Hart v. Hewitt

REYNOLDS, J. OPINION In this court the defendant, James Hewitt, does not question the correctness of that part of the judgment appealed from as orders cancellation of the record of the sale to him of the land in controversy but only complains of the award of damages to plaintiff. Plaintiff did not allege that defendant was in bad faith in obtaining or putting on record the act of sale in question and as bad faith is not alleged nor proved, good faith will be presumed. The action having been converted from one of slander of title into a petitory one by defendant’s answer and the relative merits of the titles of both plaintiff and defendant to the land having been put at issue and adjudicated, damages should not have been allowed. This question was definitely decided, by the Supreme Court-in the ease of Smith vs. Albritton, 153 La. 507 , 96 South. 49 , where it held that— “in such cases (actions for slander of title) when the defendant, by his answer, has converted the suit into a petitory action” damages will not be allowed. It is, therefore ordered, adjudged and decreed that the judgment appealed from be reversed insofar as it awards plaintiff, Ed. Hart, judgment against defendant, James Hewitt, for damages in the sum of one hundred and fifty dollars and also insofar as it decrees that defendant, James Hewitt, shall pay all costs of the suit, and that it be affirmed in all other respects. *95 It is further ordered, adjudged and decreed that defendant, James Hewitt, pay-all costs of suit incurred in the District Court, and that plaintiffs pay the costs of this appeal-