Adams v. Drews

• Decision Date: 02 March 1903
• Docket Number: 14,443
• Citation: 110 La. 456,34 So. 602
• Court: Louisiana Supreme Court
• Parties: ADAMS et al. v. DREWS et al

34 So. 602

110 La. 456

ADAMS et al. v. DREWS et al

No. 14,443

Supreme Court of Louisiana

March 2, 1903

Rehearing denied June 9, 1903.

Appeal from Twenty-First Judicial District Court, Parish of Iberville; E. B. Talbot, Judge.

Action by Sitgreaves Adams and others against Gustave Drews and others. Judgment for plaintiffs, and defendants appeal. Reversed.

Edward Simon, for appellants.

Hebert & Hebert (Henry Denis, of counsel), for appellees.

OPINION

MONROE J.

Statement of the Case.

Plaintiffs as surviving children and heirs of Christopher Adams, Jr., and of Harriet Adams, his wife, in April, 1900, brought this action in the district court for the parish of Iberville to recover from Gustave Drews 320 acres of land, situated in that parish, together with the value of the timber which had been cut, and might be removed therefrom. The defendant Drews, who resides in the parish of St. Mary, filed a plea to the jurisdiction of the court, ratione personae, upon the trial of which he offered in evidence a notarial act dated March 27, 1900, and duly recorded, whereby he had sold the land in question to the Brownell-Drews Lumber Company, Limited; his purpose being to disclaim both title and possession. The judge a quo was of opinion, as we assume, that the transfer of title did not of itself determine the question of actual possession, and, in the absence of other evidence upon that subject, overruled the plea. The defendant then excepted (1) that the petition does not allege that he is in actual possession; (2) that the citation was not properly served; (3) that the Brownell-Drews Lumber Company, Limited, a corporation domiciled in the parish of St. Mary, owns the property, and should be made defendant in the action for its recovery; and (4) that the claim for the value of the timber alleged to have been removed is too indefinitely stated. The court heard evidence on these exceptions, and they were taken under advisement October 9th, with leave to counsel to file briefs by October 19, 1901. Upon October 18th plaintiffs filed an amended petition, praying that the lumber company be made a party defendant, and reiterating, as against that company, all the allegations of their original petition. Upon October 19th the exception that the defendant Drews was not in possession was referred to the merits, and the other exceptions were overruled. Drews then answered, alleging that he had purchased the land claimed by the plaintiffs by a public act, duly recorded, in 1892, from parties whom he names, and whose title he sets forth, and that he and his authors had enjoyed open, undisturbed possession thereof, as owners, in good faith, from 1847 until March 27, 1900, when he sold it to the lumber company, and that he thereafter neither owned nor possessed the property, and that plaintiffs have no right of action against him therefor, and have no right to make him a defendant in this suit for the purposes of their claim for the value of timber alleged to have been removed by him. And he also pleads prescription. The lumber company then appeared and excepted that it cannot be made defendant in the present suit by means of a supplemental petition, for the reason that Drews, the original defendant, not having been in actual possession of the land, the suit was improperly brought as against him, and abated when that fact was disclosed; that the appearer can be sued for the recovery of the land only in an independent action, and cannot be made a codefendant with Drews, as against whom there is left only a personal action for the recovery of the value of the timber alleged to have been taken by him.

These exceptions were overruled, and the lumber company answered, setting up title acquired from Drews, calling him in warranty, and pleading prescription. Thereafter Drews again excepted that the plaintiffs having substituted the lumber company in his stead, as defendant, with respect to the claim to the land, the suit, as to him, abated; and, this exception having likewise been overruled, he answered the call in warranty, admitting his obligation as warrantor.

Upon the trial on the merits the only testimony offered upon the subject of actual possession at the date of the institution of the suit was that of Henry Shaw, who, being sworn as a witness for plaintiffs, testified that he had been working for Drews for 10 years; that he had taken trees from the land in question, under the latter's direction, in 1892, and again in 1896, and had subsequently deadened other trees. He further said. "I go through there every year on behalf of Mr. Drews. I have been through there this year on behalf of Mr. Drews." There was no attempt on the part of the defendants to contradict this testimony, or to show any other possession than is thereby indicated.

Upon the question of title, it appears from the evidence that in 1847 Christopher Adams, Jr., the father of the plaintiffs, furnished to H. E. Lawrence certain money, to be invested in land for their joint account; that, with the money so furnished, Lawrence bought state internal improvement warrant No. 143, which was located and patented to him April 20, 1850, under patent 413; that the location was made on lots 1 and 4, section 24, and lots 1 and 4, section 25, township 11 S., range 11 E., in the S. E. Dist., W. of the Mississippi river, but was incorrectly described in the warrant as having been made on lots, bearing the same numbers, in sections 24 and 25 of township 11 S., range 11 W.; the fact being that there are no such sections or lots in the range last mentioned. It further appears that in February, 1853, there was recorded in the conveyance office of the parish of Iberville an instrument in writing, dated May 1, 1847, purporting to have been executed by Lawrence, in which he acknowledges having received from Adams the sum of $ 964.43, and having invested the same in "state warrant No. 143, for land on Grand river, entered on jt. acct.," and in which, after describing or attempting to describe the lands that had been entered, he certifies as follows: "The above lands are entered by H. E. Lawrence for the joint account and benefit of C. Adams, Jr., and H. E. Lawrence." The original of this instrument has disappeared, and, whilst the circumstantial evidence leaves little room for doubt upon the subject, there is no direct proof that it was executed by Lawrence. It contains, moreover, an error in the description of the land here claimed, in this: that it describes the lots as situated in range 12, instead of range 11; the fact being that there are no such lots in range 12. In 1854 Lawrence's half interest in the property, as thus erroneously described, was seized and offered for sale by the sheriff of the parish of Iberville under a writ of fieri facias issued in the suit of The Louisiana State Bank v. Henry E. Lawrence. Adams had in the meanwhile died; and Lawrence, having received notice of the seizure, wrote to a Mr. Read, who, as we infer, was one of Adams' executors, in part, as follows:

"I regret extremely that I have not been able to fix that land matter with C. A., Jr., but these judgments go crossways and cannot be arranged as we would wish. My object in writing you this is to inform you that D. N. Hennen, who purchased a note of mine from the State Bank, for 1/2 the face of it, has seized said land and the sheriff of the parish of Iberville notifies me he will proceed to sell, etc. In May, 1850, I sold to R. B. Brashear my undivided half of said lands. I know not whether the sale was recorded and think probably the seizure is of the 1/2 belonging to estate of C. Adams, Jr. You had better examine into and enjoin the sale if it is Mr. Adams' interest he has seized. I shall try to be there before the sale, if possible."

No conveyance to Brashear seems to have been recorded, and the seizure was made of Lawrence's interest in the property, under a judgment which had been obtained against him by the bank, and not by Hennen, who was probably the attorney of the bank. No steps appear to have been taken to prevent it, and the sheriff, proceeding under his writ, adjudicated the property seized to Mrs. Adams, the widow of C. Adams, Jr., for $ 1,260, of which, according to his return, she paid, in cash the amount called for by the writ, say $ 783.85, "and retained in her hands the balance of said price, or the sum of $ 476.15, in compensation of what is due her and her children, heirs of C. Adams, Jr., on the loan made to H. E. Lawrence for the purchase of the above-described property, as per document signed by said Lawrence, and of record in this parish."

It does not appear that Lawrence was then aware that there was any error in the description of the property. In 1860, however, he wrote to Barstow, who, as we understand it, was one of the Adams' executors, saying, inter alia:

"In examining all the law papers in connection with the seizure and sale under the Hennen execution, I found that lots Nos. 1 and 4 of section 24, township 11, range 11, and lots Nos. 1 and 4 of section 25, T. 11, range 11, were not legally seized and advertised or sold under the Hennen execution, and that the titles to the above described lots in sections 24 and 25 are still my property and stand in my name. * * *

"The understanding between myself and C. A., Jr., was, that he would furnish all the cash and I was to select and enter the lands on our joint account; not for our joint interest in the profits, but half of all the acres belonged to me for my trouble, and to be entered in my name if I pleased. I entered the lots 1 and 4, section 24, T. 11, R. 11, containing 160 acres, lots 1 and 4, ...