ON REHEARING
LECHE/ J-Plaintiffs allege in their petition ‘‘that they own certain property .which they -are .informed and believe that Henry Keller is asserting and claiming to •be his, • and that neither they nor Keller are in possession thereof. In argument they say that their action is based upon ;Act 38, p.- 38, of 1908. In our former opinion we treated the action as petitory .in character- and- remanded the case in •order to allow plaintiffs the opportunity ,Jo- make,- proper .parties defendant.
-' 'A rehearing was thereafter granted and the case was again argued and submitted to this court.
The Act of -1908 provides specially that it may be resorted to in order to establish title to property where two or more persons claim land by recorded title and where neither of the claimants is in possession of the land so claimed. Plaintiffs do not allege that defendant claims under a recorded title, an allegation which under the terms of the statute seems to be necessary. See City of Baltimore vs. Lutcher, 135 La. 878, 66 So. -253: But pretermitting this. formality for -the reason that defendant is, in point of fact, claiming under a recorded title, viz.:' a'tax deed, plaintiff does specially charge that, neither party is in possession, when in point of fact defendant openly appears to be one of those in possession, and we thereupon treated the action as being petitory and as requiring und.er the ar,tides, of the Code of Practicp that the' other ' possessors be also made parties defendant. ■ ....
Two of plaintiffs’ witnesses testify that the land in. contest is enclosed and forms part of what is known as Keller’s pasture. The action cannot, therefore, be treated as the ’ one provided for by the statute of 1908, because that action only lies where neither party is in possession. •
When the case was argued on rehearing, plaintiffs, assuming that their action was brought under" the Act of 1908, pleaded error in our former opinion because that act says that, suit may be brought against one or all of the adverse claimants, and it was therefore not necessary that all claimants be made- defendants. That would be true if the suit were really and technically under the Act of 1908, but such is not the'- casé here, because at least one of the claimants is inr possession.
*577In Davidson vs. McDonald, 126 La. 539, 52 So. 758, where plaintiff was in possession, it was held that the action under Act 38 of 1908 did not lie. See also McHugh vs. Albert Hanson Lumber Company, 129 La. 681, 56 So. 636. In this case we hold the converse of that proposition to be equally true, and, that where a defendant claimant is in possession, the action will not lie.
For these reasons our original judgment is reinstated and the case is remanded.