
    No. 10,476.
    E. W. Huntington vs. Jacques Bordeaux. Pascal Lestelle, Warrantor.
    The Supreme Court has jurisdiction over a controversy between a defendant, calling liis vendor in warranty, in a petitory action, when defendant avers in his answer that the property from which plaintiff seeks to evict him, is worth more than $2000, and ho asks judgment eventually against his warrantor for that sum.
    A judgment rendered, declaring a surety good and solvent and allowing an appellant to furnish a new bond, can not bo reviewed on a motion made in the appellate court to dismiss the appeal taken from the judgment on the merits of the controversy.
    Such first judgment remains undisturbed until reversed on appeal therefrom.
    A sheriff’s adjudication of real estate must be recorded in the conveyance oilier in order to bind third parties.
    A transfer of the property thus adjudicated by the defendant to a party, not notified of the adjudication by such registry, conveys the property to the purchaser. .
    
      A plaintiff in a petitory action against one in possession can recover only on tlie strength of his title and not on the weakness of that of his adversary.
    APPEAL from the Oivil District Court, Parish of Orleans. J.
    
    
      Octave Morel and Horace L. Dufour for Plaintiff and Appellee.
    
      J. H. Ferguson and A. Brieugne contra.
    
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The plaintiff moves the dismissal of this appeal on the following grounds, viz:

1. The value of the property in dispute is less than $2000 and this-court has no jurisdiction ratione materise.

2. The bond furnished originally in tb£ court a gua was insufficient - for a suspensive appeal, and said court was without power to allow a new bond.

I.

The action is petitory in. character. The petition states the value of the property to be $1200; but the answer sets it at $2500.'

After asserting the validity of the title, the defendant called in his vendor in warranty, asking a judgment against him eventually, for $2500.

By its judgment, the lower court evicted defendant and condemned the warrantor to pay $1200.

The defendant did not appeal, but the warrantor has. The effect of such appeal, as far as the plaintiff is concerned, need not be considered presently, except to note that the plaintiff has an interest'at stake, and therefore to seek the dismissal.

The matter at issue between the defendant and the warrantor, appellant, on which the lower court passed, and which comes up by the appeal, is the amount claimed from the warrantor, namely, $2500.

By the pleadings between the defendant and the warrantor, the case was made appealable, and the judgment in the issue between them could have been appealed from by either or both.

The value of the property claimed is no factor in the examination of the first ground of the motion to dismiss. It may acquire significance on the merits of the controversy; but only if it be true that the plaintiff has a good title to the revendicated property, for then ■ the defendant, being evicted, would be entitled to recover from his vendor at least for the value of the property paid to him.

It is evident that, as the pleadings stand, between the defendant and the warrantor, who is the appellant, this court could, circumstances justifying, render a judgment for the amount claimed by the former, on his call in warranty, from the latter, viz-: $2500.

The first ground is therefore untenable.

II.

Having jurisdiction over the matter in dispute, this court has authority to inquire into the merits of the second ground, relied on for the dismissal of the appeal, which relates to the insufficiency of the bond furnished originally, and to the lack of power in the judge to .allow another one to be given in place.

The record shows that the plaintiff and the defendant have, in a joint motion in the court a qua, moved to dismiss the appeal granted, on the grounds of the insufficiency of the surety and bond, contending that the original surety being insufficient in amount, the court had no authority to allow the warrantor and appellant to furnish another.

The District Court held that the surety was good, and that it had •authority to act as it did.

No appeal has been taken from that judgment.

Its correctness can not be tested by the motion to dismiss made in .this court, and now under consideration.

It will remain undisturbed until reversed on appeal.

The motion is denied.

On the Merits.

Bermudez, C. J.

This is a petitory action against one in possession.

The plaintiff claims title through a sheriff’s adjudication, to a seizing creditor, to whose rights he was subrogated.

He charges that the defendant claims title from one who acquired .the property at a tax sale; but that this sale is an absolute nullity, for several reasons, one of which is, the insufficiency of the description of the property.

The defendant denies, avers a good title in himself, but calls his vendor in warranty.

The latter upholds the validity of his title, not only under the tax deeds made to him by the collector, but under a transfer of rights to him, by the owners of the property in the tax deeds.

There was judgment for plaintiff, evicting defendant, condemning the warrantor to reimburse the purchase price received by him and reserving certain rights.

This judgment is brought up for review.

The only evidence adduced by plaintiff to show title, consists in the sheriff’s return, which establishes adjudication to his author; but there is no proof whatever that any instrument of writing, not even a proces verbal, was recorded in the conveyance office, so as to notify third person that the defendant in the case had been expropriated and that his title had passed to the adjudicatee.

It appears that, subsequently, the same property was seized and advertised by the tax collector, for back taxes, and that it was by him adjudicated to the warrantor. Two deeds, duly recorded, were delivered, containing a description of the property. Four lots were described in one deed and ten in another, all in the same square.

In each act, the delinquent parties, wife and husband, in whose name the title stood, intervened and, for a valuable consideration, ratified the sale, transferring all their rights to the adjudicatee.

The alleged insufficiency of the description of the property in the advertisements of the tax collector, and in the deeds executed by him, is no factor in the case. The property claimed by the plaintiff is admitted by him, by this very suit, to be that in defendant’s possession, and adjudicated at the tax sale to the warrantor, for he seeks the former’s eviction from it, and the defendant and the warrantor admit the identity, insisting on their titles to the same.

' Pretermitting the question of the nullity charged of the assessment of the lots, in the proceedings and in the adjudication, the stubborn fact remains that the property, by its undisputed owners, was transferred to the warrantor and by him to the defendant, who has since been in possession of it.

The only question in the case is whether, at the time of the transfer, the purchaser had notice of the expropriation by the sheriff’s adjudication.

It is clear he had none, for the plain reason that nothing had previously been put on record on the conveyance books to show that expropriation and adjudication.

The law distinctly provides that, in the City of New Orleans, it shall be the duty of the sheriffs to cause to be recorded in the conveyance office all judicial sales of real property made by them (C. P. 697, R. O. C. 2265), and that all sales not recorded shall be utterly null and void, except between the parties thereto, registry to affect third persons only from-the time of recording. R. C. C. 2266; 14 An. 117, 416; 22 An. 114.

It is well settled that; in an action in revendication of real estate in possession of another, the plaintiff must recover on the strength of his own title and not on the weakness of that of his adversary. C. P. 44.

It is therefore ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that there be judgment rejecting the demand of plaintiff and quieting the defendant and warrantor; plaintiff and appellee to pay costs in both courts.  