Toten v. Case

7 Mart. (N.S.) 261

• Court: Supreme Court of Louisiana
• Decided: October 15, 1828
• Status: Published

Opinion

Martin, J.

delivered the opinion of the court. The plaintiff, as forced heir of her grandmother, claims certain slaves in the possession of the defendant. The general issue, a release, and prescription, were pleaded.

There was judgment for the defendant, and the plaintiff appealed.

It is admitted that the defendant Js in possession of the slaves since the first of February, 1803, and the plaintiff became a widow in 1808. The present suit was in- . on the 19th of December, 1825, so that the defendant has possessed during upwards of twenty-two years; and if, as is contended, she cannot avail herself of her possession during the plaintiff’s coverture, she has possessed during seventeen years since the widowhood.

A claim of slaves is prescribed by the lapse of fifteen years, even where the possession is in bad faith. Civil code. 486, art 66. Id. 488, art 74.

But it is said the defendant possesses under the will of a person who had no right to transfer the whole property in said negroes from her forced heir, the plaintiff; and consequently the defendant, holds as a co-tenant with the plaintiff, and cannot prescribe.

The donation causa mortis of the whole estate of a person who is forced hei r, is not void; the donation is good, but reducible, id. 214, art 26; and this reduction can only be claimed by the forced heir, art 28—so the legatee’s possession is in her own right.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.

Deblieux for the plaintiff—Morris for the defendant.