(Merrick, C. J., dissenting.) This cause has formerly been before this court, upon a peremptory plea of res judicata interposed by the defendant and sustained by the District Court. We reversed the judgment, overruled the plea, and remanded the cause for a trial upon the merits. See 10th An., p. 193.
There has been a judgment against the defendant, and he, in his turn, has appea.led.
The' action is petitory ; its object is to recover a certain tract of land containing 240 arpents on the bayou Lafourche, in the parish of Assumption.
The defendant holds (through mesne conveyances) under a tax sale made by the State Treasurer in 1828, for taxes alleged to have been due by the plaintiff Dodeman. The land was described in the adjudication merely as “a certain tract or parcel of land situated in the parish of Assumption, measuring six ar-pents, more or less.”
In forced alienations of real property, it is essential that there should be a
Wo are of the opinion that the State Treasurer’s adjudication to Mooney (under whom the defendant claims) of “six arpents, more or less, in the parish of Assumption,” unaccompanied as it was by a delivery of possession, did not convey to Mooney a legal title to the specific 240 arpents claimed in this action.
And we'have heretofore decided that the monition law was not intended to cure such a substantial defect in the sale as this.
As the only title set up by the defendant is traced from Dodeman through the tax sale to Mooney, Dodeman must recover unless his title has been lawfully divested, or unless the defendant’s plea of the prescription of ten years is valid.
Upon the former point we have said enough. The latter requires a brief notice.
It does not appear that Mooney, who, it is pretended, bought this land at the tax sale aforesaid, ever went into possession of it.
In 1838, Mooney sold the tract now sued for to one High, reciting the sale for Dodeman's taxes as the origin of his own title. But it is not shown that High ever took possession.
About a month after his purchase, High sold the tract to the defendant Barrow ; but having no possession, either actual or civil, himself,’ he could transfer none to his vendee.
Barrow then was bound to prove a corporeal possession in himself as the starting point of his title by prescription.
The incidents of the possession under title, which will enable one to acquire an immovable by the prescription of ten years, are explicitly laid down in Article 3453 of the Louisiana Code; it must be a possession in fact and right as owner; it must be continuous and uninterrupted, peaceable, 'public and unequivocal. The incidents of possession to support the prescription of thirty years without title, are the same : the possession on which this long prescription is based, “ ought to have the other qualities which are necessary to the prescription of ten and twenty years, i. e. it must be continuous and uninterrupted during all that time; it must be public and unequivocal and under the title of owner.” C. C., 3466. And it is only when it has been “ commenced by the corporeal possession of the thing,” that the possession “ may be preserved by external and public signs announcing the possessor’s intention to preserve the possession of the thing, as the leeeping up of roads and levees, the payment of taxes, and other similar acts.” C. C., 3467.
The only indicia of a taking of possession by Barrow previous to 1844, which we find to be satisfactorily established by the evidence, are the two facts that in 1840 he sent hands to aid in stopping a crevasse in front of the tract in question, and that the next year, some of his negroes worked on a road and levee running over a part of it.
¥e think it would be contrary to the text and meaning of the Code, to declare these indicia sufficient to establish such an unequivocal -corporeal posses.
The defendant had other lands in the vicinage. He had then an obvious interest in stopping the crevasse and assisting to keep the road and levee in repair, and his doing so did not clearly indicate an intention to take possession of this piece of land as owner.
In 1844 or 1845, he did take unequivocal possession. The witnesses, without dissent, speak of that as the marked epoch when he began to use and cultivate the land. But prior to that time, we do not find that ho cut a tree or dug a ditch, or built any kind of structure, or planted upon this land, although from one fourth to one third of it had been cleared many years anterior to his purchase.
The plea of prescription does not appear to us to be tenable, as citation was served upon the defendant in August, 1851.
We find no sufficient evidence to prove that Barrow was in bad faith whilst reaping fruits and making improvements, before this suit was instituted, and he has a legal presumption in his favor.
Upon the subject of rent and improvements, there is the usual discrepancy in the evidence.
The District Judge, who saw and knew the witnesses, had a better opportunity to graduate the amounts which should be allowed to either party, and although both complain of his estimates, we are not prepared to say that they were erroneous or unjust.
The judgment is therefore affirmed, with costs.