Bishop v. Copeland, 40643

• Decision Date: 15 December 1952
• Docket Number: No. 40643,40643
• Citation: 62 So.2d 486,222 La. 284
• Parties: BISHOP et al. v. COPELAND.
• Court: Louisiana Supreme Court

Page 486

62 So.2d 486

222 La. 284

BISHOP et al. v. COPELAND.

No. 40643.

Supreme Court of Louisiana.

Dec. 15, 1952.

Rehearing Denied Jan. 12, 1953.

Campbell & Campbell, Minden, for defendant-appellant.

Goff & Caskey, Arcadia, for warrantor-appellee.

Meadors, Shaw & Meadors, Homer, for plaintiffs-appellees.

McCALEB, Justice.

This is a petitory action in which the plaintiffs seek to recover a three-fourths interest in 74.64 acres of land situated in Claiborne Parish, by virtue of their ownership as heirs of their deceased half-sister, Angall Bishop Walton.

Angall Bishop Walton was the only child of the marriage of Tom Bishop to Janie Butler Bishop. Janie Butler died in 1912 and thereafter Angall, as sole heir of her mother, inherited by representation a one- seventh interest in a tract of land situated in Sections 11, 12, 13 and 14, T. 23 N. R. 7 W., Claiborne Parish, comprising 525 acres and known as 'The Butler Tract'. This land, which was owned in indivision by the surviving children of William Butler, Sr. and his wife, Lugene Butler, and the descendants of their predeceased children, was divided into 7 separate parcels and partitioned in kind by the heirs on December 29, 1937. In this act, Angall Bishop Walton received the 74.64 acres in contest. However, the partition deed conveyed to her only the surface of the land, as the Butler heirs declared in the act that they did not desire a division of the mineral rights and interests in and under the 525 acre tract. And, by specific provision, they reserved those rights to themselves in indivision, thus, creating a mineral servitude on the whole.

Following the death of Janie Butler, Tom Bishop married Mittie Evans. Nine children were born of this union, seven of whom now survive and are the plaintiffs in this case. ¹ On June 6, 1939, Angall Bishop Walton died intestate and without issue, being survived by her father, Tom Bishop, and the plaintiffs, her half-sister and brothers. Her succession was opened in Claiborne Parish and, by an ex parte judgment rendered in those proceedings, Tom Bishop was decreed to be the sole heir of Angall and, as such, sent into possession of the property in dispute. Subsequently, on December 30 1939, Tom Bishop mortgaged the property to J. E. Burnette. Following foreclosure proceedings resulting from nonpayment of the mortgage debt, the land was adjudicated at a public sale on February 15, 1941 to Burnette and, on December 13, 1943, he conveyed the tract to Willie Copeland, defendant herein.

Plaintiffs' claim, as aforesaid, is founded on their inheritance of a three-fourths interest in the land as heirs of Angall Bishop Walton. In limine, defendant filed an exception of no cause of action and a plea of estoppel. When these were overruled, he answered admitting the facts but denied the validity of plaintiffs' contention. In the alternative, he pleaded that, should plaintiffs' demand be recognized, he was entitled, as a possessor in good faith, to recover three-fourths of the value of the improvements he had made upon the property amounting in all to $4,500. Additionally, he called his vendor, J. E. Burnette, in warranty praying that, in the event he should be cast in the action, he should have judgment against Burnette for three-fourths of the purchase price he paid for the property plus all other damages and costs which might be sustained.

During the pendency of the suit in the district court, Tommie Lee Bishop, a minor represented herein by his mother and natural tutrix, Mittie Bishop, conveyed to one Larkin Brantley an undivided one-half of his interest in the mineral rights owned by him in the 525 acre tract. This interest is a fractional part of the undivided one-seventh interest of Angall Bishop Walton in the minerals in and under the tract which was reserved at the time of the partition of the Butler estate by the heirs of William Butler and his wife. Following the sale from Tommie Lee Bishop to Larkin Brantley, defendant filed a rule in these proceedings directed to Brantley and the minor, through the natural tutrix, in which he prayed that they be ordered to show cause why he should not be permitted to deposit in court the price of the transfer and thereby be released from all claims, under Article 2652 of the LSA-Civil Code, of either Larkin Brantley or Tommie Lee Bishop as to that proportion of the minerals transferred by the minor to Brantley because, allegedly, the transaction constituted the conveyance of a litigious right.

In accordance with the defendant's prayer, a rule to show cause issued and, on the appointed day, Larkin Brantley and the tutrix of Tommie Lee Bishop appeared and resisted defendant's contention. Subsequently, after a number of continuances, the rule was heard and submitted for decision. Meanwhile, the main issues in contest were tried, argued and submitted and, on November 16, 1951, judgment was rendered in favor of plaintiffs as prayed for. In this judgment, defendant's rule to show cause was dismissed and his demands for compensation for improvements to the land and for redress against his warrantor, Burnette, were rejected as premature, the judge, however, reserving to him the right to renew these demands in another action. Defendant has prosecuted this appeal from the adverse decision.

At the outset, it is apt to state that defendant concedes, as he must, that plaintiffs, being the brothers and sisters of the half blood, inherited three-fourths of Angall's succession and that Tom Bishop, her father, inherited only one-fourth. Articles 911 and 913 of the LSA-Civil Code. Defendant's initial contention, which is reurged here under his exception of no cause of action, is that plaintiffs' demand should nonetheless be rejected for the reason that their ownership has not been registered and that he, being a third person dealing with immovable property, was entitled to depend on the faith of the public records.

There is no merit in the point. It is well settled that our law of registry, Articles 2251 through 2266 of the LSA-Civil Code, is not applicable when the ownership of, or claim affecting, the immovable has become vested in the claimant by mere operation of law. See Long v. Chailan, 187 La. 507, 175 So. 42 and Dugas v. Powell, 207 La. 316, 21 So.2d 366. In the case at bar, plaintiffs' ownership was acquired by inheritance from Angall Bishop Walton immediately after her death, Article 940 of the LSA-Civil Code, and they became seized of her succession at that time, the right of possession being continued in them 'as if there had been no interruption and independent of the fact of possession.' Article 942 of the LSA-Civil Code.

The cases relied on by counsel for defendant, ² particularly that of Humphreys v. Royal, 215 La. 567, 41 So.2d 220, are not apposite. Those authorities do not extend the provisions of Article 2266; they merely apply them as written and stand only for the proposition that, whenever a person has a claim to or affecting immovable property founded on a sale, contract or judgment, he cannot be protected against third persons unless the sale, contract or judgment is of record.

Defendant depends heavily on his plea of estoppel. This plea is based, in part, on Article 1839 of the LSA-Civil Code which provides:

'But if the person, who is really entitled to the quality assumed by the one with whom the contract is made, has contributed to the error by his neglect or by design, it will not vitiate the agreement. And in the case above stated, a payment to, or a compromise with one, whom the true heir suffered to remain in possession of the inheritance, and to act as heir, without notice, would be valid.' (Italics ours.)

It is professed by counsel for defendant that plaintiffs have estopped themselves from claiming ownership of an interest in the land because they sat idly by and permitted their father to be placed in possession of Angall's succession as sole heir; that they knew that he was mortgaging the land to Burnette and that they, over a long period of time, allowed him to deal with the property as sole owner without protest.

The proposition is not tenable. In the first place, the contention, even if it were otherwise sound, could affect only two of the plaintiffs as the other five were minors at the time their father, Tom Bishop, was placed in possession of Angall's estate. But above this, the asserted inaction of plaintiffs could not constitute an estoppel as it is the firmly established jurisprudence of this court that mere silence and delay cannot effect a loss of title to property other than by the laws of prescription Long v. Chailan, supra; Tyson v. Spearman, 190 La. 871, 183 So. 201; Parker v. Ohio Oil Co., 191 La. 896, 186 So. 604; Dugas v. Powell, supra; Dileo v. Dileo, 217 La. 103, 46 So.2d 53 and Juneau v. Laborde, 219 La. 921, 54 So.2d 325.

The facts of this case are not such as to bring it within the purview of Article 1839 of the LSA-Civil Code. Tom Bishop was an heir and was entitled to possession for himself and also in his capacity as administrator of the estate of his minor children. LSA-Civil Code Article 221. Hence, it can hardly be said that the two plaintiffs who were majors at the time their father took control, should have protested so that third persons would not be misled. Indeed, it is exceedingly doubtful that they were aware of their legal rights but, even if they had been, we do not think that this circumstance would authorize the application of Article 1839. That article does not provide that knowledge, coupled with silence and inaction, will sustain an estoppel. Albeit, it must be shown that the neglect or design of the heir 'has contributed to the error', that is, he must aid and assist in bringing about the error either by an affirmative act or an ommission to act when the circumstances confronting him prompted action. Plaintiffs' mere inaction in this case did not contribute to the error of Burnette or that of defen...