Dowdell v. Orphans' Home Soc.

Citations

• 114 La. 49
• 38 So. 16
• 1905 La. LEXIS 413

Syllabus

<p>PETITORY ACTION — INJUNCTION — BURDEN OE PROOE- — PRESCRIPTION—POSSESSION —EVIDENCE.</p> <p>1.The action is petitory. Plaintiff in injunction has the onus of proof. The defendants waived no right by subsequent action brought by them for the land. They (defendants) were not .barred from pleading prescription.</p> <p>2. The right of possession, shown to have been in the ancestor in title, passed to the purchaser.</p> <p>Without that possession by the purchaser,, the title of this buyer is sustained by the long-term prescription.</p> <p>At different times the owner under title, translative of property, exercised the right of' a possessor under title.</p> <p>3. The property in . controversy was in the rear of and adjacent to the land of the Orphans’ Home Society. The actual possessor who proves that he anciently had possession is presumed to have possessed during the intermediate time, unless there is proof to the contrary. Civ. Code, art. 3492.</p> <p>Per contra, the defendants in the petitory suit could acquire no legal title under a description general in terms, referring to no particular land.</p> <p>Besides, subsequent adverse title is sustained' by prescription.</p> <p>Cutting down a few trees in the swamps, without its appearing definitely whether the intention was to enter into possession, is not sufficient to maintain a title by prescription.</p> <p>(Syllabus by the Court.)</p>