This is a petitory action. Defendant is in possession under a title derived from one whose possession is alleged to have begun more than thirty years before the bringing of this suit. •
As plaintiff must recover primarily on the strength of his own title, it is incumbent upon him to examine and pronounce upon his alleged muniment of title before going into the question of the prescription which defendant sets up in the alternative.
That muniment of title is an alleged tax sale and a’ judgment confirming the same against the former owners of the property.
The tax sale relied upon is more than three years old, and no other serious attack is made or could be made upon it than that it does not describe the property sufficiently to identify it.
The judgment confirming the tax sale describes the property perfectly, and was rendered contradictorily with a curator ad hoc apointed to represent the former owners who were absent and unknown.
*290Under the terms of' the Statute (Aet No. 101 of 1898) these were the only necessary parties to the suit for confirmation, and they were properly represented by a curator ad hoc (Clayton vs. Quaker Realty Co., 128 La., 103). As the delays for appeal, whether by parties or by third persons, have now expired, that judgment is no longer subject to attack for any error therein.
En passant, it may be said that it is not at all manifest that there was error in the judgment of confirmation, since under the ruling in Weber vs. Martinez, 123 La., 663, the tax rolls may serve to amplify the description in the tax deed, and the property sold is sufficiently identified if it appear that the assessment and sale were intended to cover the only property belonging to the tax debtor within the limits fixed by the description given in the rolls. But be this as it may, the record in the confirmation suit shows that the objection now raised by this defendant wás not only raised but urged repeatedly and strenuously by the curator ad hoc, and was repeatedly overruled. The error in the judgment, if any, could ■have been corrected only by timely appeal.
Hence as between plaintiff and the former' owners of the property, that judgment is now conclusive regardless of any error therein, and in the absence of fraud it establishes, beyond the possibility of re-examination, first that some property belonging to these parties was validly sold for taxes, and secondly that the property so sold is the same as that described in the judgment. Those were the two issues presented and passed upon.
That such a judgment, the force of which was to .'decree plaintiff' the owner ■ of the property involved, has all the effect of a conveyance between the parties, is too clear to require more than the mere statement itself. The old English lawyers (or rather their civilian preceptors, *291the clergy), saw this at once and took-speedy advantage of it. By their fines and common recoveries they evaded the statute of Mortmain, and barred the entails, remainders and reversions which encumbered landed estates. Thus title “by matter of record,’? that is by judgment of Court became a common as well as the most effectual mode of conveyance known to the English law. Blackftone Book 2, p. 357.
This is cited not as a precedent, but simply as showing that the legal mind (whether under the domain of the civil or the common law) clearly apprehends that the effect of such a judgment is to pass the title to the property from one litigant to the other.
Hence the alleged outstanding titles which defendant relies upon as a shield herein, have either been wiped out or merged into that of plaintiff.
That such a judgment may be attacked by a party thereto on the ground of fraud or nullity may be conced-' ed for the purposes-of this case; but whether it be open to such attack by one who was not a party thereto, is a matter we do not find it necessary to pass upon.
For the defendant in this case complains indeed of the judgment of confirmation, as having been obtained by fraud; but the only ground set up is the alleged variance between the description as set forth in the pleadings and judgment, and that given in the tax deeds and assessment rolls.
This of itself does not show fraud, but merely error. For the rest, the record in the confirmation suit shows that it was plaintiff himself who introduced all the evidence and laid it before the Court; that the alleged discrepancies were pointed out, and the Court’s attention .drawn thereto. All that can be and is now said as to the proof not corresponding with the allegations and not *292warranting the judgment, was said and insisted upon then. The Court may have erred, but if so, it was with eyes wide open and not because it was deceived or misled by plaintiff.
A judgment cannot be attacked for fraud where it is. shown that the successful party produced his whole evidence and laid it before the Court, and the attention of the Judge was particularly directed to those very matters which are afterwards set up as constituting the fraud alleged to have been practiced upon the Court
As to the prescription of thirty years relied upon by defendant we see no merit in it. One who claims property by prescription must show affirmatively and clearly the extent, nature and length of his possession. Defendant has failed to do so.
Its author was the New Orleans' Spanish Fort and Lake R. R. Co., who acquired from Vincent Micas, on June 7th, 1879, certain property adjoining, but not including, that here in controversy.
How soon after that date it took possession of any land beyond the bounds of its purchase; the limits to which that posesssion extended, and the nature thereof; the intent which it had in going upon the land; these are all matters not shown with that certainty required of one who seeks to be declared the owner of property by usucaption.
That a great part of the land in controversy was under-the waters of Lake Pontchartrain, and much of the rest a salt marsh until within the last few years seems certain. That some constructions were built on piles over the water, and others over public streets (or projected public streets) also appears; and there was a break-water intended only to secure the shore line against erosion by the waters of the lake.
*293There was also a fence, bnt its exact, or even approximate, location is not shown with any thing like certainty; nor is it shown what land it was intended to enclose or did enclose.
A former president of the railroad company testified that the company never pretended to claim ownership of any land beyond the limits of its purchase. Another official testified that the highland extended only a little distance from the railroad track; that a fence was put up to prevent persons from going on the track where they might be injured; that the railroad was in possession of its right of way as licensee of the city not as owner; that it expropriated no property and paid taxes only on track-age.
Only one witness attempts to fix some definite time as a starting point for prescription. He testified to a fence that stood on the land and seemed to mark the boundary thereof in the spring of 1880 (more than thirty years before this suit was filed), the remains of which were still standing in 1907, when it was tom down and a new fence put up to replace it.
But that fence is not shown on the survey made about that time, and is not remembered by others who were in a position to observe it so that it had either disappeared in time or was not in the position in which the witness first mentioned seems to think it was. But at any rate there is no such certainty about it as to serve as a basis for prescription, since one who relies on prescription holds title only “by inches.”
Moreover, this fence, wherever it was, was not removed and replaced by the Spanish Fort R. R. Co, bnt by another company, between whom and said Spanish Fort Company, ho privity of title or possession is shown. Inasmuch as the only possession of the land in controversy , which *294■file Spanish Fort Company had at that time, was a civil one which continued only by virtue of the remains of its ancient constructions, the destruction of these and the replacing thereof by a new construction' erected by a stranger to it, constituted a new possession and operated as a complete interruption to any prescription' that might have been running in its behalf.
April 1st, 1912. 1. A judgment confirming a tax title, rendered contradictorily with the former owners of the property, is1 binding on all the world. 2. A mere possessor, with prescription running in his-favor, but not completed, has no vested rights in the property, but only an inchoate, contingent, or expectant right to complete a title by prescription if not disturbed (12 Rob., 266-272).Defendant has not made out a title by prescription and plaintiff must therefore recover the land.
It is therefore ordered that the judgment appealed from be reversed and it is now ordered that plaintiff, ‘Willis J. Roussel, do have and recover of defendant, the Railways Realty Company, the property in controversy herein, and more particularly described in the petition on file and in the.judgment of confirmation rendered in the matter of Willis J. Roussel vs. John. Nixon, et al, No. 86,930 of the docket of the Civil District Court for the Parish of Orleans. The defendant and appellee to pay the costs of both’ Courts.
Dufour, J.,' takes no part.