
    BLANC VS. DUPLESSIS, F. M. C.
    APrEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT, JUDGE WATTS PRESIDING.
    Parole evidence is ^admissible to prove a boundary line recognized by the parties, in support of a plea of prescription; with this limitation, it goes merely to prove a fact connected with the actual possession of the party.
    Where the grantee of a tract of land supposed to contain seventeen arpents, fronting on the Mississippi, sells the lower twelve arpents to two purchasers, (six arpents each,) with certain fixed boundaries, these will control the quantity in case of deficiency in the whole tract.
    So, where a party proves actual possession to certain and fixed boundaries, by making roads, levees, and the front fences, he will hold by prescription, to the extent of his boundary, against an older title.
    When two possessions lap, that which is most perfect, and best characterizes the right of property, is to be preferred ; that which is corporeal, and manifested by acts peaceable and notorious, will prevail over that which is merely intentional.
    This is a petitory action, in which the plaintiff alleges that, the defendant, who is an adjoining proprietor, has encroached on his land, and taken two arpents more than he is entitled to, according to their respective titles. He prays that this land be decreed to belong to him, and that the boundary between him and the defendant, be fixed and established, etc.
    The nature of the titles under which the parties claim, and all the material facts of the case, are fully stated in the opinion of the court.
    The defendant pleaded possession, and the prescription of ten years, under a just title, in good faith, etc., and set out his titles.
    On the trial of the case, the defendant offered to prove by parole testimony, that Charles and Cyprien Duplessis, (the latter is the defendant,) had fixed on a certain oak tree as a boundary between their respective lands, and for this purpose introduced witnesses to state what Cyprien Duplessis had told them in relation to the subject: also, what they had heard from other persons. To which testimony the plaintiff objected on the grounds: First, That the fixing of boundaries cannot be proved by parole testimony. Second, The testimony is inadmissible, being only hearsay of what the defendant himself and other persons had stated, on the subject of boundary between the land of plaintiff and dUfendant.
    The court admitted this evidence in a qualified manner. It stated that the declarations of the defendant were not considered in evidence, but that boundaries can only be fixed under the Code, by pursuing the forms prescribed; and a party pleading prescription, may prove by parole, a boundary line recognized by the parties, of lands within that boundary. The plaintiff took his bill of exceptions.
    The district judge gave judgment adversely to the plaintiff’s pretensions, but fixed the boundaries heretofore recognized by the parties, and the plaintiff appealed.
    
      Roselius, for plaintiff.
    Both parties claim the land in controversy, under titles derived from the same person ; as the appellants title is of an anterior date to that of the appellee, the former must take the whole extent of land conveyed to him, and the latter can only claim the residue.
    2. The judge, a quo, erred in deciding that the appellee had acquired the quantity of land which he claims by prescription. The action of partition cannot be prescribed against; Louisiana Code, articles 1227,1228. No separate and actual possession is shown in the appellee, to support the plea of prescription.
    
      Preston, contra.
    
   Rost, J.,

delivered the opinion of the court.

On the 11th January, 1810, the grantee of á tract of land supposed to contain seventeen arpents front, on the Mississippi river, sold the lower twelve arpents, to Sylvain and Charles Duplessis, in the manner stated in the following stipulation:

Parole dence is sibie to provea recognized luby the parties m support of a plea of prescription; tion' th|'t "goes afhot'connected with the actual part?esS.l0n°ftlie

he sieur Martin Duplessis déclare que les six arpens U partir de la borne d’un haul, en descendant, appartiennent et ont été rendu cl Charles Duplessis m. I., un des acquereurs: et les six arpens U partir de la borne d’enbas en montant, appartiennent If , et ont été rendus U Sylvain Duplessis, m. 1., autre acquereur, ce qui a été accepté par les deux acquereurs qui ont dit élre satisfaits.”

On the 16th of September, 1820, Cyprien Duplessis, the defendant, acquired the remaining five arpents. On the 20th of August, 1828, Charles Duplessis sold his land to John Austin, and the said land having been seized under execution as the property of the said Austin, on the 23d September, 1829, the plaintiff acquired, at sheriff’s sale, five arpents thereof, and the defendant purchased, at the same time, the remaining arpent.

The whole front of the original tract is only fourteen arpents, twenty-seven toises and three feet, instead of seventeen arpents, and the plaintiff alleges, that himself and Sylvain Duplessis being the first purchasers, are entitled to take the full quantity called for by their titles, and that the deficiency must fall on the portion held by the defendant.

The defendant answers, that he is the just owner and possessor of six arpents front, of land acquired by him as above stated, and that he, and those under whom he claims, have been in open, peaceable, and uninterrupted possession of-said land, in presence of the plaintiff and those under wh (ffiuh e, cl aims, for more than ten years before the institution of this^uie; and that if his title had ever been defective, iwli-ioji he ¡denies, the defect is cured by prescription. He further contends, that if there be any deficiency it must be the plaintiff, and that he is entitled to one sixth of A 9 the land sold at sheriff’s sale, which he prays may be adjudged to him. There was judgment in his favor in the X)ist.riCt Court, and the plaintiff appealed.

Our attention is first directed to a bill of exceptions taken by the plaintiff’s counsel to the opinion of the court, stated fo have admitted parole evidence to prove an agreement between Cyprien and Charles Duplessis, establishing a boundary between them. The court stated that the evidence was only admitted to prove a boundary line, recognized by the parties, in support of the plea of prescription; with that limitation, the testimony was clearly admissible, it went merely to prove a fact connected with the actual possession of the parties.

Where the Sfiand supposed tee^^'arpents" fronting on the Mississippi, sells the lower ^two píSa-sers> (sixavpents each,) with certain fixed boun-wm^óntronhe quantity in case of deficiency m the whole tract.

go wliere a i»'°ves_ac-tual possession, to certain and bounda-by making* leveesand fences, hoMj hold by-his

'^en ,two possessions lap, that which is besf character^ zes the right of property, is to be preferred; that which is corporeal, and manifested by acts peaceable and notorious, will prevail over that which is merely intentional.

We are satisfied by the wording of the sale from Martin Duplessis to Charles and Sylvain, that the land was sold under fixed boundaries; the lower boundary being that of the grant, and the upper, that from which Charles Duplessis was first to take his quantity. The words, Les six arpens U partie du la borne d’en haut en descendant, will admit no other . . 11 1 1 • 1 * interpretation, but that an upper boundary existed at the time, to the knowledge of the parties, and that the sale was made in reference to it. The parole evidence adduced by , , , 1 . tbe defendant, as well as the understanding of the parties, as shown by their acts since the date of their purchase, satisfies us that the live oak mentioned by the witnesses, was the boundary between them. If then the land conveyed to Charles and Sylvain Duplessis, was sold with fixed boundaries, those boundaries control the quantity, and Charles Duplessis and his successors, never had any right to the land claimed by the plaintiff. Had no upper boundary been fixed by the sale, the defendant has made out a clear case of ,J prescription to all the land he has possessed under the sale made to him in 1820, to the full extent of five aj/"' ^ The witnesses state that since he purchased, I ^ v the roads, levees, bridges and front fences, dcfevirto the live oak, and that his vendor did the same those witnesses who have lived with and worked for defendant, state that the defendant always w ~ up to that boundary, and that there was no d<Kj TO>betwe him and Charles Duplessis, or amongst the neighbors, cfnout the extent of their respective possessions. No evidence can be clearer or more satisfactory. Under these circumstances, the possession of the plaintiff, if it existed at all under his title, was merely intentional, and cannot avail him against ® that of the defendant. When two possessions lap3 that which is most perfect and best characterizes the right of property, is to be preferred; that which is corporeal and manifested by acts peaceable and notorious, will prevail over that which is merely intentional; the presumption being, that the will to possess ceases when it remains inactive and suffers an actual adverse possession. Troplong verbo Prescription, No. 245.

We are of opinion, that the plaintiff ought to take nothing by his action, and that under the 846th article of the Louisiana Code, the defendant is entitled to one-sixth of the land sold at sheriff s’ sale.

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