Gravier's Curator v. Rapp

Martin, J.,

delivered the opinion of the court.

The object of this suit is the recovery of a lot of ground, which it is alleged, the defendant possesses without title: *166she denied that the plaintiff had any, and averred title in herself, and pleaded prescription. She had a verdict and judgment, and the plaintiff appealed.

. "Where a party is surprised tor want of a knowledge of his adversary’s title, sed °h he tout'd have defeated, teis5 by affidavit, new'tNajdS f°1’a The affidavit of a party is admissible in evidence, to show the loss or destruction of his porting 'the cir-wh?chan°render the loss proba- So, where the toetrUOdweiiing house is shown by proof, the oath of the party as ^evidence*V to show that his ti-tie deeds were destroyed with lt- Payment of some of the in-stalments of the price ¡ occupa-mises te'nyearsj in the knowledge of the plaintiff; having and^buiiding1^! house thereon, iurmshes eir-cumstantial or proofof'o'wner-writtenVhtitiethis shown to he lost,

Our attention is first arrested by two bills of exception; the first is, to the refusal of the court to sustain the plaintiff’s motion for oyer of the defendant’s • title. The bill J does not contain any of the reasons on which oyer was . . . . , obtained or refused.

The plaintiff and appellant’s counsel has contended, that he was taken by surprise, and that had the defendant disclosed her title, he would have been able to gainsay it. If this was the case, the plaintiff could have been relieved by showing it on an affidavit, as a ground for a new ,. , tlAcli*

T{le second bill was to the admission of the defendant’s affidavit, of the destruction of her title by fire. This was opposed by the plaintiff’s counsel, on the ground, that the destl’°yed paper cannot be sufficiently described. • The judge admitted the affidavit, on a suggestion, that he did not consider the oath of the party, mentioned in the 2258 al'ti<de of the Civil Code, to apply to the contents of the written instrument, alleged to have been lost or destroyed, , . ¶ .. . . . . , , but to the loss or destruction, for the purpose, in the words art¡cle °f the Code, to support the circumstances which render the loss probable. *

It appears to us, that the affidavit was' properly admitted. The defendant showed the destruction of her house by fire, j(, js probable that a party keeps his title deeds in his own r , , . house ; but as they are by some deposited in bank or else» where, it is required of the party who shows the' destruct¡011 0f j^jg house, that he should establish by his oath, a , J 7 circumstance, which often cannot be established in any other manner, to wit: that the deeds were destroyed with (_J1e house>

On the merits, the defendant proved by witnesses the payment of two instalments of the price of the lot, for which ^le plaintiff gave his receipts; that she occupied it in the knowledge of the plaintiff for upwards of ten years, and *167built a house thereon. She showed that she had it surveyed by the city surveyor.

The plaintiff’s counsel has urged that the jury has given a verdict for a lot of thirty by one hundred and twenty feet, without any evidence of the dimensions of the lot sold by the plaintiff. It is very probable that the jury were determined by their knowledge of the ordinary size of lots, according to the plan of the city or faubourg.

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