Administrators of Tulane Educational Fund v. Stair

• Decision Date: 31 May 1920
• Docket Number: 23849
• Citation: 148 La. 11,86 So. 595
• Court: Louisiana Supreme Court
• Parties: ADMINISTRATORS OF TULANE EDUCATIONAL FUND v. STAIR et al

86 So. 595

148 La. 11

ADMINISTRATORS OF TULANE EDUCATIONAL FUND v. STAIR et al

No. 23849

Supreme Court of Louisiana

May 31, 1920

Rehearing Denied November 3, 1920

Appeal from Civil District Court, Parish of Orleans; George H Theard, Judge.

Suit by administrators of the Tulane Educational Fund against C. A Stair and others. From a judgment for defendants, plaintiffs appeal.

Judgment annulled and reversed, and judgment ordered for plaintiffs.

Hall, Monroe & Lemann, of New Orleans, for appellants.

John C. Hollingsworth, Wm. Winans Wall, George Montgomery and John O. Streck, all of New Orleans, for appellees.

DAWKINS J. MONROE, C. J., takes no part.

OPINION

DAWKINS, J.

This is a suit to fix the boundary between lots A and B of a tract of land known as the Foucher estate, situated in the city of New Orleans, according to an act of partition passed before James Fahey, notary, on April 10, 1889, and a map or plan made by L. J. Fremaux, surveyor, attached thereto and forming part thereof. Plaintiffs, as trustees for Tulane University, are the owners of lot B, situated on the east side of said boundary, and defendants are the owners of a portion of lot A abutting it on the west, and now consisting of a large number of lots owned by them separately.

Plaintiffs contend that the said boundary or division line should be drawn straight from a certain conceded point on the north or lake side of St. Charles avenue to what is known as the Marly tract on the north side of the property; while defendants claim that, starting from the same point on St. Charles avenue, the line should be run straight and in a direction to strike the south or west line of Claiborne avenue at a point 532 feet, 6 inches, and 4 lines southeast of a point where the west line of said lot A (which is the same as the west line of the original Foucher tract) intersects the said south line of Claiborne avenue, and thence in a straight line to a common point on the line of the said Marly tract, thus causing the boundary line between plaintiffs and defendants to bend or buckle at Claiborne avenue; the difference between the two consisting of two triangular pieces of property with a common base on the south line of Claiborne avenue of 47.19 feet, and with west legs on the line contended for by plaintiff and east legs formed by the boundary claimed by defendants, and with apexes on St. Charles avenue and the line of the Marly tract at points common to the contentions of both sides.

There was judgment below sustaining the contention of defendants, and plaintiffs have appealed.

Opinion.

In 1889 the entire Foucher tract north of St. Charles avenue was owned in indivision as follows: 15/36 by the widow and heirs of Samuel P. Blanc; 10/36 by the estate of William Henry; and 11/36 by Joseph Hernandez. Certain of the owners in indivision brought suit against the others for partition, and on February 27, 1889, there was judgment in said cause, entitled C. E. Girardy et al. v. Heirs of William Henry et al., Slip op., No. 23315 on the docket of the civil district court for the parish of Orleans, ordering the partition in kind of said property, and appointing three experts and a surveyor, one L. J. Fremaux, to divide said property into lots. Pursuant to said judgment and order, Fremaux made a map and survey of said Foucher tract, as per the following sketch, to wit:

[SEE DIAGRAM IN ORIGINAL]

Lots A, B, and C were made to represent the interests of the heirs of Blanc, estate of Henry and Hernandez, respectively, and the said notary was proceeding to have the parties draw for the several lots, when Hernandez objected to this mode of proceeding and insisted that the several interests should receive the portions in the order mentioned: that is, lot A to the widow and heirs of Blanc, lot B to the estate of Henry, and lot C to Hernandez. At this point the matter was by the notary referred back to the court, and there was judgment ordering the partition to proceed in the matter urged by Hernandez. Accordingly there were allotted to the three sets of owners the portions of the property described in the act of partition and from which we quote as follows:

"Now, these preliminaries being settled, Louis E. Lemarie, Arthur Benedic, and Evariste Blanc, all three experts appointed and sworn for me, notary, on the 13th day of March, 1889, to form the lots for the purposes of the partition, did declare that, with the assistance of L.J. Fremaux, a surveyor appointed by the court for that purpose in said order of February 27, 1889, they had divided said property into three portions or lots, each of a value corresponding to the respective interests of the parties hereto in and to said property to be partitioned delineated on a figurative plan of survey made by said Fremaux, and designated by the letters A, B, and C on said plan, which paraphed ne varietur by me, notary, for identification herewith is hereto annexed as part hereof, which said lots are described as follows:

"Lot A.

"Beginning at the corner to this estate and the square of ground belonging to Blanc & Henry and marked A on said plan of L.J. Fremaux herewith annexed, being the front corner on St. Charles avenue; thence with an angle with the front line 96° 26" 30''' ran 300 feet to B; thence on a line parallel to the St. Charles avenue 240 feet to C; thence with the angle above mentioned ran on side line in a northeasterly direction 7,613 feet 11 inches and 7 lines to D on the Marly tract line; thence with said line in a southeasterly course 300 feet to E. the corner common to this estate and that of William Henry; thence southwestwardly 7,811 feet to F being front corner on St. Charles avenue, common to this estate and that of Henry; thence 496 feet 2 inches and 3 lines on North line of St. Charles avenue to place of beginning.

"Lot B.

"Beginning at F, above described, in a northeasterly direction 7,811 feet to the Marly tract line at E; thence on that line in a southeasterly direction 79 feet 5 inches and 4 lines to G thence on the back line of Marly with an angle of 45° 53' 49" 4,444 feet 2 inches and 1 line to H, being the back line of the lot on the line of the New Orleans Canal property; thence on a southwesterly direction 12,192 feet 6 inches to I...