WESTERN DIST. There was judgment in their favor, and the plaintiff September, 1840. appealed.

Simon, J., delivered the opinion of the court.

Plaintiff sets up title to a tract of land situated at or near the confluence of the rivers Teche and Atchafalaya, containing twenty-five arpents front on the river Teche, or about one thousand superficial arpents, which title is derived from the heirs and representatives of John and Henry Bosler. He alleges, that the defendants have taken possession of a part of his land, and prays that they be ordered to remove from said land. He also prays for one thousand dollars damages.

Defendants called in their warrantors, who all filed their answers, in which they allege that William Biggs, under whom they hold, had good and valid titles to six hundred and forty acres of land on the east side of the bayou Teche, acquired from the government of the United States by settlement, and regularly confirmed and located. They also plead the prescriptions of ten and twenty years. The inferior court quieted the defendants in their title to and possession of their tract; from which judgment, plaintiff appealed.

The titles of the plaintiff are predicated upon a requête and certificate of vacancy signed by the Spanish commandant, dated 7th December, 1801, in which the Boslers demand a concession of twenty-five arpents in front, by the ordinary depth of forty, situated at the mouth of the river Teche, on the east side. A part of this tract (six hundred and forty acres,) was confirmed in their favor on the 5th of September, 1811; and the balance of two hundred and six acres, was confirmed to them by act of Congress of the 29th April, 1816. The first confirmation was located, by a regularly approved plat, on the 28th of November, 1813, the upper

line of which calls for the defendants' tract; and the second WESTErn Dist. confirmation never was located.

September, 1840.

WILCOXON

Defendants' claim is founded on a permission to settle, given to Biggs by the commandant of Attakapas in 1801, ROGERS ET UX. and upon Biggs's settlement in 1802, with proof of possession and occupancy, by virtue of which he was confirmed in his tract to the extent of six hundred and forty acres, by act of congress of the 29th of April, 1816. This confirmation was located by a plat of survey made on the 24th February, 1819, and approved on the 5th of October, 1824. The lower line of this plat calls for Bosler's.

From the parole evidence, it appears that Bosler's settlement was originally on a mound at the point of confluence of the two rivers, where they had a house; and that Biggs's settlement was about a mile from said point. Biggs occupied and cultivated a part of the land for a number of years, and was living upon it when he exchanged with Foster, (5th of November, 1816.) Sojourner purchased of Foster in 1828, and continued to possess and cultivate the land. There is proof of payment of taxes by Biggs, Foster, and Sojourner; and the surveyor, appointed by the court, shows the old marks and boundary posts which he found on the tracts to correspond with the approved surveys.

From the returns of the surveyor, it appears that the point at the confluence of the two rivers, to the extent of one hundred and twenty acres, is claimed by one Jacob Deronen, by virtue of a Spanish title regularly confirmed; that this quantity is not included in the survey made for the plaintiff in 1813; and the plaintiff contends that he has a right to make up that deficiency by carrying his line further up, and taking the same quantity out of defendant's tract. He also maintains, that as his second confirmation, for two hundred and six acres, grows out and is a part of the tract which he originally owned, that he is entitled to locate it above the upper line of his first confirmation, so as to make it an entire body of land between the upper line of Deronen's tract and the removed lower line of the defendants.

WESTERN DIST,

WILCOXON 7'8.

ROGERS ET UX.

to

where part of

When the plaintiff located his first confirmation, he thought

September, 1840. proper to abandon the very spot of his vendor's original settlement at the mouth of the river, which place his title calls for, and to carry his lower line further up. This was cerTitles to land tainly irregular, and the circumstance of his titles conflicting must be located with Deronen, cannot turn to the prejudice of the defendaccording their calls; and ants. It is a well settled rule, that titles must be located the place called according to their calls; and it is clear, that if Deronen had for by the title is a better title than plaintiff to the one hundred and twenty abandoned, and another person acre tract, plaintiff was to suffer the loss, since his title calls locates it, and acquires a better for the very place where Deronen located his. This plaintiff title, the party knew at the time he made his survey, as he then extended abandoning cannot make his lo- his lines so as to include the balance of his tract, under the place, to the first confirmation, between the upper line of Deronen's and prejudice of the lower line of the defendants', after abandoning the one must suffer the hundred and twenty acres conflicting with Deronen. This part of the plaintiff's claim must therefore be rejected.

cation in another

others.

loss.

Не

The next question is with regard to the second confirmation, which plaintiff seeks to locate on defendants' tract. Where two Both confirmations were obtained by the same act of land titles are of congress, and are, therefore, of equal dignity; but the equal dignity, defendants caused their title to be regularly located, and no

confirmations of

and one is regu

larly located and attempt has been made to show that plaintiff ever took any accompanied by Defendants were in the actual and possession, and step to locate his.

by the other, the

ten years.

no steps taken corporeal possession of the land, in good faith, at the time first will hold their confirmation issued, and the subsequent location the land by the afforded them the means of ascertaining the metes and prescription of bounds of the tract which they were then possessing by virtue of a just title, by them definitively acquired in 1816. Although Foster did not, perhaps, continue to have the corporeal possession of the land after his purchase, he possessed it civilly, animo domini, and by virtue of a title sufficient to transfer the property. Sojourner purchased in 1828, took immediate possession of the tract, put it in cultivation; and as it is perfectly clear, and cannot be controverted, that the actual possessor, who proves that he or his authors have formerly been in possession, is to be presumed to have been in possession in the intermediate time; Louisiana Code,

GARY

SANDOZ.

a

article 3458: that when a person has once acquired posses- WESTERn Dist, sion of a thing by the corporeal detention of it, the intention September, 1840. of possessing suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody; Idem., 3405: and that, to plead the prescription of A corporeal ten years, it is only necessary to show a corporeal possession possession in the beginning, in the beginning, a civil one being sufficient to complete the civil one will be possession already begun. Idem., article 3453. We are of opinion that the defendants, having satisfactorily established possession already begun, that they have possessed the tract of land confirmed in their and to support favor, in good faith, by virtue of a just and legal title, during of ten years. the prescription more than ten years previous to the institution of this suit, (Idem., articles 2445, 6, 7, 8, 9, and others,) have acquired such title, by prescription, as ought to be considered sufficient to defeat the plaintiff's pretensions.

For these reasons, we come to the conclusion that the judge a quo did not err in giving judgment in favor of the defendants.

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

sufficient to complete the

GARY VS. SANDOZ.

APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF ST. MARTIN.

The mere fact of a person's dying in another parish, is not conclusive that his succession ought to be opened and administered there, or that it ought not to be administered in another parish where from an inventory the deceased left property.

When a succession has already been opened and partially administered in a parish where the deceased left property, the former proceedings will be considered as prima facie evidence of the facts necessary to base the jurisdiction on an application to continue and complete the administration in the same place.

WESTERN DIST. This case comes up in the form of an opposition to the September, 1840. defendant's application to be appointed administrator of the estate of Jean Pierre Descuirs, deceased.

GARY vs. SANDOZ.

The defendant, David F. Sandoz, presented his petition to the judge of probates of the parish of St. Martin; showing that there was property belonging to Descuirs' estate, not administered in said parish; that it was the desire of the heirs and creditors that it be administered, and he prayed to be appointed administrator.

The application was published according to law.

Gary, the plaintiff in opposition, presented his petition, objecting to the appointment of the defendant or any other person, as administrator; alleging that Descuirs' succession was not vacant; that he died in New-Orleans, the place of his domicil, and left no property in this parish; and that his succession is not opened here.

The evidence showed Descuirs' succession had been administered in part by F. Beauvais, in the parish of St. Martin, who had been qualified as administrator, and taken an inventory, but died before he completed his administration. The present application is made that it may be completed. The whole proceedings in appointing Beauvais, and the inventory, all had in the parish of St. Martin, were produced in evidence.

The probate judge was, however, of opinion he was without jurisdiction and dismissed the application. The defendant appealed.

Morse, for the plaintiff, insisted that the defendant failed to establish a right to open the succession of Descuirs, in St. Martin, when it was admitted he died in New-Orleans, the place of his domicil. Code of Practice, article 928.

2. It is not shown that there is any property of the deceased in St. Martin, on which to administer; at least, any existing there at the time of this application.

Voorhies, for the defendant, contended that the plaintiff had no right to interfere in this matter; not being a creditor.