Wells v. Goss

Citations

• 110 La. 347
• 34 So. 470
• 1903 La. LEXIS 634

Syllabus

<p>PRESCRIPTION — POSSESSION OF REALTY — SALE PENDENTE LITE — FORCED HEIRS— SIMULATED SALE — CANCELLATION.</p> <p>1.A person who has' been in possession of real-estate as owner, under a just title, translative of property, for 10 years, under the circumstances and conditions required by articles 3478 and 3479 of the Civil Code, is not barred from invoking in his favor the prescription provided for in those articles by the-fact that at the date of his purchase there stood registered on the books of conveyance of the parish where the land was situated the registry of a prior sale of the same property to another person. A fortiori, is he not barred by the registry of a mere “promise of sale.”</p> <p>2. The provisions of article 2453 of the Civil Code, to the effect that the thing claimed as the property of the claimant cannot be alienated pending- the action so as to prejudice his rights, and that, if the judgment be for plaintiff, the sale is considered as the sale of another’s property, and does not prevent him from being put in possession by virtue of such judgment, contemplates the carrying on of the suit to judgment. If the plaintiff, after having made his demand, abandons it, it is after abandonment as if the suit had not been brought. There needed no formal entry of abandonment or discontinuance.</p> <p>3. Act No. 5 of 1884, which grants to forced heirs the right of canceling absolutely and by parol evidence the simulated contracts of those, from whom they inherit, and declares they shall not be restricted to their legitime, establishes a rule of evidence, not a rule of property. It re-</p> <p>. lieves the forced heirs from the restriction which the law had placed upon their ancestor himself as to the character of the evidence which he should be permitted to adduce in support of a claim of simulation.</p> <p>4. Heirs, in claiming the ownership of an undivided half of certain property on the ground that though it was adjudicated in entirety to their mother’s sist