On Application nor Rehearing.
Watkins, J.Alleging themselves to be the sole surviving descendants of J. B. Bouleries, their grandfather, the plaintiffs institute this action against his surviving widow of an alleged second marriage, and one of her transferees, for the recovery of their said ancestors’ one-half interest in certain real estate, which was acquired during said second marriage.
Plaintiffs’ contention is, that very many years ago, their grandfather was married to Adelé Ohacata, and, that of this marriage their parents, Delphine and Levy Bouleries were the sole surviving issue.
The answer of the defendants is a general denial, coupled with the special averment that the plaintiffs are not heirs of J. B. Bouleries, and that the property in dispute was, and is, not community, but belongs to his widow’s separate paraphernal estate.
Our opinion holds with the defendant’s theory on both of these propositions.
It declares substantially that there is in the record no proof of such a marriage, or even that the said parties ever declared that they were or ever had been married. That no one was ever heard to say that he had witnessed the celebration of a marriage between them. That the plaintiffs appear to have made no search in the records of any church or public office of the vicinity of where said parties lived for written or record proof of such a marriage.
It then announces as a proposition of law, that “ the mere fact that the parties lived publicly as man and wife for a length of time, and treated their issue as though they were born in lawful wedlock, is insufficient, under the circumstances surrounding this case,, to raise the presumption claimed.”
It then states as an additional fact worthy of note,, that the proof abundantly discloses, and that it is conceded by defendants to be a fact, that there was a filiation between said parties for many years; but it announces as a legal proposition, that even if the plaintiffs’ ancestor had duly acknowledged their father and. mother as his *951natural children in the form prescribed by law, this acknowledgment would not have conferred upon the plaintiffs, as their children, the-rights and privileges of revendication of property which the law accords forced heirs in case their legitime had been trenched upon.
Our opinion then states, as a fact — and this proposition is to be taken alternatively — that it appears from the defendant’s titles that she purchased the property in her own paraphernal right, with the concurrence of her husband, J. B. Bouleries, who joined his wife therein, and that plaintiffs have no standing in court as forced heirs or creditors would to attack them.
The objections urged in plaintiffs’ and appellee’s application, to our opinion are: (1) That the defendant’s answer does not fairly raise the question of the legitimacy of their parentage, that the maintenance of that proposition was and is a surprise to them, and that our judgment and decree should have been one of non-suit, only; (2) that the defendant’s deeds contain no recital disclosing the paraphernal; character of the acquisition; (3) that the proof introduced aliunde was insufficient to establish that fact which is essential to maintain.. defendant’s title.
(а) As plaintiffs’ title was alleged to be one by inheritance, and the - answer denied their heirship, definite proof was absolutely required, of plaintiffs’ legitimate heirship to entitle them to recover from a . stranger; and, in thus instituting suit, they incurred this risk, and, the burden of making such proof.
We can not understand in what manner they were taken by surprise ; but if the interpretation placed by the District Judge upon-, defendant’s answer caused them surprise, the proper course would, have been for their counsel to have then stated the grounds of surprise, demanded a continuance, and reserved a bill of exceptions to-, the judge’s declination, if refused. On such a showing we could have given plaintiff relief from any error the judge below might have committed.
We are of opinion that the defendants are fully entitled to the judgment pronounced.
(б) Our opinion does not hold that defendant, Therese Bouleries, is-. the owner, in her individual paraphernal right, of the property in controversy, but that plaintiffs have no standing in court as legitimate grandchildren of J. B. Bouleries to have-the titles interpreted and the property declared community property. That even if the. *952proof had disclosed the fact that their grandfather had duly and in proper form of law acknowledged the issue of his filiation with Adelé Ghacata as his natural children, that such acknowledgment would not have conferred upon such issue the rights and privileges of forced heirs of their grandfather, and heneé their position would ■not have been improved. *
Now, it is worthy of note that this proposition is hypothetically stated, and not as one that is substantiated by proof.
A reéxamination of the record fails to satisfy our minds of the correctness of the allegations of the application. We are unable to find any proof of marriage, or acknowledgment either. Really, the application does not contend that there is any such evidence in the record. Reduced to a last analysis, the ingenious argument is, that as the judgment should have been one of non-suit, therefore the legitimacy of the plaintiffs is an undetermined question, and therefore they have the status of forced heirs, and the corresponding rights of forced heirs to revendicate the property.
It does not avail the plaintiff to invoke the ruling in Bennett vs. Cignori, 41 An. 1145, in which a non-suit was rendered. The court did so because the plaintiff there had failed to introduce evidence which was within his reach; but it is not pretended in the present instance that any proof exists. It is claimed, on the contrary, that all the evidence of which the ease was susceptible was introduced. The plaintiffs have no right to keep perpetually a sword hanging over defendant’s head by the reserve of a right to eternal litigation. Interest sei publiese at sit finis litium.
Having maintained the finality of the judgment,' their argument is •fully answered and the correctness of the opinion established.
Rehearing refused.