Rocques' Heirs v. Levecque's Heirs

• Decision Date: 13 April 1903
• Docket Number: 14,662
• Citation: 110 La. 306,34 So. 454
• Parties: ROCQUES' HEIRS et al. v. LEVECQUE'S HEIRS
• Court: Louisiana Supreme Court

34 So. 454

110 La. 306

ROCQUES' HEIRS et al. v. LEVECQUE'S HEIRS

No. 14,662

Supreme Court of Louisiana

April 13, 1903

Rehearing denied May 11, 1903.

Appeal from Judicial District Court, Parish of Natchitoches; Charles V. Porter, Judge.

Action by the heirs of Rosa Rocques and others against the heirs of J. A. Levecque. Judgment for plaintiffs, and defendants appeal. Affirmed.

Chaplin Chaplin & Chaplin and Jack & Fleming, for appellants.

Scarborough & Carver, for appellees.

OPINION

BREAUX, J.

Plaintiffs seek to recover a particular portion of land which they claim to have inherited from their mother, who in turn had inherited from her grandmother, and they also sue for a partition of the land.

The complaint is that the late Dr. J. A. Levecque, without any right, went into possession of this land in the year 1882, and that his heirs illegally claim to be its owners. Plaintiffs set up that as children (minors) at the date of sale in 1882, now of age, they are entitled to the ownership of the property. The defendants controvert plaintiffs' demand, and claim that the late Dr. Levecque, husband of one of the defendants and father of the others, bought the land in good faith in 1882 from Aubin Rocques and Marie Rocques, heirs of Marie Barbe Rocques, deceased wife of Charles N. Rocques, and from Constant Chevallier, natural tutor of the children of his marriage with Rosa Rocques, deceased, and J. C. Llorens, natural tutor of the issue of his marriage with Marie Barbe Rocques, deceased.

Marie Barbe Rocques was the wife of J. C. Llorens. Rosa Rocques was the wife of Constant Chevallier. They were daughters of C. N. Rocques by his last wife. Plaintiffs, the Chevallier heirs, inherited from their mother, Marie Barbe Rocques. The others, the Llorens heirs, inherit from their mother, Rosa Rocques.

The sale was authorized by a family meeting, convoked on the joint application of the natural tutors, representing the interests of the minors. There is no question or dispute regarding the portion of land bought by Dr. Levecque from Aubin Rocques and Marie Rocques.

Defendants invoked good-faith possession; deny all indebtedness for rent, should they lose the suit; and they claim taxes paid by them, and value of the improvements they have added to the land. They set forth that in the year 1879 the late Dr. Levecque bought a parcel of land from Aubin and Marie Rocques, heirs of Widow C. Rocques; being the rear portion of the plantation of C. N. Rocques, on the east side of Cane river.

"That they," as alleged in their answer, "are unable to state whether that is part of the seventy-three acres;" that a survey may be necessary to determine what lands plaintiffs really claim. They plead the prescription of five years, as curing any informality touching the family meeting, and ten years as owners of a title translative of property. In the alternative, if condemned, they ask to be allowed the value of their improvements.

Defendants amended their answer by setting up that the family meeting intended to recommend the sale of land on the east side of Cane river, but that by clerical error the west bank had been written.

The proces verbal of the family meeting contains the following:

"The members did thereupon advise and say in their opinion and belief it was to the advantage and interest of the several minors that their several natural tutors do join with the major heirs in the private sale of said seventy-four acres of land for the price and sum of eight hundred dollars for the whole. They thereby fix said amount as the appraised value thereof."

It is a fact that plaintiffs, in administering their proof, went behind the sale which they attack, and under which defendants hold, and introduced evidence of mortuaria proceedings and other acts, and in so doing developed that the grandfather, C. N. Rocques, was married to Pompare Metoyer, who bought the land in marriage in her own separate right. After her death, Rocques was married to another wife, grandmother of plaintiffs, and from whom they derive. This property of the first marriage he caused to be adjudicated to himself in the year 1848 at the price of appraisement, as if it had been community property. He thereafter rendered an account to the children of the first marriage, showing certain debts and credits. He made a will, and left the property to the children of the second marriage.

Constant Chevallier, witness for defendants, testified that a family meeting was called for the purpose of authorizing sale of the land to Dr. Levecque, and he agreed to sell him the tract of land, and pay what he (the witness, who was tutor of one of the sets of minors) and Llorens owed him, and he was to pay the balance in cash.

Mr. Alphonse Prudhomme, a witness, in answer to the following question, said:

"Q. Please refer to the memoranda on the book where Dr. Levecque credits himself with $ 800, price of that land, and charges against the family the debts.

"A. I will refer to page showing balance due.

"Q. You say that $ 800 was divided among the heirs?

"A. Eight hundred dollars, value of the land. Three hundred dollars deducted from the $ 800, which, I understand it, was taxes and attorney's fees, leaves $ 490, to be divided into four parts, and each one credited with $ 124.94."

This statement is based upon entries in an account book of Dr. Levecque.

Part of the debts for which the property was sold was due by the succession of Mrs. C. N. Rocques, grandmother of plaintiffs, the owner of the property at her death.

The issues as made up by the testimony are whether the proceedings are null, because of the failure of the judge to have the abstract of inventory recorded before confirming the natural tutor.

(1) That plaintiffs introduced evidence which discloses the existence of an outstanding title in a third person, and are estopped and precluded from disturbing defendants' title.

(2) Whether the original purchaser was a bona fide purchaser.

(3) Was there a misapplication of the funds by the tutors of the vendors, to the extent of affecting the validity of the sale?

The judge of the district court held, in a carefully prepared opinion, that the sale and proceedings leading up to it were not null, on the ground urged by defendants -- that no abstract of inventory had been recorded before confirming the natural tutor -- but held that the sale was null on another ground urged, substantially, that it was a dation en paiement of the tutors to pay their personal indebtedness with the property of their wards, to the knowledge of the buyer.

From this judgment, defendants prosecute this appeal.

The clerical error in defendants' deed, corrected by substituting "east" for "west," we think, was manifest enough; that it was sustained by the testimony; and that, properly, the oversight was removed, and the document, to that extent, was rightly remodeled to conform with the evident intention of all parties concerned.

Regarding defendants' position that plaintiffs have put themselves out of court by proving too much, we can only say that plain...