Cavelier v. Moss

2 La. Ann. 584

• Court: Supreme Court of Louisiana
• Decided: May 15, 1847
• Status: Published

Opinion

The judgment of tl.& court was pronounced by

.Host, J.

This is the action of revendication, based upon a just title not perfected by prescription, named in the roman law, Actio' Publiciana.

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The plaintiffs purchased and took possession of a slave in the State of Mississippi, in 1838'. They held him on- their plantation in Louisiana till the year 1844', when he ran away, and,-having found him in the possession of the defend-ant, they instituted the present action against him. The defendant pleaded a purchase from Porterfield, in Mississippi, in December, 1844; and also that his vendor lmd a good title. There was judgment against him, and he appealed.† The testimony of several witnesses, taken under commission-, and offered by the defendant in- support of his possession and title, was excepted to by the plaintiffs, and rejected-by the court. It has come up with- the record, and a perusal-of it has satisfied us that it should have' been admitted. Those witnesses were’ called upon by the defendant to testify against the inteiest they might have iff the event of the suit, and did so testify. If they ha'd not, their interest is only shown by their declarations, and those declarations establish-their release; their' evidence must be taken together. 1 Greenleafon Evidence, nos. 95, 398, 422.-

The evidence shows that the slave in controversy was- in the possession of Sparks in 1834, and that he sold hinr to Elliott, in 1836-; Elliott sold to Fox,' Fox to Gray, Gray to Knox, in 1837, and Knox to Porterfield, in 1844. It is' also shown that, in 1837, the slave ran- away from1 Knox, who advertised him,- and offered a reward for him; and that, in 1844, he was apprehended in Mississippi, and delivered-by the jailor to Knox, who paid the reward, and sold him-to Porterfield, under whom the defendant claims.

The plaintiffs have'not justified the possession of their vendor, by showing a-title in him under which they could prescribe. The defendant has equally failed to justify the possession of the original vendor, Sparks. Both parties are' in good faith, and claim under titles which they believe to be just. Neither has' possessed long enough- under his title to perfect it by prescription-. They are' of equal condition, and the defendant cannot be evicted by a title not superior to his own. “ L’ancien possesseur de bonne foi n’est pas pareillement reeu á revendiqner lachóse dontil a perdu la possession, contre un possesseur qui, sans en étre propriétaire, la posséderait en vertu d’un juste títre. Car les deux partis- étant dans ce cas d’égale condition, le possesseur actuel doit avoir la préférence'. In pari causá, potior causa possessoris.” Pothier, Droit de Propriété,1 no. 2&’4.

It is therefore ordered, that the judgment in this ease, as it affects the defendant and his Warrantor, be reversed; and that there be judgment against the plaintiffs,- and in favor of the defendant and of the warrantor, with costs in both Courts.

The counsel for the plaintiffs, in air application for a rehearing, contended that the Publiciana in rent actio is inapplicable to the case of a fugitivo slavo. Hsbc actio in his quae usucapi non possunt, puta iurtivis, vel in servo fugitivo, locum non habet. Dig. lib.G, tit. 2,1. 9, § 5. The aetion Rei vindicatio applies to such a case. The Actio Publiciana is unknown to our laws.- The action before the court is simply a petitory action,- or action of revondicalion, as it is termed by art. 43 of the Code of Practice.

The judgment below was against the defendant; hut in his favor against his warrantors, and the latter appealed. The answer of the defendant alleges that the purchase was made from Porterjtcld, in New Orleans. R.