On the Merits.
This is a suit by plaintiff to have himself decreed tire owner of the lots of ground and improvements thereon situated in the' First District of the city of New Orleans and numbered 23 and 24 in the square number 69.
He sets' out in his petition that he bought this property from Lawrence Fabacher, who had bought it from the State tax collector at a public sale, made by the tax collector on the 24th day of May, 1890, for the State taxes of 1889.'
He alleges that previous to the tax sale the property was owned by *582the late Henry Levy, who, dying, left Sarah Klein, his surviving widow in community, in possession up to the date of purchase by Lawrence Fabacher; that in the year 1891, Sarah Kein, for a valuable consideration, confirmed the title in favor of plaintiff which (he) plaintiff and appellant, Herman Levy, now claims. Plaintiff sets out in his petition that Henry Levy had, at the date of his death, issue of his marriage with Sarah Klein, two children, viz., Alex and Leon Levy, and that these children departed this life prior to the death of Sarah Klein. Plaintiff claims that he owns the property in question, both by acquisition of the title from Fabacher and the acquisition from Sarah Klein, before named. It appears that Alex Levy and Leon Levy departed this life subsequent to their father. It follows that they inherited the undivided half of the property subject to the usufruct of their mother, Sarah Klein, but they died prior to their mother. But plaintiff urges that the said Alex and Leon Levy, having departed this life prior to Sarah Kein, their mother, the grandchildren (to-wit, the children of Alex and Leon Levy) of Sarah Klein could inherit from her, viz., Sarah Klein, the undivided half of the property, and that they, in consequence, could not have inherited it from their late father, Henry Le^ry. The position of plaintiff on this point is that as these children inherited from their grandmother directly, they are bound by her ratification of plaintiff’s title, particularly as it is not shown that the ratification has aught to do with the legitime of these heirs.
Plaintiff pleads the tax title as forming one of the links in the chain of title.' The heirs of Leon Levy, who are the grandchildren of Sarah Kein, are Ella, wife of Isidore Rich, and Jennie, wife of Leopold Klein, and the heirs of Alex Levy, who are also grandchildren of Sarah Kein, Jacques and Moses Levy and Adeline Levy.
Plaintiff avers that he has become subrogated to the rights of Lawrence Fabacher, and that he and his author in title have paid taxes due prior to his becoming owner of the property to an amount of about fifteen hundred dollars.
The action is for slander of title. The defendants claimed ownership and thereby became plaintiffs in a petitory action. The onus of proof is with them. They must sustain whatever strength there is in their own title.
He (plaintiff) charges that at the time of the purchase by Lawrence Fabacher, these heirs (who are plaintiffs in reconvention) were sui juris, and aware of the fact of the purchase, and they were also aware *583of the fact that the purchasers were paying amounts of taxes as heretofore stated as due on the property; that they were willing at the time that plaintiff should have entire and perfect title to the property.
Plaintiff further charges that these defendants have slandered his title and have, thereby, prevented him from selling the property, and on these and ¡other grounds he claims damages in the sum of twenty-five hundred dollars.
Plaintiff annexed interrogatories to his petition to be answered by these defendants. Defendants pleaded a general denial and, also, attacked the tax sale before mentioned, which Sarajhi Klein confirmed, on the ground that no assessment had been made of the property, no advertisement, and no demand of payment and on other grounds.
They (defendants) aver in this answer that this sale was made through the instrumentality of Herman Levy.to Lawrence Eabacher and from Eabacher to Herman Levy, and confirmed to lierman Levy by Sarah Klein, his grandmother, in her interest for her benefit and for the benefit of the children and heirs of Henry Levy, Alex Levy and Leon Levy. They seek to recover interest they allege they have in tire property and ask that- plaintiff be ordered to account for the receipts and disbursements on said property.
The. interrogatories propounded by plaintiff to defendants were answered. • Motion was made to strike out the answers to interrogatories on facts and articles on the ground that they were improperly answered, not categorically, and attempted to inject into the answers things that do not belong to the case. The motion w.as granted in part and rejected as to the remainder of the answers.
There was also a motion made to compel the defendants to elect between two antagonistic and inconsistent positions, in that defendants in their answers set forth the invalidity of the tax sale in question, and they also set forth that, plaintiff who invokes this tax title, bought the property for the use, benefit, and advantage of the grandmother of the defendants; that the latter plea affirms the validity of the title, while the former denies it, and the two are inconsistent. The District Court declined to compel the defendants to elect as to their pleas.
Roth pleas being before us for decision, we take up the first. The lax deed under which plaintiff holds contains the recital that the formalities required in order to convey title- at tax' sale have all been complied with. Defendants have not sought to prove any of the irregularities and *584illegalities charged in their answer. The onus of proof was with the defendants by whom the tax deed had been attacked. The tax sale has a validity upon its face which must retain full, legal effect until it is shown that the declarations in the deed are not correct. The sale was made in 1890 and duly inscribed in the proper office. No question but that the taxes for which the property sold were due. Upon this branch of the case it only remains for us to affirm the judgment.
But defendants raise another issue which, in our view, goes far toward affirming the validity of the tax sale they attacked in this suit. They allege and contend that the property was purchased at tax sale for account of their grandmother (Sarah Klein).
They have failed to sustain their averment that the property was not that of the plaintiff, but of their grandmother. In their answer to the interrogatories propounded to them by plaintiff, and to wihich we have before referred, they sought to prove and sustain their defense by injecting testimony not called for by the interrogatories. This was excluded by ruling of the lower court, to which ruling we do not infer that objection is now urged. Defendants afterward, in the trial, sought to sustain their plea against the title of plaintiff by offering to examine other witnesses to prove by parol that plaintiff is not the owner, and that the deed under which he holds is a simulation. The defendants are not claiming as creditors, nor are they third persons. They are heirs who set up that the plaintiff is not entitled to the property. There is no question of legitime as issue. They are therefore bound by the action of their grandmother, who ratified by deed the title which they attack. All the evidence offered was oral and inadmissible to set aside a deed which has been ratified by all concerned.
The attack of plaintiff in reconvention upon plaintiff Herman Levy’s title being based exclusively upon oral testimony, the rule of law which prevents persons inter partes, from attacking and setting aside their own deeds upon oral testimony, must be sustained. The defendants do not allege and show fraud and simulation; they are not forced heirs seeking to recover their legitime, nor creditors seeking to set aside a sale in fraud of their rights; all exceptions that do not apply to defendants’ case.
Defendants’ oral testimony could not be heard in order that they might substitute another title (oral) to plaintiff’s title.
*585Plaintiff, as a witness, testified in support of his deed. The attempt to impeach him as a witness and show that he held the title without consideration was not successful. No part of the testimony admitted' in evidence, or no part of that excluded, shows, or has a tendency to prove that the sale in question was without consideration, as contended by plaintiffs in reconvention.
’We do not think that the testimony sustains any demand for the damages claimed by the plaintiff. This demand was not pressed upon the court’s attention. Our examination iof the issues has resulted in convincing us that the issues as presented do not make out a ease for damages.
By .agreement of all the parties concerned, another suit was consolidated with this case. The judgment of the District Court rendered a separate judgment in the last mentioned case. We do not understand that defendants appeal from that judgment which was rendered in their favor.
For reasons assigned, it is ordered, adjudged, and decreed that the judgment decreeing plaintiff to be the owner of the property described therein and rejecting plaintiff’s demand for damages, be affirmed.