On Rehearing
HAMITER, Justice.The pertinent facts of this case are well and clearly set forth in the opinion heretofore rendered, and they need not be restated.
On the original hearing all counsel argued orally and in their initial briefs only the issues arising out. of the plea of ten years’ prescription acquirendi causa. After the submission of the case counsel for defendants filed a supplemental brief in which they argued additionally the question of plaintiffs’ alleged judicial estoppel and an alternative defense, pleaded in the answer, that the patent from the State of Louisiana under which plaintiffs claim was null and void by reason of its having been issued in violation of a prohibitory law, namely Act No. 21 of 1886, LSA-RS 41:171 etseq.
In the opinion supporting our judgment in favor of plaintiffs we assigned reasons for overruling defendants’ pleas of prescription and estoppel, but we omitted to discuss the alternative defense belatedly argued here as aforestated.
Following the rendition of our judgment defense counsel timely filed a motion for a rehearing in which they urged that this court erred in overruling the pleas of prescription and estoppel and “in ignoring and refusing to discuss, and in effect rejecting, the alternative defense * *
Plaintiffs’ counsel also tendered a motion in which they requested a correction by amendment of the obvious clerical error contained in our decree respecting the damage award and, alternatively, they prayed for a rehearing so that such error might be corrected.
Primarily because of such error in the decree and of our omission to discuss in. the opinion the alternative defense we *904granted a rehearing. It was not restricted to those matters, however, since some of the members of the court desired further consideration of the pleas of prescription and estoppel. But after additional study of these pleas we are convinced of the correctness of our rulings thereon.
The acquisitive prescription, as heretofore shown, could not commence to run in favor of these defendants until the State of Louisiana ceased in 1941 its resistance to the rights of Mrs. Douglas under her warrant location and then divested itself of the record title to the property by the issuance of the patent. And, to reiterate, what was said in Douglas v. State, 208 La. 650, 23 So.2d 279, 283, applied solely to the rights between the parties, our observation there made, which these defendants (not parties to that cause) rely on, being that “ * * * when the plaintiff applied for the patent in 1919 and renewed the same in 1939/ her right thereto became perfect and complete and she thereby acquired a vested right to the property the same as if the patent had issued, entitling her to all revenues derived therefrom. * ‡ ijc »
The plea of judicial estoppel is grounded on the allegations made by Mrs. Douglas in Douglas v. State of Louisiana, supra, and also those by the plaintiffs in this case, to the effect that she acquired a vested right to the land when she applied formally to the State of Louisiana on February 19, 1919, to locate her warrant No. 170. Defendants have shown no prejudice or damage to them resulting from the allegations of the former suit and, consequently, these plaintiffs are not estopped thereby. Janney v. Calmes, 212 La. 756, 33 So.2d 510, and cases therein cited. The allegations of plaintiffs in the instant cause obviously were in keeping with the above mentioned observation of this court in its opinion in the former case which, as has been shown, merely declared the rights between the parties thereto. Under these circumstances estoppel cannot be successfully invoked.
This brings us to the alternative defense, first urged in this court through a supplemental brief filed after the submission of the case, which is that plaintiffs are without title, right and interest in the disputed land requisite to support their demands for damages in that the attempted location and entry by Mrs. Douglas, together with the patent issued by the State, was in.violation of the provisions of Act No. 21 of 1886 and, therefore, was illegal, null and void. In this connection counsel for defendants rely particularly on Section 1 of the statute which recites: “That no purchase or entry of any public lands belonging to the State of Louisiana shall be allowed, when previous thereto such lands have been possessed or improved or cultivated by any person holding or claiming adversely to the party seeking to purchase or enter the same; and such possessor or improver shall have the right of pre-emp*906tion and pre-entry of the lands so possessed, improved or cultivated, to be exercised either under the general laws of the State or under the provisions of this act, in accordance with rules and regulations adopted by the Register of the State Land Office and not inconsistent herewith.”
And, to quote from their mentioned supplemental brief, counsel show: “That the quarter section in question here was continually possessed, improved and cultivated since 1874 by defendants and their authors in title can hardly be seriously questioned on the record here made up. It was so being possessed, improved and cultivated by vendor of these defendants when the scrip was located in 1919 and by defendants themselves when the patent was issued in 1941.”
The district court, in passing upon such alternative defense, ruled that Act No. 21 of 1886 has no application to the facts of this case. We agree with the ruling. A careful reading of the statute in its entirety, including the title thereof, clearly discloses that the legislation was enacted exclusively for the benefit of an actual settler of not more than 160 acres of state lands, or his widow and heirs, while undertaking the improvement and cultivation of the property requisite to the perfection of a homestead entry or the consummation of a purchase thereof, it serving to protect his right of pre-emption as against any one claiming adversely during the course of the required possession period. The legislation, unquestionably, did not purpose to favor one who seeks to succeed through a sale or assignment to a possession previously held by his assignor. That this is true is particularly shown by the provisions of Section 2 of the statute reciting that “ * * * no portion of such quarter section shall be liable to entry or purchase except by the possessor or improver, or by those who after his death succeeded to his rights as widow or heirs, and not otherwise * * *.” (Italics ours.)
When Mrs. Douglas made formal application in 1919 to locate her warrant No. 170, which was an entry subsequently recognized by the State of Louisiana through the issuance of the patent, these defendants were not in possession of the land. At that time, according to the record, it was being possessed by the Security Trust Company under a deed dated December 18, 1915, from the Summit Lumber Company; and such organization held the land until a transfer was effected to the Summit Land Company on September 24, 1923. The possession of these defendants 'commenced on or about January 5, 1928, under a deed of that date executed by the mentioned Summit Land Company.
Since these defendants did not possess the land in 1919 when Mrs. Douglas filed her entry claim with the State of Louisiana, they are not entitled to the benefits of Act No. 21 of-1886,' under Our .interpretation of it; and such statute, therefore, is without application here.
*908As is shown in our opinion on the original hearing the value of the timber removed from .the land was $7562.50, and for this amount plaintiffs are entitled to judgment less the recited credit of $925. To this extent our decree must be corrected and amended.
For the reasons assigned our decree heretofore rendered is now amended as set forth above and, as thus amended, it is reinstated and made the final judgment of this court. The right is reserved to defendants to apply for another rehearing restricted to a' consideration of the alternative defense predicated on Act No. 21 of 1886.