delivered the opinion of the court.

In this case a re-hearing was granted at a former term, on the suggestion of the defendants’ counsel, that although the judgment in favor of Pierre Broussard, for the land in dispute, was not followed by any writ of possession, nor voluntarily executed, and while the purchaser was thereby undisturbed in his possession, may not amount to such an eviction as to entitle the defendants to a rescission of the sale upon a renunciation on the part of Broussard of the benefit of that judgment, yet that in point of fact, Broussard at the' time of his renunciation had parted with his title, partly by a sale of a part of the land to Joshua Baker, and partly in consequence of his contract with Ursin Broussard, and that one of the plaintiffs went into possession.

The record, upon a more careful inspection of it, cer-taintly shows, that immediately after the judgment of the Supreme Court in favor of Broussard, he did sell to J. Baker-*320the lower arpent front of the disputed tract of land, & long time prior to his. renunciation. At that time, therefore, he was not owner of the whole tract under the judgment, and consequently could not by his renunciation, convey any title to the defendants.

This tract of land purchased by Duhamel, is described as adjoining Ursin Broussard above. By a contract between Pierre and Ursin Broussard as early as 1817, it was agreed, that if the former should recover any part of the land in dispute, it should go to the latter as a part of the six arpents front, which he was to have in that provisional partition of his father’s lands. On the rendition of the judgment in favor of Pierre Broussard, and as soon as the land became his by the effect of that judgment, the title immediately vested in Ursin Broussard. Accordingly, by a contract before a notary, passed subsequently to the judgment, Pierre Broussard confirms to Ursin his title to six arpents front, according to the previous act of 1817.

From all the evidence in the record it appears, that although no writ of possession issued upon the judgment rendered by the Supreme Court, yet Duhamel’s representatives abandoned the land, and entered a formal waiver of any claim for damages against his warrantors ; and that in point of fact, the land at the time thé trial took place in this case, was not in possession of Duhamel, but that Leon Latiolais, the husband of one of the plaintiffs, and the brother-in-law of Ursin Broussard, was in possession at least of a part of it.

Under all the circumstances disclosed in this case, we are . 1¶ satisfied, that so far as Latiolais, the surety, is concerned, he is entitled to relief. He was, so far as it appears to the court, jcrnorant of anv collusion between Duhamel and Broussard ; & J . . and, the renunciation of Pierre Broussard at a time when his counsel alone was not sufficient to destroy the rights of 0(/{iers un¿er that judgment, ought not to be considered as J 0 . placing the parties in the same situation they were m before 7i . the eviction.

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