7 LA 297 - Key v. Walker

Mathews, J.,

¶1delivered the opinion of the court.

¶2This is an action of warranty, in which damages are claimed on account of an alleged eviction from á certain tract of land, sold by the defendant to the plaintiff, &c.

¶3The suit was commenced by attachment. The defendant afterwards appeared and answered, and filed a plea in reconvention. The cause was submitted to a jury in the court below, who found a small sum in favor of the reconvenor, and judgment being thereon rendered, the plaintiff appealed.

The record of a suit between other parties, evicting the third possessor, is legal evidence in an action by the third possessor against his vendor, to prove the fact of eviction and the damage sustained by him in consequence thereof.Where the petition alleges the plaintiff was evicted by a certain suit between two other persons, and refers to it by name and description, it is a sufficient aliegation to authorsion o?sucii'rei™m\n actinal pinstthe vendorfendantf whc^is flm vendor sued, suit and proceedvendee 10*to^au-thorise the admission of those proceedings in hídenSatí ter may go to the effect of the evidence, hut not to its admissibility.

¶4A bill of exceptions is found on the record to an opinion of judge a quo, by which he rejected the record of a suit which was in the nature of an action of mortgage, brought by one Alexander Lewis against a certain Henry R. Nerson, on which an order of seizure and sale was obtained and executed, on a tract of land in tbe possession of the plaintiff as purchaser from the defendant, &c.

¶5This evidence was rejected on several grounds: 1st. As being res inter alios acta. 2d. Because its introduction is not authorised by the allegations of the petition ; and, 3d. Because no knowledge of the proceeding was brought home to either plaintiff or defendant in the present suit.

¶6We are of opinion that the court below erred, in rejecting the evidence offered. It is a record of proceedings in pursuance of which the property in the possession of the plaintiff, held under title from the defendant, was sold, and is certainly good and legal evidence to prove rem ipsam; a fact clearly necessary to support the allegations in the petition. Whether it be conclusive to establish such an eviction as would authorise the present action of warranty on the part of the appellant, is a question different- from that which relates to ^ legality or admissibility of the testimony offered. The petition, although, perhaps, not drawn up with the greatest possible precision and technicality, appears to us to have SUj®cient reference to the fact offered to be proven by the record adduced, to authorise its admission. Whether Walker, the defendant, bad or had not knowledge of that proceeding, Is a matter tHa.t may have its effect in a trial of the cause on its merits; but, according to the view which we have taken _ _ . ., „ . „ - , of the subject, cannot legally influence the question of admissibility.

¶7, It is, therefore, ordered, adjudged and decreed, that the jU(jgment 0f the District Court be avoided, reversed and annulled, and the verdict of the jury set aside; and it is further ordered, that the cause be remanded, with directions to said court to permit the record, &c. to be given in evidence. The appellee to pay the costs of this appeal.