ON APPLICATION FOR REHEARING
CARVER, J.Plaintiff’s counsel earnestly urge that a rehearing should be granted herein. Many of the reasons advanced are the same as those disposed of in the opinion this day handed down in the case of Bodcaw Lumber Company of Louisiana vs. The Pardee Company. In that case the Bodcaw Lumber Company, vendor and warrantor, intervened to maintain its title. In this it is called in warranty, and the record does not show that plaintiff made any objection to the call in the lower court. On the trial, though, after plaintiff and defendant had both closed, the record shows as follows:
“The warrantors offer in evidence deed from E. B. Lassiter to Wm. Ricks, dated July 10, 1891, as recorded in Book ‘CC’, page 215, on October 21, 1891. Also offer in evidence.
“Objection. Counsel for plaintiff objects to all the testimony offered by the warrantor inasmuch as it affects the plaintiff as it is admitted by the defendant that no one is in possession of this property.”
“Ruling. Objection is referred to the effect of the evidence; evidence admitted subject to objection; objection and ruling made general.”
In this court plaintiff filed an exception that the warrantor had no cause of action or interest in the suit. In this pleading it alleged, in Article 1, that it had filed its suit alleging “that the property was wild land and in the possession of no one”; and, in Article 2, “that defendant answered admitting that the land was wild, vacant land, and in the possession of no one”.
*174What the petition really alleged was as follows:
“(5)
“Your petitioner further represents that the said property is wild land; that nobody has been in the actual, physical possession thereof, and that it is ■ therefore entitled to have judgment adjudicating it to be the owner, under provision of Act 38 of 1908.”
The answer of defendant admitted the allegations of Article 5.
I.
Plaintiff's exception in this court that the warrantor’s answer set forth no cause of action and that he had no interest in the suit is cleárly without merit.
As to a cause of action, he was not propounding any but was defending against the plaintiff’s demand. He had a clear interest in doing this, because if defendant’s title was not good he was obliged by his warranty to refund the price he had received.
Act 38 of 1908 does not either give or deny to a defendant the right to call his warrantor to defend the suit, but if he has not the right his effort to do so should be challenged in the lower court and it is too late to do so on appeal.
It is true that when the warrantor offered evidence the plaintiff objected, but he did not do so on the ground that the call in warranty was not permissible but solely on the ground that defendant had admitted that no one was in possession of the property.
II.
Plaintiff’s counsel also urge that we have erred in construing defendant’s admission as meaning only that no one is now in possession; that the words “has been” clearly relate to the past; and that what the allegation and admission really meant is that no one has ever been in possession; wherefore, no testimony of past possession was admissible.
■ Taking the most, technical view, there is certainly some difference between “has been” and “has ever been”, and plaintiff, in contending for “has ever been” is going somewhat beyond the allegation as made and admitted.
In construing pleadings, though, as well as contracts and laws, the niceties of grammar are not of controlling importance.
We are satisfied, for the reasons stated in .our original opinión, that defendant’s admission does not go to .the- extent claimed by plaintiff. Prom the objection to testimony above quoted that “it is admitted by the defendant that no one is in possession” and the allegations made in the pleadings filed by plaintiff in this court and above quoted, it would seem that plaintiff’s counsel then regarded the ■ allegation in Articled of the petition and defendant’s admission of its truth as amounting to what we have construed them to mean.
Counsel further urge that pleadings are to be construed most strongly against the pleader. This is probably correct, - as to pleadings where the language is selected by the pleader; hut if the doctrine were applied in this case it would destroy itself. The plaintiff made the allegation and under the doctrine the pleading would have to be taken most strongly against it. The defendant merely admitted it and if by reason of his admission we are to take the admission of the allegation most strongly against the admittor, we would be giving different meaning to the same words.
Counsel argue that as defendant has not shown any actual possession of the property for the ten years preceding the suit, Article 3444 of the Civil Code forbids indulgence of any presumption that it retains the intention to possess the property. They cite Albert Hanson Lumber Co. vs. *175Riggs Cypress Co., 130 La. 772, 58 South. 567, as follows:
“The deadening of some timber in 1898, which was never removed, seems to be the only act of real possession performed by the Hanson Company. The extent of this possession is not shown with any degree of certainty; and the intent to retain possession is not presumed, where one ‘has failed to exercise an actual possession for ten years’. C. C. 3444.”
This contention is disposed of by the ruling in the case of Miller vs. Albert Hanson Lumber Co., 134 La. 231, 63 South. 883, in which the court says:
“Counsel for defendant cites Article 3444 of the Civil Code, under the title ‘Of Possession’, to the effect that the possessor is supposed to retain always his intention to retain possession, unless a third person has usurped or taken from him the possession, or he has failed to exercise an actual possession for ten years. (Italics ours.) This last clause has no application to cases of possession in good faith, under color of title, where such possession was corporeal in the beginning. Such a case is governed by Article 3478, et seq., relative to the prescription of ten years.
“Even in the case of the prescription of thirty years, based on the corporeal possession of immovables, without title or good faith, it is provided that such possession may be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the property, as the keeping up of roads, and levees, the 'payment of taxes, and other simliar acts. In Leonard vs. Garrett, 128 La. 534, 54 South. 984, this court held that civil possession follows possession by occupancy until ousted by adverse actual possession. It follows that the last clause of Article 3444 is not applicable to possession under a just title, where it has been preserved by external and private signs as provided in Article 3501. The last clause of Article 3444- may find its application in cases where possessors, without color of title, have not preserved their possession as provided in Article 3501.
“The ease of Albert Hanson Lumber Co., 130 La. 772, 58 South. 567, was a possessory action, in which the plaintiff failed to show actual possession.”
Rehearing refused.