ON REHEARING.
ODOM, J.The facts in this case were stated in our former opinion.
Defendant, in answer, sets up in substance, at least, that there is an error in the description of the land sold to plaintiff; that while the description in the deed from Lewis to Dorkins conveys the Southeast quarter of Northwest quarter of Section 71, this description is erroneous, as it was the intention of Lewis to jsell and of Dorkins to purchase only so much of the Southeast quarter of Northwest, quarter of said Section as extended to an east and west line running through a certain telegraph pole, and that, therefore, the plaintiff does not own the land he claims to own and has no right to have a boundary fixed according to an erroneous description.
On the trial of the case the defendant offered to show by parol testimony that plaintiff’s deed contain an erroneous description. Evidence to prove this wrong description was admitted over plaintiff’s objection. The lower court held and we hold that parol evidence is admissible to prove a wrong description in a deed.
In the case of Fleming & Baldwin vs. Watson, 26 La. Ann. 547, the court said:
“It was further objected that parol evidence should not have been received to prove an error in the description of the lands sold to Fleming & Baldwin. If that be true, it would be unfortunate indeed, for there could hardly be any other mode to prove a wrong description.”
“This is not an attempt to prove by parol a sale of immovable property, nor to contradict a valid existing instrument, but to show that by accident or negligence the instrument in question has not been made the actual depository of the intention and meaning of the contracting parties. Ex necessitate rei, parol evidence should be received. It is on this ground that testimony is let in to prove fraud in every kind of transaction. Cases of error are sometimes kindred to those of fraud and should be governed by the same rules. Is it not an actual fraud to claim an undue benefit and advantage from a mere mistake, contrary to the real intention of the parties to the contract?”
In Planque vs. Guesnon, 15 La. 311, it was held that parol evidence was admissible to show that the description of a lot in a deed was made through error and that the lot actually sold was a different one from that described in the deed.
See: Sims vs. Jeter, 129 La. 266, 55 South. 877.
According to the pleadings in this case, the plaintiff, Dorkins, is claiming that which he knows he does not own, and to that except his attempt to perpetrate a fraud is fully set forth in defendant’s answer.
*298We think parol evidence was. admissible to show the error in the description in plaintiff’s deed under the circumstances of this case.
We do not hold that parol evidence is admissible to prove the sale of real estate but we hold that in this case it was admissible under the pleadings to show that there was error in the description in plaintiff’s deed and to show that he is now claiming land which in fact he does not own.
According to the pleadings and the evi dence,- Dorkins, the plaintiff, owned only so much of the Southwest quarter of the Northwest quarter of Section 71 as extends up to an east and west line running through! a certain telephone pole mentioned in the deeds.
■ According to the pleadings and according to the testimony for Dorkins to set up claim to any land north of said line is to perpetrate a fraud. The six acres of land between the south line of the NE% of NW% of Section 71 and the north boundary line of plaintiff’s land is owned by Lewis, who of course may make such settlement with Montgomery as he sees fit. Plaintiff and defendant are, therefore, not adjacent proprietors and plaintiff cannot maintain his action to establish boundary.
The judgment of the lower court rejecting plaintiff’s demand for the fixing and establishing of the boundary line and our former judgment affirming the same, we think, are correct.
We think, however, that it was error to hold that the defendant should pay plaintiff for the land in dispute for, in so holding, we held that defendant owned the land.
For the reasons assigned, it is now ordered, adjudged and decreed that the judgment of the district court rejecting plaintiff’s demand and dismissing -his suit, be affirmed, and that our former judgment affirming that judgment to that-extent be, and the same is hereby reinstated; and it is further ordered that, in all other respects, the judgment of the district court and our former judgment be set aside, except insofar as our former judgment reserved whatever rights plaintiff may have against his vendor, Lewis, for a deficiency in the quantity of the .land sold .
The cost of the proceedings in the lower court to be paid by plaintiff; the cost of the appeal to be paid by defendant.