Arnold v. Sun Oil Co., 38763

• Decision Date: 31 May 1949
• Docket Number: No. 38763,38763
• Citation: 48 So.2d 369,218 La. 50
• Parties: ARNOLD et al. v. SUN OIL CO. et al.
• Court: Louisiana Supreme Court

Page 369

48 So.2d 369

218 La. 50

ARNOLD et al. v. SUN OIL CO. et al.

No. 38763.

Supreme Court of Louisiana.

May 31, 1949.

On Rehearing June 30, 1950.

Plauche & Plauche, Lake Charles, Sholars & Gunby and Dhu Thompson, Monroe, James T. Spencer, Farmerville, for defendants-appellants.

Dhu Thompson, Monroe, curator and tutor ad hoc.

Liskow & Lewis, Lake Charles, Oliver & Digby, Monroe, Tinsley Gilmer, Milling, Godchaux, Saal & Saunders, New Orleans, Geo. C. Schoenberger, Jr., New Orleans, amici curiae.

O'Niell & O'Niell, New Orleans, Hudson, Potts, Bernstein & Davenport, Monroe, McIntosh, Sims & Hester, Oak Grove, Ellis, Ellis & Lancaster, James W. Ellis, New Orleans, for plaintiffs-appellees.

VIOSCA, Justice ad hoc.

This is a petitory action, in which one of the plaintiffs, Effie Dexter Arnold, seeks to be recognized as the owner of an undivided one-half interest in 80 acres of land on which there is a producing oil well. This tract is situated in the Parish of Richland, State of Louisiana, and is described as follows: SE 1/4 of SW 1/4 of Section 14, and NE 1/4 of NW 1/4 of Section 23, Township 17 North, Range 9 East. Each of her coplaintiffs, Robert B. Prentice and Murray Hudson, seeks to be recognized as the owner of a fractional royalty interest in the minerals under this land by virtue of a deed to each from Effie Dexter Arnold dated August 25, 1945, and plaintiff Prentice seeks, in addition, to be recognized as the owner of a mineral lease granted to him by Effie Dexter Arnold.

Defendants now before the court are the heirs and representatives of Mrs. Elizabeth K. Anding and James L. Anding, Sr., who claim the entire ownership of the property in question, and Charles H. Murphy, Jr., and Sun Oil Company, owners of an oil, gas, and mineral lease dated August 25, 1944, covering this tract, executed by Mrs. Elizabeth K. Anding, widow of James L. Anding, Sr.

The district court rendered judgment in favor of plaintiffs and against defendants, decreeing Effie Dexter Arnold to be the true and lawful owner of an undivided one-half interest in the land, subject to the lease to Prentice and to sales by her of royalty interests to plaintiffs Prentice and Hudson, and further ordering and decreeing that a certain tax sale from J. L. Anding to James L. Anding, Jr., be cancelled and erased from the records of Richland Parish, and reserving to plaintiffs the right to an accounting for the oil, gas, and other minerals produced from the property, subject to the proportionate part of any taxes that may be due. From this judgment defendants have appealed.

Both plaintiffs and defendants derive their title from Mariah Dexter, who, authorized by her husband, Boston Dexter, acquired the property here in controversy on December 9, 1875. Mariah and Boston Dexter both died before the year 1909 without having parted with title to the property. Thereafter a deed was executed on May 31, 1912, by one of their sons, Walter Dexter, and by Louis and Willie Dexter, who were also members of the Dexter family but who had no interest in the property, to George Calder, with full and complete warranty of title, for a recited consideration of $121.68, in which deed it was recited that they conveyed all of their 'rights and titles & interests' in the property.

At the time this deed was executed, however, Walter Dexter, one of the vendors, actually owned only a one-half interest in the property, and the other one-half was owned by plaintiff Effie Dexter Arnold, daughter of Henry Dexter, a deceased son of Mariah and Boston Dexter. According to the record, this plaintiff, who was born on August 22, 1902, and who was 43 years old at the time that suit was filed, has never divested herself of her one-half interest in this property.

By sheriff's deed dated August 11, 1915, the property was acquired by the Central Savings Bank & Trust Company, having been seized under a writ of fieri facias to satisfy a mortgage executed by George Calder, and was by this institution conveyed to Daniel T. Phillips under a deed dated November 28, 1917. Phillips conveyed this property to James L. Anding, Sr., on January 4, 1919. As per tax deed dated June 4, 1928, the sheriff and ex officio tax collector sold the property to James L. Anding, Jr., for the 1927 taxes assessed to J. L. Anding. Approximately four years later, on June 14, 1932, James L. Anding, Jr., conveyed the property to his mother, Mrs. Elizabeth K. Anding, widow of James L. Anding, Sr., Anding, Sr., having died on December 31, 1928.

Thereafter Mrs. Elizabeth K. Anding executed an oil and gas lease in favor of defendant C. H. Murphy, Jr., who subsequently assigned a one-half interest therein to defendant Sun Oil Company. After the execution of the lease, Mrs. Anding conveyed to her children an interest in the mineral rights, and she and these children, together with the lessee and his assignee, were named as the original defendants herein. After the filing of this suit, Mrs. Anding and her son, James L. Anding, Jr., both died, and their heirs have been substituted as defendants by appropriate proceedings.

Plaintiffs assert that the purported tax sale dated June 4, 1928, by Anding, Sr., to Anding, Jr., '* * * was simulated, null, void and of no effect; that James L. Anding, Jr. did not make the purchase at tax sale in good faith, for himself, or with his own money, but, rather, that said tax purchase was made in collusion with his father, for his father, and with money furnished by his father; that this attempted tax sale was an illegal use of the machinery provided by law for the collection of taxes, contrary to public order and morals, and that in no event could it have the effect of transferring title from James L. Anding, Sr., to James L. Anding, Jr., or of conferring any right whatsoever upon him, or upon any assignees or other claimants of title under him'.

Defendants, after setting forth their chain of title from Mariah Dexter, in support of the validity of their title plead the prescriptions acquirendi causa of 10 and 30 years, and also urge a plea of five years' prescription or preemption against plaintiffs' attack on the tax sale under Article X, Section 11, of the Louisiana Constitution. In their answer defendants further plead that by laches, long silence, inaction, and acquiescence plaintiffs have ratified the tax sale and are now estopped to deny its validity.

Defendants Murphy and Sun Oil Company also urge that they were bona fide third purchasers on the faith of the public records with reference to their acquisition of the oil and gas lease granted by Mrs. Anding, and that, as such, they are not bound or affected by any fraud or simulation in the title of their grantor not appearing of record or by any unrecorded rights and equities of any other parties.

The plea of prescription of 30 years acquirendi causa is without merit as Effie Dexter Arnold did not become 21 years of age until August 22, 1923, and this suit was filed on October 30, 1945, a lapse of less than 23 years. The prescription of 30 years acquirendi causa does not run against minors. Civil Code, Article 3522.

The pleas of laches and estoppel are without merit. Effie Dexter Arnold, at the age of two years, upon the death of her mother, was placed in the care of Amanda White Shafer, who did not reside on the property. Thereafter, Effie Dexter Arnold was married and moved from the community, and she did not learn of her interest in the property until shortly before the institution of this suit. It is not established that she at any time committed any act calculated to mislead or deceive anyone; and her failure to assert a right of which she was ignorant cannot serve as the basis of a plea of estoppel or laches.

Defendants, in support of their plea of 10 years' prescription acquirendi causa, contend that the title, possession, and good faith of George Calder were the basis for the running of prescription, which continued to run and accrue under subsequent transferees from Calder. They make the same contention with respect to the title, possession, and good faith of each of the subsequent transferees--Central Savings Bank & Trust Company, Daniel T. Phillips, James L. Anding, Sr., James L. Anding, Jr., and Mrs. Elizabeth K. Anding, widow of James L. Anding, Sr. It therefore becomes necessary to consider the title, the good faith, and the possession of each of these respective transferees, from George Calder to and including Mrs. Elizabeth K. Anding, widow of James L. Anding, Sr.

There is and can be no dispute as to the sufficiency in point of form of the titles of any of these transferees with the exception of that of George Calder. Plaintiffs attack the sufficiency of Calder's title because of certain erasures in the original deed and because Walter, Louis, and Willie Dexter did not convey the whole property but only their 'rights and titles & interests' therein. The first contention is without merit. The original deed is in the record. An examination thereof discloses that the notary public who executed the act first inscribed the names of the vendors without their marital status and thereafter erased them and reinscribed them with their marital status. The description of the property apparently was first written thus:

'The SE 1/4 of the NsW 1/4 and the NE 1/4 of the NW 1/4 of Section 23, T. 17 N. R9 East, containing 80 acres of land more or less'.

It will be noted that the first quarter section mentioned apparently was first typed 'SW 1/4' and the letter 'N' later typed partially over the 'S'. The whole description was typed over with capital 'X's', and the following description was inserted directly below:

'The SE 1/4 of the SW 1/4 of section 14, and the NE 1/4 of the NW 1/4 Section 23. All in T. 17 N. R. 9 E. Containing 80 acres more or less.'

In the first description the whole acreage was erroneously described as being in Section 23, whereas one 40-acre tract was in and the NE 1/4 of the NW 1/4 ...