ON APPLICATION FOR REHEARING.
CARVER, J.Defendant’s able counsel apply for a rehearing, alleging various errors in our opinion. They file an ingenious brief in support of the application, most of which is merely a re-argument of matters fully covered in our original opinion, as to which we deem it unnecessary to add anything further. They particularly complain that we erred in misconstruing and refusing to follow the decision of the Supreme Court in the case of Fortner’s Heirs vs. Good Pine Lumber Co., 146 La. 11, 83 South. 319. They say that in that case Mrs. Ezell’s intervention was dismissed not as said by us because she changed the issues by claiming ownership but because she changed them by claiming possession; that therefore Norman’s intervention in this case should have been dismissed because he, too, claims possession and not ownership; that by allowing the Norman intervention we broadened the scope of Act 38 of 1908 which provides for confining the litigation to parties with recorded titles; and that we particularly erred in saying that one claiming title by thirty years’ prescription could be a party to a suit under that act.
What we said about one claiming title by thirty years’ prescription was said arguendo; was not necessary to a decision of the case, and if erroneous does not invalidate the conclusion arrived at.
However, we think the act available to anyone having a recorded title, even though his vendor held only by thirty years’ prescription.
It is true that in the Fortner ease Mrs. Ezell’s intervention was dismissed because she claimed to be in possession of the land, but the possession meant was possession at the time of filing the intervention and not possession at any previous time. The reason given for the dismissal on account of possession was that such possession brought Mrs. Ezell’s case within the principles of the petitory or possessory action, the court holding that Act 38 of 1908 was available only to and against parties then out of possession.
The Fortner case would be in point if Norman had come into the suit claiming to own the lands himself and alleging that he .was then in possession of them; but he does not do that; he intervenes to maintain the title conveyed to plaintiff with warranty and does not allege ownership in himself or present possession either in himself or in plaintiff.
There is nothing in the Fortner case or in the act which either gives or denies to a third person not claiming present' possession the right to intervene if he has an interest in doing so; but such right is clearly given by Articles 389 and 390 of the Code of Practice which reads as follows:
“An intervention or interpleader is a demand by which a third person requires to be permitted to become -a party in a suit between other persons, by joining the plaintiff in claiming the same ' thing, or something connected with it, or by uniting with the defendant in resisting the claims of the plaintiff, or, where his interest requires it, by opposing both.”
“In order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit, or in interest opposed to both.”
Counsel also contend that Act 38 of 1908 limiting suits under it to parties out of possession eliminates all questions of possession and prescription and requires the *169court to decide cases brought under it on the respective merits of the recorded titles alone.
We cannot agree with this view. The act does not purport to do anything more than afford to claimants under recorded titles an opportunity to test their respective claims when at the time of the suit the land is not in the actual possession of either party. It relates only to procedure and not to substantive rights, which rights are governed wholly by other laws. Amongst these laws are those relating to prescription and the possession necessary to support it. The possession mentioned in the act is possession at the time á suit is brought under it and not any previous possession which may have converted a poorer into a better title by prescription. The articles of the Civil Code treating of this possession and prescription in our opinion remain Wholly unaffected by Act 38 of 1908.
Counsel also ask us to re-examine the case of McHugh vs. Albert Hanson Lumber Co., 129 La. 680, 56 South. 636. We have done so but do not find anything in that case contrary to the view herein expressed.
Rehearing refused.