Massey v. Herman

By the court :* Emms, C. J. This suit involves the question of the ownership of a square of ground in the rear of the former suburb St. Mary, between Gravier and Common streets. It was adjudged to belong to the plaintiff, and the defendants have taken this appeal. The defendants are in possession. There is nothing in the character of the possession, as claimed on either side, which affects materially the title. The title to the property, as it is exhibited by the documentary evidence, is alone to bo considered. The defendants being in possession, the plaintiff’s title must first be examined. The statement of the facts given by the learned judge of the Fifth District Court of New Orleans, is offered as the basis of the argument of the counsel for the plaintiff; its correctness is, therefore, conceded by the plaintiff. My impression was, from the first moment I cast my eyes upon the map, which is considered as establishing the location of the square in favor of the plaintiff’s right, that it was conclusive against him on tho statement of the facts on which he relies. With the plans before us, scarcely any explanation would be necessary to prevent my view of the subject. I may not be successful, however, in putting it on paper without that assistance. The square of ground claimed by 1,he plaintiff, and in the possession of the defendants, is between Common street and Gravier street, and bounded by Adeline street on the east, or towards the rivor, and Jeanne street on the west. At the time the rights of these parties originated, it formed part of a large body of land in the rear of the suburb St. Mary, and was an unimproved marshy waste. The titles of both parties originated in a sheriff's sale, made under an execution, against John Gravier, in 1825. At this sale, Howard [353] Henderson, under whom the plaintiff claims, purchased a square of ground under this description: a square of ground, containing fourteen lots, situated in the suburb St. Mary, and designated on a plan, made by Gravier, by number 9. At the same sale, Lewis Herman, the ancestor of the defendants, under whom they claim, purchased a square of ground, containing fourteen lots, situated in the suburb St. Mary, and designated on a plan, made by John Gravier, as number 5. In this plan, square number 5 is described as bounded by Common, Gravier, Adeline, and Jeanne streets; number 9, as bounded by Common, Gravier, Adeline, and Magdalen streets; and number 9, is marked as situated to the east of number 5, and on the opposite side of Adeline street, which intervenes. This plan, which is the commencement of title of both parties, it does not appear, ever was located; it existed on paper, merely having the sanction of Gravier, for the purpose of effecting the sale of the land in squai'es. It was handed by Gravier to the sheriff, previous to the sale, and deposited in the sheriff’s office. By the purchase, at sheriff’s sale, it appears, that Henderson’s square called for a location between Adeline street and Magdalen street, and Herman’s square, for a location between the former and Jeanne street; Adeline street intervening between the two squares, and each having a part on it. There was no location under the plan of Gravier, and, it is contended by the plaintiff’s counsel, that there could have been none. Be it so ; although I concur with my brother Preston, in thinking that, as far as the location of the part of these squares is concerned, the possibility of the location, under that plan, is a matter of absolute demonstration. When the purchasers of the squares on Common street attempted to take possession, they discovered that Gravier had made a mistake, and that one of the squares, nearer the river, had been already sold to Mr. Frerel, and, consequently, the purchaser, Bates, had no right whatever to any of the land sold, he having bid for what was the property of Mr. Freret, and not of Gravier, the debtor in execution. Bringier’s plan was then made. A square was added, in the rear, to the lots on Common street, and, for the purpose of letting in Bates, and giving him a square, the purchasers in the rear of it, were each crowded back one square. Under this arrangement and location, the purchaser of the square between Adeline and Magdalen streets, seeks to oust the purchaser of the square between Adeline and Jeanne street. This plan of Bringier was afterwards ratified by the heirs of Gravier, and has been recognized by the municipal authority, and the defendant is in possession of the square between Adeline street and Jeanne, as designated in that plan. The numbers of the lots on this plan are changed ; that in the possession of the defendants being numbered 9, and bearing the name of Henderson marked upon it, while the number and name of the defendant’s are transferred to the square on the other side of Jeanne street. It is very clear, that this change in the number and name amounts to nothing. The plan, so far as the heirs of Gravier were concerned, was one of location exclusively, and not of ownership. It purported nothing else ; indeed, they had no right to determine, in the slightest degree, any matter of right touching the ownership, among the general purchasers, at the sheriff’s sale. When it is con [354] sidered that the defendant’s ancestor never was a party to this plan of Bringár, or the arrangements in virtue of which it was made, he cannot he held bound by it, as affecting his rights acquired under the sheriff’s sale. Let him be held to it as a location, and it gives to him the square, which he has got under the description of location, which his title called for. But, to return to the plaintiff’s title. If we give the plaintiff the square in dispute, the location defeats the calls of his title. He is not then bounded by Magdalen street, on the side next the river, but by Adeline street, and is not bounded on the other side by Adeline street, but by Jeanne street. The defendants, too, who hold the square, with the servitudes of way, of light, and of drain, on Adeline and Jeanne streets, according to the calls of their title, are transferred to another square, which they repudiate, and some one else owns. The parties in this business have undertaken to make room for a purchaser who never had any title, by displacing the several purchasers of the squares on Common street. I have not been able to discover any act of the defendants, or their ancestor, which binds them to this arrangement, and, consequently, I think the plaintiff cannot recover. The judgment of the district court is therefore reversed, and judgment rendered for defendants, with costs in both courts. Rost, J. I concur in this opinion. Footnotes [*] SUMI, J-, declined to sit in this case.