases have been presented, presume a deed from him who claims the property, in favour of the adverse party who had nothing to shew, but a long possession. This from two grounds: to quiet possession, and because it is probable that the party surrendered his title, or he would not have suffered so long a time to elapse without asserting it.
    Long and undisturbed possession of any right or property affords a presumption that it has had a legal foundation, and rather than to disturb men’s possessions, even records have been presumed. Peake’s Ev. 31.
    Where a mortgage deed is produced, if the mortgagor never entered, and no interest has been paid for twenty years, courts have uniformly instructed juries to presume a surrender. 3 Johnson, 376; 7 Id. 283; 12 Id. 394; Bull. N. P. 110.
    In the case of Patton vs. Hynes, 1 Cook, 357, the Circuit Court of the U. S. decided that, after a peaceable possession of land for twenty years, it may be left to the jury to presume, that there was a deed and that it was registered.
    So, where M. died in possession of land, and his son and heir at law succeeded to the possession, and continued therein for eighteen years, it was held that a purchase of the land by the ancestor might be presumed. 10 Johnson, 377.
    These are ordinary cases, surely not so strong as the present. Heberts’ patent is of 1777. Can it be supposed that from that time to 1812, if the land had not been sold to Lesassier (as the witnesses prove) he would not, in some mode or manner have taken possession or asserted his right? No tax was ever paid by him, he cannot produce one witness living nor the say so of any man now dead, that during these thirty-five years any right was claimed or any species of ownership on the land exercised. Nor does he attempt to account for the violent presumption thus raised against him, and that too, living within a few miles of the premises. He shews no absence, leaves a silence from thirty to forty years unexplained. Gentlemen may talk of proof by writing and proof by record : but if this be not a full and conclusive proof of a surrender of title, as strong or stronger than either or both of these put together, I must confess I know nothing of what is evidence: nor can I conceive what is to make an impression on the human mind, if this does not.
    How strongly, too, does the language of Hebert’s heirs’ sale to the defendants strengthen and fortify this presumption, if indeed it can be strengthened. It presents a curious spectacle of the reluctance, with which they consented to sell that, which they felt they had no right to—of the great doubts and perfect wordly wisdom of the purchasers, who made, as the court will see, a saving bargain, and of the pains which the vendors had, in yielding up their good faith for the chance of gaining the purchase money. The act of sale, after stating the parties and going on to say that the heirs of Hebert sell (not the land) but their right thereto, contains the following clause : “ The said conveyance made for and in consideration of 3,500 dollars, payable when the purchasers will be confirmed in the possession of the said tract of land, by the decision of a court of justice, or when the heirs of Macarty will have made an abandonment of their rights and claims to the same. It is well understood among the parties, that all costs arising from the law-suits, with the heirs of Macarty, or any other claimants under Macarty’s grant, will be at the risk of the said James Johnson and George Singleton ; and if any deed or conveyance shall appear from J. B. Hebert, deceased, for the said tract of land, the present deed and every thing herein shall be null and void, otherwise to remain in full force and virtue, &c.”
    Now, unless there was something more than common in the circumstances of this case, why adopt such an uncommon mode of making the conveyance, unless they really felt that something might hereafter appear, which they dreaded, and which they hoped, would not perhaps come to light? Why adopt such numerous and severe precautions, and why adopt them all against Macarty, and entertain no apprehension from any other source? Any intelligent man can readily give an answer to these queries, and see through the whole transaction. The defendants thought it was a good chance to get a most valuable piece of property, at one fourth of its real price. In making the experiment, they ran no risk of loss. The vendors evidently yielded with reluctance to the temptation thrown in their way. It is a pity they yielded at all. But, in every line can be traced their doubts, pains and anxieties, at what they were doing. Why did they feel them? Who can have any difficulty in giving an answer?
    Does not, then, the language of this deed most strongly fortify the presumption otherwise flowing from length of time, and make this one of the clearest cases that can be imagined of a surrender of a title? Let the court take with it the testimony given in the cause, and how will this point stand? Thirty-six years silence on the part of the vendors—a deed couched in the language already stated, and parol evidence to sustain what is otherwise a violent presumption.
    IV. Hebert’s heirs sell to the defendants all their rights and pretensions to the land—to be paid for, when the decree of a court of justice confirms them in their right to it; and a clause is added, that the costs arising from the law-suit with the heirs of Macarty, shall be at the vendors’ expense. Is this a litigious right?
    Of its being so to every common intent there can be little doubt. The deed acknowledges a suit to be commenced, and provides for its consequences. It is in truth the purchase of a law-suit in express terms. Let us examine whether there be any thing in our law that repels the idea.
    “A right is said to be litigious, when there exists a suit or consultation on the same. Cod. Civ. 368, art. 131. Are these expressions restrictive, or merely enunciative? We contend that they are enunciative: because one great object of the statute would be defeated, if they were regarded in any other light. The object of this statute, as it is plain to every one, was to cut off temptation to those who make it their business to buy up rights at a low rate, that they may succeed in law—to check litigation of this kind, which all civilized nations abhor, by depriving him, who makes such a purchase, of the means of rendering it a matter of profit. This was no doubt the object of the legislator. What other rule of construction can there be applied to it, but that you must so consider and restrain it, as “to repress the mischief and advance the remedy.”—A cardinal rule, never to be departed from by courts of justice in construing remedial laws. Now, the cases in which this provision would have a beneficial tendency must be few indeed, if restrained to suits already commenced, because they are seldom the object of traffic, and for this reason: men, who, do not make trading in law their means of livelihood, seldom go into court, till after having well considered the nature of their claims and until they are advised that it is such a one as can be supported. After taking this step, they scarcely ever feel inclined to sell under the real value, and contracts for property pendente lite are, as is well known, extremely rare. There may be exceptions to what is here asserted, but they are few. On the other hand, it is a great evil to permit men to go round seeking every obsolete claim, hunting out every forgotten or obsolete title, purchasing it for little or nothing, as is the case here, and the instant after they acquire it making it the basis of an expensive and vexatious lawsuit. Independent of the magnitude of this evil, it is one of frequent occurrence, and from its nature calculated to increase to an alarming extent, unless frowned upon and punished whenever the proof of it can be completely made.
    There is another consideration, which ought to have considerable weight in the construction of this statute. One of its objects, perhaps the only one, was to prevent litigation. By confining it to suits commenced, this object is in a great measure defeated. For, as the suit is begun, before the purchase is made, litigation is not at all checked. The only difference is that it is carried on at the expense of one man, instead of that of another. It is difficult then to conceive that the legislature intended to restrain the provisions of the statute to cases in which the very evil they wished to eradicate would remain untouched. On the other hand, by applying it to the extent which is here urged, the law is made to reach and destroy the mischief, which the court clearly see the lawgiver had in view.
    An objection may be made that this rule of construction would check and embarrass the transfer of property. A little consideration will show that this idea is not tenable. What is contended for here does not reach the case of one buying a piece of property, where one who has an adverse claim may or may not assert his right, or where the vendor would have prosecuted his claim as well as the purchaser. All that is contended for is that it reaches this case. Where positive proof is given that the purchaser is the cause of the litigation, that he buys a law suit, and that though those he bought from are willing to sell him the right of action at law, it is clear it is one which they would not exercise themselves. Had the sale been in these words: “we the vendors sell and convey the right of a law suit against Macarty,” I suppose no one would contend that it was not a litigious right which the vendees acquired. Yet, let the defendants’ deed be examined, even in the most favorable aspect, and it will be seen that in truth they bought nothing else.
    In support of this position, the court is referred to Pothier, Vente, n. 583. 15, Jur. du Code Civ. 328-345.
    At Rome, purchasers of litigious rights were held in such abhorence, that the law refused them an action for the thing thus acquired. Si contra licitum, litis incertum redemisti, interdictæ conventionis tibi fidem impleri frustra petis. Code. 4, 35, 20.
    Brent, for the defendants.
    I contend that 1. the plaintiffs, if they recover, must do so, according to the title which they have set forth, viz: a deed from V. Lesassier, in 1780—this they have failed to prove.
    2. The deed of Mad. Lesassier is no evidence of that of V. Lesassier, and ought not to have been received in evidence.
    3. The petition states that the premises were sold in 1780 to V. Lesassier, by him to J. B. Macarty, from whose heirs they were purchased by the plaintiffs. Therefore, before they recover they must show, by legal evidence, that the land was sold by V. Lesassier to Macarty. The legal evidence is the best which the nature of the case admits of: in the present case, the production of the original deed from Lesassier. Their omission of doing so leaves them under the imputation of withholding a document, which, if produced, would be evidence against them. Lucile vs. Toustin, 5 Martin, 613.
    They urge that this deed was once under private signature, that it is lost, and consequently they may give evidence of its contents. If this were true, it would not be controverted: but in order to avail themselves of it, the yought to have stated it; as they did not, the court will not permit them to take us by surprise.
    But, admitting, that this may be proven without having been pleaded, to the general rule that no such evidence shall be received of the contents of a deed, there is, indeed, an exception, when the deed is lost. Civ. Code, 312, art. 247. 2, Pothier, Obligations, n. 847 and 815. Are the plaintiffs within this exception?
    Madam Lesassier’s deed furnishes the only evidence on record, that the deed of her husband to Macarty, was under his private signature ; but she does not say it was lost in the conflagration of New-Orleans, in 1794. She says that by the said deed her husband bound himself to execute an authentic act on request, which was never done, owing to the destruction of the titles, burnt in the conflagration of 1794: which titles were a grant for a parcel of the land, and deeds of exchange with several Acadians, for the rest.
    But the introduction of the deed of Madam Lesassier was opposed, and ought not to have been received. It is true it is sworn to, but, it is a voluntary affidavit, made ex parte, and which cannot be used against the defendants, as neither them nor any person, under whom they claim, were present, nor have they ever had an opportunity of cross-examining the deponent.
    In neither of the other documents do we find any legal proof, that the deed, under the private signature of Lesassier to Macarty, ever existed, nor of its loss, nor of the fortuitous event which occasioned this loss.
    The plaintiffs, on this point, are not more fortunate, in their attempt to establish this deed by witnesses. None of them can say any thing positive, with regard to its existence or loss. Deblanc has heard or believes it was lost in the conflagration of New-Orleans, in 1794; but the gentleman does not inform us how he heard of it, or why he believes it—whether he heard it from Macarty, or believes it from the petition of Macarty to the intendant, and the proceedings had thereon.
    I lay it down, as an incontestible principle, that, before the contents of an instrument may be proved by witnesses, the court must be satisfied of its former existence, and its loss or destruction. Civ. Code, 312, art. 147. 2 Pothier, Obligations, n. 815. Admitting, however, all this to have been satisfactorily proven, the witnesses who depose, as to the contents of the instrument alleged to have been lost or destroyed, can only be persons who have had it in their hands, and are well acquainted with the handwriting of him, who executed it, or who had a particular knowlege of the fact or contract of which it was intended to be the proof. It is, therefore, clear that, in the present case, the court cannot listen to the testimony of persons, who declare that they have heard and believe that Lesassier sold the land in dispute to Macarty.
    The plaintiffs, however, rely on the deed of Madam Lesassier. This instrument was executed in 1804, and, as is there stated, after Lesassier’s death. The introduction of this paper as evidence was opposed, and a bill of exceptions was taken to the opinion of the court, in admitting it.
    This instrument contains the declaration on oath of that lady, that a deed under the private signature of Lesassier, her husband, was given in 1780, to Macarty. She swears, indeed, to all the other facts which the plaintiffs allege in support of their title.
    Farther, the defendants had a right to resist the introduction of this piece of evidence, on the ground that it took them by surprise, inasmuch as the facts thereby disclosed, were not alleged. The plaintiffs claimed under a deed from Vincent Lesassier to Macarty, in 1780, and a possession of thirty years. These facts were denied and put at issue by the defendants, who also set up a better title. They came prepared with testimony to disprove the facts so alleged by the plaintiffs. Most undoubtedly, then, the introduction of another title, not made in 1780, but in 1804, not executed by Vincent Lesassier, but by Madam Lesassier, his widow, took them by surprise, as nothing in the pleadings could lead them to the belief, that the plaintiffs relied on this latter deed.
    Again, Madam Lesassier sells and warrants the premises to Macarty. Admitting, therefore, that her deposition, contained in this deed and sworn to, was regularly taken, in the presence of the defendants, still they could refuse its introduction, as the evidence of an interested person.
    Let us now examine this instrument, as a deed conveying a title to the land, not as a deposition of a witness.
    It is not shown that Lesassier was dead when it was executed—nor even that the person executing it was his widow—nor whether he died testate or intestate, with or without issue—whether his heirs were of age or minors, single or married women. She mentions, indeed, in the deed, that her husband left heirs, and that she sells and warrants the premises, for herself and them. Of her capacity to do so, we are not informed by her nor by the plaintiffs.
    Will it be contended that a community of gains existed between her and her husband, that the land was acquired during her coverture and consequently she had a right to one half of it, and her deed is good therefore? But from whence is it concluded that the land was purchased during the coverture: we have not been favored with the date of its execution. In admitting this sale of one half of Lesassier’s tract to Macarty I would not put my clients’ rights in much jeopardy, for it does not appear that the moiety of the widow embraced the premises in dispute.
    It is rather to be supposed that Macarty considered himself as the purchaser of one half of Lesassier’s tract, as he declares in his will that he owns eighty arpens of land, in front, on the river Teche, in the Attakapas, and the parties have agreed, in the statement of facts, that the plaintiffs are not entitled to recover, unless they show a title to eighty arpens on the east side of the Teche; and all the testimony fixes Macarty, and the plaintiffs afterwards, on the west side, where he had his cattle farm.
    The plaintiffs first claim the land under the prescription of thirty years.
    In this respect, they cannot avail themselves of the possession of Lesassier; as neither he nor his heirs are shown to have transferred their rights: but could they join Lesassier’s possession to their own, I am ready to prove that the defendants and those under whom they claim, have possessed the premises, from the date of the original grant, in 1777, to the present day. They are now, and were when the present suit was instituted, the actual possessors of the land. In order to establish this fact, I refer the court to the statement, where it appears, under the hands of the parties, defendants went into possession in 1812, and the present suit was not instituted till the 15th of October, 1815. Accordingly, their possession was undisturbed during nearly four years: a sufficient time to cause them to be considered as legal possessors. Civ. Code, 478, art. 22, 24.
    In the original grant, in 1777, the Spanish governor certified that J. B. Hebert had been put in possession of the locus in quo, and the statement shows the purchase of it by the defendants, from Hebert’s heirs.
    The actual possessor, when he proves that he has formerly been in possession, shall be presumed also to have been in possession, during the intermediate time, till the contrary be proven. Civ. Code, 484, art. 142.
    Some of the witnesses examined disprove the possession of the defendants, or those under whom they claim, since 1777. They declare that neither the plaintiffs, nor those under whom the claim, were ever actually possessed of the land, and that they always resided on the opposite side of the river, at the distance of thirty-four arpens, more than a mile, below a line drawn opposite to, and in continuation of, the defendant’s lower line.
    
      One or two witnesses state that Macarty crossed the river to get fire-wood; that he cut it two arpens below the locus in quo.
    
    If the defendants, or those under whom they claim, had possessed the land from the year 1777, the date of the original grant, to the year 1815, that of the institution of the suit, a period of thirty-eight years, how can the plaintiffs recover it under the prescription of thirty years (if they have shown it, which we deny) of a spot of ground, on the opposite side of the river, upwards of a mile farther down?
    But, the plaintiffs contend that Macarty having made a settlement, and said he owned eighty arpens in front, on each side of the bayou, and it being sworn that such was the report in the neighbourhood, his possession of a small spot, on the west side of the bayou, was a constructive possession of the whole tract, now claimed under him. What an extraordinary doctrine! Suppose that Macarty or Lesassier, when they settled there, had declared that they owned the land, on both sides of the Teche, for ten miles, and the witnesses to day should swear, that they heard it said, that either of these gentlemen, or both of them, owned the land for that distance, would the court extend their possession, so as to deprive a man of his land, holden under possession and grant, at the extreme end of the ten miles? Yet this doctrine would so extend it. It is out of all reason, at war with justice, and in opposition to the law.
    The plaintiffs' counsel has referred to the Treatise on Possession, to support this doctrine. The law there laid down is intended for a very different case. Pothier says, “it is so with regard to him, who acquires an estate, which the former possessor willingly abandons to him.” Suppose a title or not, in the former possessor, who before occupied the land, as he possessed it, it is not necessary that he who afterwards acquires it should enter on every part of it: the possession of a part sufficing. But it is necessary, in such a case, that the possession of the whole should once have been in the former possessor, without title: for he cannot transfer more than he possessed. In the present case, if the plaintiffs hold under Lesassier (which is denied) it is proved that he (if he be considered as the former possessor) never possessed the locus in quo. If Macarty be considered as such, it is proved that he never possessed it. But, the real, and only former possessor, was J. B. Hebert, with whose consent, or that of his representatives, the plaintiffs never possessed it.
    But, it never was understood generally in the country that Macarty claimed eighty arpens, on both sides.
    It is true that the plaintiffs have introduced four witnesses, who, all of them, state themselves Macarty's intimate friends, and swear that they heard him and others say that he owned eighty arpens on each side: but three other, old and respectable witnesses, swear they never heard that he owned that quantity of land.
    Judice says he was present when Lesassier bought the land at Chicot-noir, and that he bought only thirty or forty arpens, on the west side, and, at the same time he sold to Macarty; that he was a witness to the two sales, both of which were made by authentic acts, passed before Declouet. This witness was introduced by the plaintiffs, and he proves that Lesassier's deed to Macarty was an authentic one, and therefore not under private signature, and for land on the west side of the bayou, only.
    Gonsoulin and Dugat say they always heard and understood he owned and claimed eighty arpens on one side of the bayou only. It may not be improper to remind the court, that Gonsoulin was the regular surveyor of the Attakapas, under the Spanish government, and had a perfect knowledge of land tracts, in that district.
    The testimony of Berard can be of but little avail to the plaintiffs. It appears that this aged gentleman has not a very perfect recollection of the facts he narrates. His deposition was taken twice, and the last time, he states positively the contrary of what he had declared the first.
    
      The plaintiffs’ counsel urges that four witnesses deposing in opposition to three, the former ought to prevail. This, as a general rule, is cheerfully admitted, but the contrary one must prevail, when the court seeks to ascertain the general belief and understanding of a neighbourhood. But the matter does not rest on parole evidence only.
    Macarty, in his last will, declares that he has a tract of land of forty arpens of front, on the bayou Teche, at the place called Chicot-noir. What better proof could be, produced? The vendor of the plaintiffs’ ancestor, in his last will, which they have read in evi-dence, declares he owns a tract of eighty arpens on the Teche. Had he owned a front of one hundred and sixty, or of eighty on both sides, would he have expressed himself thus? The contrary appears in the next line of his will, where he speaks of a tract of eighty arpens, on both sides of the Vermillion, which he describes thus : “ one of one hundred and sixty arpens of front, on the Vermillion, at the place called La Prairie Sorrel.”
    Let the court take these written declarations of Macarty, more certain than the floating, idle report of the neighbourhood, join them to the testimony of Gonsoulin, the surveyor, and that of Judice and Dugat, and the conclusion is irresistible.
    The just title which the plaintiffs present as a basis of the prescription of ten years, is the notarial act executed by Lesassier’s widow, in 1804. Within seven years and eight months after its date, according to the statement of facts, the defendants took actual possession of the land in dispute. The plaintiffs have not shown that they possessed under any other just title : for I have clearly demonstrated that there has been no proof of any deed from Lesassier to Macarty, in 1780, for a tract of eighty arpens on both sides of the Teche—that the only certain testimony of the existence of a deed, is that of Judice, who swears that he was a subscribing witness to one which was an authentic act, and for eighty arpens on the west side of the bayou only. Why is not this act produced?
    But, suppose it had been proven that a deed had been made by V. Lesassier to J. B. Macarty, in 1780, for the land on both sides of the bayou, there is no proof of the locus in quo ever having been in the possession of Macarty, his heirs, or the plaintiffs: on the contrary, I have shown that the defendants have been in possession of it since the year 1777, and according to law, are now the actual possessors. Civ. Code, 434, art. 42. Even supposing that the plaintiffs have, with a just title, been in possession of a part of the land deeded to them, still if the defendants, or those under whom they claim, have, at the same time, and in good faith and a just title, possessed the locus in quo, the plaintiffs’ possession could never extend to the land of the defendants. For, it is a clear principle in law and in reason, that two persons, under opposite titles, cannot possess at the same time : and, even if they could, the court would support the possession of him who had the best title.
    Here, the plaintiffs show no original title whatever. The defendants show a complete Spanish title and actual possession under it, in 1777, a confirmation of their right by the commissioners of the United States, and actual possession at the time of the institution of the present suit.
    The counsel urges that the court will presume a deed from J. B. Hebert, under whom we claim, to the plaintiffs, or those under whom they claim.
    The counsel argues as if it was in proof that the defendants land, the locus in quo, had been in the possession of the plaintiffs or those under whom they claim, for thirty years before the possession of the defendants commenced. In such a case, the authorities quoted might have some bearing. But it has been proven, that no other person, except the defendants, or those under whom they claim, ever had the possession.
    Without examining the cases cited, and to save time, I will make but one observation on them. The court will perceive from a perusal of the authorities of the plaintiffs, that they relate to cases in which the land is in the possession of, or has been possessed by the party, which is not the fact here.
    Remarks have been made on the deed of Hebert’s heirs to the defendants, and it is intimated it ought to be viewed with a suspicious eye.
    It is in the usual form. The caution of the vendors to avoid a law suit is manifest. Honesty and good faith influenced them. They are honest but ignorant persons. They had understood the land was claimed by Macarty’s heirs, under a grant to him, and by purchase from their ancestors: this ap appears from the deed. When the defendants offered to purchase the land, they informed them that they would gladly sell, but as they understood that Macarty’s heirs claimed the land, and they had no knowledge of the nature of the claim, they would not convey, so as to render themselves answerable for any expenses attendant on a law suit: and if Macarty, as was said, had a deed for the land from their father, they would not sell, The defendants proposed a conditional purchase, viz. that the payment of the price should be deferred, till the right of the vendors was established in a court of justice. Their offer was accepted. All this is gathered from the surface of the deed.
    It is contended that a deed from J. B. Hebert is to be presumed from a clause in the deed which provides for its nullity, should any deed appear from Hebert for the land.
    The good faith and honesty, which dictated this clause, show clearly that the vendors did hot believe that any such a deed was given. But, as they were young, and there was a possibility of a deed having been executed under the private signiture of their father, they provided for this possible case.
    Lastly, we have the definition of a litigious right in our statute. A right is said to be litigious, when there exists a suit and contestation for the same.—Civ. Code, 368, art. 131: but this does not apply, when the sale has been made to the possessor of the inheritance, subject to the litigious right. Id. art. 132.
    At the date of this deed, January 26, 1813, no suit existed: the present one having been instituted on the 15th of October, 1815. But the expressions of the code are not restrictive, but merely enunciative.
    
    If the code had gone no farther than the 130th article, which provides that he, against whom a litigious right has been transferred, may beget himself released, by paying the real price of the transfer, the court might have determined that the term litigious right was enunciative. But, in the next article, the legislature defines what is meant by a litigious right. Should the doctrine contended for, in this case, be correct, there would be no security in purchasing property, to which another man may have a claim. although a bad one. The law with respect to litigious rights, as relied upon, has no relation to cases like the present, where a purchase of land is made.— It relates only to cases in which an uncertain right is in litigation, and where a small consideration is paid. Certainly, it never was, nor can it be ever contemplated, that because a person sets up an unfounded right to the land of A, and B purchases it, knowing that a claim is made thereto, B is the purchaser of a litigious right. The recognition of such a principle would avoid a considerable portion of the sales of land in this state.
    The statute expressly provides that, where a litigious right is sold to the possessor of the land, subject to it, the vendee shall not be obliged to yield his purchase. Civ. Code, 368, art. 132. In this case, supposing that the right purchased was a litigious one, the defendants, who purchased it, were the possessors of the land, at the time, and, of course, under the positive presumption of our law, not liable to be compelled to yield it.
    To show that the defendants were the possessors, at the time of the purchase, it will suffice to refer the court to the date of the deed, which is the 26th of January, 1813, and to the statement of facts, which shows that they had moved upon the land, in the beginning of 1812, and of course had been in possession almost thirteen months, a time sufficiently long to cause them to be considered the legal possessors. Civ. Code, 478, art. 23.
    Farther, admitting the defendants to have really purchased a litigious right, this circumstance could not avail the plaintiffs. For, they have not alleged it, and have not prayed, in any part of the petition, to be allowed any benefit from it.
   Martin, J.

delivered the opinion of the court. The plaintiffs rely on a possession of thirty years—a possession of ten years with a just title—the presumption of the surrender of the title of the original grantee—and a right of being substituted to the right of the defendants, on a suggestion that they purchased a litigious one.

I. The plaintiffs cannot avail themselves of Lesassier's possession. There is not any legal evidence of his having transferred any right of his. One of the plaintiffs' witnesses, Judice, deposes that Macarty, had an authentic title from Lesassier. None is produced, neither is there any legal evidence of the loss or destruction of such a title, nor of its contents. The plaintiffs’ counsel urges that it was a private one, and was burnt in the conflagration of Macarty’s house, in 1794. The testimonial or procedure made by Macarty, after the conflagration, is an ex parte proceeding, but as it has been read without objections, has been considered by the court. The conflagration is thereby proved, but not a word is there said of the sale to Lesassier, nor of Lesassier’s to Ma-carty, nor of the original conveyances, though many papers of infinitely less importance are there detailed, with great minuteness. In the petition presented by Macarty to the intendant, in 1803, nine years after the conflagration, the sale from V. Lesassier to Macarty is spoken of as a private one, which was mislaid, extraviado, in a notary’s office, and the original titles for the land, which Macarty says had been delivered to him by Lesassier, are said to have been destroyed in the conflagration of his house. Yet, the original title to the premises, the grant from the Spanish government, does not appear ever to have been out of the possession of the grantee or his successors, and is annexed to the record. Neither is there any legal evidence that Lesassier ever possessed any land on the eastern side of the bayou, the side on which is the locus in quo, except the declaration of Boutte that Lesassier had told him he had sold to Macarty eighty arpens on each side of the bayou. Judice has sworn he was present when Lesassier purchased the land of Chicot-noir, on the western side of bayou Teche. Delahoussaye, the Chevalier of that name, and Deblanc, have sworn to conversations, in which Athanase Hebert, the son of J. B. Hebert, the grantee of the locus in quo, told them the latter had given the locus in quo to Lesassier in exchange for a tract on the Vermillion—but these conversations are of a modern date, were posterior to the purchase of the defendants. Athanase Hebert is not shown to be either dead or absent, and no efforts have been made to procure his attendance in the district court.

We conclude that although the declaration of Le-sassier to Boutte, now dead, which was made a great many years ago, at a time when it does not appear to have had any interest to misrepresent, might perhaps be received in a case of prescription and boundaries, yet, as in the present case, it is sworn by a witness that the sale of V. Lesassier to J. B. Macarty was a public one—and the private one spoken of by Macarty is said to have been mislaid by Macarty himself, and by him alone, parole evidence cannot be received of the contents of that instrument.

The possession of the locus in quo by Macarty is attempted to be established by showing that he had a stock farm on the opposite side of the bayou, and cut wood, made a clearing, and planted corn on the other : that the general reputation and understanding of the neighbourhood was that he owned eighty arpens on each side, and that he was taxed, and paid the impositions accordingly.

1. The stock farm is sworn to have been on the western side, below, and at the distance of more than a mile (34 arpens) from the lower line of the locus in quo, which lies on the opposite western side.

It is shown that Macarty cut wood on the eastern side, opposite to the stock farm, and that his negroes one year, planted corn, in an unenclosed field, and that small logs were laid along the margin of the bayou to facilitate the passage across of the oxen which hauled the wood. The stock farm was kept from 5 to 6 years—that is to say from 1780 to 1786, and no actual occupation of any part of the whole tract claimed by Macarty appears to have been taken till 1809 or 1810, when the present plaintiffs made a settlement, on the western side of the bayou, opposite to the locus in quo. Is this such a possession in Macarty of the locus in quo as may be the basis of the prescription of thirty years ?

It is contended that the establishment of the farm, on the western side, the cutting of wood, the clearing and cultivation of land on the eastern, were acts of ownership, exercised by Macarty, over a tract of eighty arpens on each side of the bayou, of which Macarty claimed the property, and the statement of facts shows; that if the plaintiffs are entitled to recover eighty arpens, on the eastern side, the locus in quo is included therein.

It is true that the possession of an estate is taken by entering on any part of it, and there is not any necessity of the party going into every part—but this is to be intended of a person taking possession of an estate, which the former possessor is willing to abandon to him. Pothier, Poss. et Pres. n. And if Macarty was proven to have purchased the tract of eighty arpens on each side of the bayou, which is claimed, from a person who possessed it before the sale, and was willing to abandon it to him, these acts would afford abundant evidence of a taking possession of the whole tract.

But it is different when a usurper enters, vi et armis, and drives away the possessor: he acquires possession inch by inch only, of the part of the estate, which he occupies. Pothier, loro citato.—Si cum magna vi ingressus est exercitus, eam tantummodo partem quam intraverit, obtinet, ff l. 18, de acq. poss.

Is it otherwise as to the intruder who enters without force—or in an homely, but expressive term, a squatter? When a person claims by possession alone, without showing any title, he must show an adverse possession by enclosures, and his claim will not extend beyond such enclosures. Nothing can exclude the right owner from his general possession, or operate in derogation of his right, but acts of ownership, done by the intruder, which unequivocally shows a claim of title in opposition by an adversary to the rightful owner, and such as necessarily excludes him from enjoying and participating in the advantages derived from the possession. Harris and M Henry, 622. The possession of an integral part of a whole, does not include that of the other parts. So, he who possesses only one half of an estate, susceptible of division, will prescribe as to that half only. Tantum prescriptum quantum possessum.—La Porte, des Prescriptions, 48.

Macarty's possession, the extent of which is not shown, while it did not reach the lowest line of the locus in quo, and does not appear to be within a mile of that line, cannot be considered as the possession of the locus in quo, or any part of it.

Neither is it very clear that the possession shown, is of such a nature as to be the basis of the prescription of 30 years. Wood was cut, corn planted, all in a small unenclosed field, by Macarty's negroes—according to a witness—another saw wood cut, a clearing, and negroes at work. It is not likely that the last wit ness speaks of what is deposed by the first. In Grant vs. Wimburne, the supreme court of North Carolina held that feeding of hogs or cattle, building of hog-pens, cutting wood off the land, may be done so secretly that the neighbourhood may not take notice of it, and if they should, such facts do not prove an adverse claim, as these are all acts of trespass.— Whereas, when a settlement is made on the land, houses erected, fields cleared and cultivated, and the party openly continues in possession, such acts admit of no other construction than this, that the possessor means to claim the land as his own. 2 Hayw. 57.

Neither do these alleged acts of ownership, clearly appear to have been exercised early enough to be evidence of a possession of thirty years. The statement of facts shows the entry of the defendants in the early part of 1812. These acts cannot therefore avail, unless they were exercised in the early part of 1782. The testimony is, that Macarty came on the land on which Lesassier had an indigo farm, viz: on the western side of the bayou, in 1780 or 1781. The time at which he began to cut wood, at which his negroes planted corn in the unenclosed field, &c. is not specified—though, perhaps, as it is sworn there was no wood on the eastern side, the want of that article must have been felt early, and the cutting of wood could not have been delayed long.

Upon the whole, we are of opinion, admitting the alleged acts of ownership, shown to be of such a nature and of so early a date as to avail the plaintiffs, they are unavailable, on account of the place—that the occupation of the particular spot on which they were exercised, cannot be considered as adverse to the rights of J. B. Herbert, the owner of the locus in quo, distant near a mile. It did not exclude him from enjoying any of the advantages which he did or could derive, as possessor of the locus in quo. Prescription takes place only when the owner neglects to claim, when he has it in his power so to do. Part. 3, 29, 1. The acts of Macarty were not such as Hebert could have successfully opposed. Surely, while Macarty kept within a mile from the locus in quo, Hebert required no legal proceeding on his part to protect his title.

2. The general understanding and reputation in the neighbourhood—the declarations of Declouet and Sorrel, that Macarty was the owner of eighty arpens in front on each side of the bayou, may perhaps be evidence of a title, but are surely not so of his possession.

3. Evidence that Macarty was taxed for the public works and charges of the district, as owner of 80 arpens of front on each side of the bayou, would prima facie establish his possession. Pothier, Poss. Pres. But this evidence must be legal. Now, these taxes were not laid orally. We should presume, if the plaintiffs had not proved it, that there were written documents establishing them. Berard says lists were made containing the names of each planter charged, with the amount of the imposition of each. Does it suffice to say, that under the Spanish government, the public papers in the archives of distant districts, were loosely kept and carelessly preserved, without evidence of the least inquiry or effort to procure a copy of such lists ? If so, under the Amecan government, which had lasted twelve years, at the inception of the suit, we know evidence of the assessment of taxes can be easily obtained. We, therefore, conclude, that while the literal evidence of the impositions is neither produced or accounted for, parol proof cannot avail.

But a written evidence is said to exist in Deblanc's certificate, obtained by Macarty, on his petition to the intendant. This certificate is torn and truncated, has ever been in Macarty’s possession, or that of his successors, and is produced by them.—Admitting that, we can discover from it, that Macarty owned a quantity of land in the Attakapas, and among others, the eighty arpens in front on each side of the bayou, now claimed, and that it appears by the accounts of Duclosange, the treasurer, Depositario, of the district, that he has always, siempre, paid the taxes, this certificate, given in 1803, while Deblanc, the commandant of the Attakapas, was accidentally in New-Orleans, cannot be accepted as evidence, that as early as 1782, twenty-one years before, Macarty was imposed for the tract in question, especially when it is in evidence, that Deblanc did not come to the Attakapas till 1796. We have here the certificate of a certificate—admitting all this to be correct, as the document has not been excepted to, we are of opinion, that the word always, siempre, although general enough, is too indefinite, and insufficient to show what must strictly and precisely be proven, an imposition for taxes as early as the beginning of the year 1782.

Payment of taxes is spoken of by Decuir and other witnesses. Admitting that such payment was made, without taking a receipt, and therefore is susceptible of being proven by parol, the precise time is not shown. Decuir says he paid, at divers times, at Macarty’s request—none of the other witnesses show any precise time of payment.

We conclude, that the possession of the locus in quo by Macarty, if shown, is not traced so far back as the beginning of the year 1782—and that therefore a possession of thirty years, before the beginning of the year 1812, is not proven.

II. Madam Lesassier’s deed being of the 12th May, 1804, admitting it to be a just title, the possession under it had lasted about eight years only, when it was disturbed by the defendants’ entry, in 1812.

III. Strong presumptive evidence that the title under which the defendants claim, was surrendered is said to be discoverable in their deed. They purchased not the land itself, but their vendor's right thereto—the price is the fourth part of the value of the land—it is not payable till the title be confirmed by a decree, or the heirs of Macarty’s claim be abandoned—the deed is to be void if a deed from their vendor’s ancestor to Macarty makes its appearance—no payment of taxes is shown—no occupation of the land appears from 1777 to 1812—there has been a silence of 36 years.

1. A right or claim may fairly be the object of a sale. Pothier, Vente, 550.

2. We have no evidence of the value of the locus in quo at the time of the sale: but we are shown that the plaintiffs’ ancestor purchased the whole tract which they claim, on the 5th of June, 1809, for $20,000. This appears by the deed of sale. The defendants purchased the locus in quo, containing the eighth part of the tract, for $3,500, Jan. 6, 1813, thirty-one months after. According to the price paid for the whole tract, the locus in quo being the eighth part of it, was worth $2,500, in 1809. Now, without any other evidence, we cannot presume fraud, or that it was purchased below its value, when about three years and a half after, $3,500 were given for it.

3. While, as the plaintiffs’ counsel strenuously contends, the general understanding of the neighbourhood was, that the locus in quo, the premises sold, made part of a tract owned by Macarty, we cannot consider the precaution taken by the vendees, that the stipulated price, which appears to be the fair and full value of the land, should not be paid, till it appeared that those, who were to receive it, had power to transfer the land. The vendors had a complete patent—it is annexed to the record. Their title, therefore, was indisputable, unless a person appeared to have gained it by possession, or they or their ancestors had done some act to defeat it. Yet, the plaintiffs claimed the land, under a deed from Macarty’s heirs. Macarty’s claim was the only one to be guarded against: as it did not arise by possession, it must do so by title. This title could only be a deed from Hebert Surely nimia precautio fraus; but it was not an extraordinary precaution to guard against the appearance in evidence of a deed from Hebert to Macarty.

4. Hebert and his heirs had a complete patent, since the year 1777—it had been confirmed by the commissioners of the United States on the 27th of August, 1811. According to the statement, the defendants, who certainly did not claim the land under Macarty, as the plaintiffs, entered on it in 1812, and settled opposite the spot on the other side of the bayou, on which the plaintiffs had their settlement, undisturbed and unopposed by them. The presumption is strong, as they did not claim title, they entered under the heirs of Hebert, whose title they purchased on the 26th of January, 1813, and remained undisturbed till the 15th of October, 1815.—Now, if notwithstanding this, the absence of any evidence of any other actual occupation renders their title suspicious, may not equal suspicion be attached to the plaintiffs' title, who never to this day, by themselves or their predecessors, had any actual occupation? After producing the original grant, proving the descent of the estate to their vendors, their deed and the possession of the defendants, was there any necessity that they should prove that those under whom they claim had been charged with the taxes of the district?

We really see no reason to presume a surrender of title. Violent, indeed, must be the presumption, which would induce us to do so, against a possessor with a complete chain of titles.

IV. The right purchased by the defendants is said to be a litigious one, although no suit was ever instituted for the recovery of the premises.

In the case of Morgan vs. Livingston & al. 6 Martin, the defendants resisted the plaintiff’s claim, on the ground that he had purchased a litigious right, having purchased from P. Bailly, a lot on the batture, which was at the time of the purchase, claimed by the defendants, who were in possession of it. This court decided the vendor's was not a litigious right. Yet, in few cases could it be more obvious, that the defendants would not give up their possession without some legal struggle. We cited no authority, being of opinion that the expressions of the statute were too plain to admit of a doubt.

We are not left to ascertain the meaning of the expression litigious right, by a reference either to the opinions of commentators or the decissions of courts. The law itself has expressly given us its meaning: “ A right is said to be litigious whenever there exists a suit, and contestation on the same.” Code Civ. 361, art. 131.

It seems that a suit brought does not alone suffice—that it is not enough that there should be a petition, that a copy of it and a citation should be served on the defendant—it is necessary there should be an answer—perhaps any plea will not suffice. In the words of the statute, there must be a contestation. Now, if the advancement and progress of the suit to the contestation be essential, how can it be held that the inception of the suit is unnecessary ?

If authorities be wanted on so plain a point, we refer the student to the commentary of Gregorio Lopez, on the Part. 3, 7, 13, who observes that it had been doubted whether the thing be litigious, before the service of the petition, and he concludes that it is not so—that it was not before the partida, and it has introduced no change. Febrero de escr. ch. 7, n. 9.

It was so in Rome. Litigiosa res est de cujus dominii causa movetur inter possessorem et petitorem, judiciaria conventione, vel principi precibus oblatis et judici insiuatis et per eum futuro reo cognitis. C. 8, 37, 1. Auth. Litigiosa, Nov. 112, c. 1.

The French text of our code civil is a literal copy of the art. 1700 of the code Napoleon, and in the case of Delaunai vs. Delanci, the court of appeals, in affirming the judgment of the tribunal of Rouen, observed that it was improper to confound a thing liable to litigation, with a litigious one. 11 Jur. Code Civil, 451. When the thing ceded is not contested, and is not the subject of a suit, at the time of the cession, the thing is not litigious. 13 Id. 49. 13 Pand. Fr. n. 119.

We conclude, that, as there was no suit instituted in the present case, at the time the defendants purchased the right of Hebert’s heirs, they did not purchase a litigious one.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for the defendants, with costs of suit in both courts.

***There was no case determined in October or November.  