Self v. Goins

MOUTON, J. Plaintiff brings this suit to be decreed tbe owner of a tract of land described in his chain of title declared upon in his petition, and to be quieted in his possession of the property, fifteen acr.es of which he avers, defendant is holding wrongfully and without title. His suit is petitory and complies with all the legal requirements for the prosecution of such action. Defendant in her answer admits she has been in possession of fifteen acres of the land as averred in plaintiff’s petition, and alleges that she has been in undisputed possession thereof for a period of more than thirty (30) years. She does not allege that her possession was continuous and public, during that time, and under the title of owner. The fact is that she does not plead the prescription of thirty (30) years, and contents herself by merely averring her undisputed possession of thirty (30) years. On cross-examination by plaintiff, who was sworn as a witness, she propounded to him a question in reference to her possession as alleged in her answer. The introduction of the evidence sought to be thus elicited from plaintiff was promptly objected to by plaintiff, but was admitted subject to the objection. The allegations of defendant’s answer as above outlined do not set up the defense that her possession was uninterrupted or public, and that she possessed as owner, nor was the plea of prescription presented thereunder. The testimony objected to by plaintiff should have been sustained under the provisions of Article 3500 C. C.; City of New Orleans vs. Shakespeare, 39 La. Ann. 1033 , 3 So. 346 . The elimination of this evidence disposes of defendant’s defense, if it can be legally so called, and sustains the judgment rendered in favor of the plaintiff.