Tear v. Williams

The judgment .of the-court was pronounced by Eustis, C. J. The plaintiffs claim one-third .-of a tract of land -situated -in .the parish of Rapides, on the Red river, below the town of Alexandria, as •the heirs of the late James Tear, of a part of which the defendants¡are in.pos•session. The plaintiffs tilléis founded on a requite and order of survey,.dated on the 23d of June, 1802, which wasreportedfor-confirmation .on the 30th December, 1815, in the names of John, James, -and Ignatius Tear, -.by,the board of commissioners .of claims for land for the western district of Louisiana. The report was approved by an act of Congress, on the 5th of February, 1825. See United States Statutes at Large, .vol. 4, p. 81. There is nothing which shows that the title thus created in James Tear, ever has been divested.by any .acton ,-his part,.or of Jtis heirs or representatives. The defendants rely on the -pre- ■ scription,-which they allege has accrued in their favor adversly,to the plaintiffs, by reason of the succession of their ancestor having been unaccepted and va.cant since his decease, which took place in 1813 or 1814. There-was judgment for the plaintiffs, and the defendants and the immediate warrantors, have appealed. The defendants hold under a sale from Gerard, and Francois Chretien, passed before the judge of the parish of Rapides, .and recorded in his office on the 24th December, 1<835. The act recites the .land sold to be the upper part of the tract granted by the Spanish government to John, James, and Ignatius Tear, as .located and laid down by a corrected .plat of survey filed in the land office. The acts by which the ChrUiens acquired title conveyed no interest whatever of James Tear, or his heirs, in the land; and as they were not recorded in this parish, and no act of possession is proved to have been exercised by-the purchasers, the acts can have no effect in relation to third persons, as transferring either title or possession. Tulane v. Levinson, ante p. 787. Carraby v. Desmarre, 7 Mart. N. S. 662. The defendants have no title to the one-third part of the land, which was vested in James Tern in his lifetime, and, by the confirmation of the title, in his children. Their title they were .not.obliged to record, as .it "emanated from the sovereign authority; but that of the defendants can only date from -its record on the 25th of December, 1834, from -which period alone their possession can be considered as commencing. This suit was instituted ,in 1837, and the defendants have no title by prescription as-pleaded by them. The judgment against the defendants is, therefore, .correct. There was judgment against the ChrUiens called in -warranty, for the proportion of the price of the land from which they were evicted by the judgment, $2,720, bear [870] ing-interest'from the date of the judgment, and for $300 for expenses 'in counsel! fees. As the appeal did not stay execution, the interest was properly allowed from the judgment. The allowance for the expenses necessarily incidental to ,the.suit, is, we.think, justified by article 2482 uf the Civil Code. .Judgment affirmed-