Blevins v. Manufacturers Record Pub. Co.

• Decision Date: 12 November 1957
• Docket Number: No. 43469,43469
• Citation: 235 La. 708,105 So.2d 392
• Parties: Jacques E. BLEVINS v. MANUFACTURERS RECORD PUBLISHING COMPANY et al.
• Court: Louisiana Supreme Court

Page 392

105 So.2d 392

235 La. 708

Jacques E. BLEVINS v. MANUFACTURERS RECORD PUBLISHING COMPANY et al.

No. 43469.

Supreme Court of Louisiana.

Nov. 12, 1957.

On Rehearing May 26, 1958.

Hawthorne's Opinion on Rehearing Oct. 14, 1958.

Fournet's Opinion on Rehearing Oct. 15, 1958.

Henican, James & Cleveland, C. Ellis Henican, Clem H. Sehrt, New Orleans, C. H. Downs, Alexandria, for plaintiff-appellant.

Herold, Cousin & Herold, by Sumter P. Cousin, Shreveport, Charles Janvier, Tinsley Gilmer, Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, John E. Fleury, Gretna, Doyle, Smith & Doyle, New Orleans, Smitherman, Smitherman & Purcell, Shreveport, Ellender & Wright, Houma, James P. Vial, Hahnville, for defendants-appellees.

SIMON, Justice.

By this petitory action the plaintiff claims title to and possession of an irregularly shaped tract of land comprising 408 acres situated in Section 40, Township 14 South, Range 20 East, St. Charles Parish, Louisiana, shown on the free-hand tri-colored sketch of the plat shown in the record and described more fully in his petition as follows:

'Tract No. 1: That portion of Fractional Section 40 lying West of the Section line between Section 17 and Section 18, produced, and North of a line drawn West from a point on the center line of the Southern Pacific Railroad track, said point being 600 feet North of the intersection of said Railroad track with Bayou Saut D'Ours, being in Township 14 South, Range 20 East, Southeastern Land District of Louisiana, West of the Mississippi River. The said tract being colored in blue on the sketch shown below.

'Tract No. 2: That portion of Fractional Section 40 lying West of the Section line between Section 17 and 18, produced, and South of a line drawn West from a point on the center line of the Southern Pacific Railroad track, said point being 600 feet North of the intersection of said Railroad track with Bayou Saut D'Ours, being in Township 14 South, Range 20 East, Southeastern Land District of Louisiana, West of the Mississippi River. The said tract being colored in red on said sketch.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

'Tract No. 3: That portion of Fractional Section 40 lying East of the Section line between Section 17 and Section 18, produced and South of a line drawn West from a point on the center line of the Southern Pacific Railroad track, said point being 600 feet North of the intersection of said Railroad track with Bayou Saut D'Ours, being in Township 14 South, Range 20 East, Southeastern Land District of Louisiana, West of the Mississippi River. The said tract being colored in green on said sketch.'

The trial court rendered judgment in favor of defendant and against the plaintiff, his heirs and assigns, dismissing his suit and rejecting his demand.

During the pendency of this suit below the plaintiff, Jacques E. Blevins, died and thereafter this case was prosecuted and this appeal is taken by his estate, appearing through the duly qualified and authorized testamentary executrix.

In order to properly dispose of the issues herein presented it is necessary to chronologically set forth the material and pertinent transfers pleaded by plaintiff in support of his alleged title, as well as those pleaded by defendants. At the outset it should be stated that the only land involved herein is a portion of fractional Section 40, Township 14 South, Range 20 East, as hereinabove platted and described, notwithstanding that the instruments of conveyance hereinafter referred to include the description of land or lands other than the subject property.

The transfers pleaded by plaintiff in support of his alleged title are as follows:

1. The act of sale dated September 10, 1906 by O. W. Crawford to Truck Farm Land Company, Ltd.

2. The tax sale of property assessed in the name of Truck Farm Land Company, Ltd. for the unpaid taxes for 1907, dated July 25, 1908 by the sheriff and ex-officio tax collector for the Parish of St. Charles to Allan T. Dusenbury, and confirmation thereof dated July 31, 1908.

3. The act of sale dated December 15, 1910 by Truck Farm Land Company, Ltd. joined by Allan T. Dusenbury, to the Louisiana Farm Land Company, Ltd.

4. The act of sale dated December 17, 1910 by the Louisiana Farm Land Company, Ltd. to Julius F. Funk. By an act under private signature dated March 14, 1911 the said Funk transferred an undivided one-half interest in the said property to Harry C. Snell, who on August 21, 1911 by a similar act reconveyed same to Julius F. Funk.

5. The act of sale dated July 21, 1911 by Julius F. Funk and Harry C. Snell to J. Lahroy Slusher.

6. The act dated July 26, 1911 by J. Lahroy Slusher to the Louisiana Delta Lands Company.

7. The act dated November 21, 1913 by Louisiana Delta Lands Company to Edward Wisner.

8. The act dated April 21, 1917 by the executors of the estate of Edward Wisner to Mrs. Mary Jane Wisner.

9. The act dated April 21, 1917 by Mrs. Mary Jane Wisner to Wisner Estates, Inc., a Louisiana Corporation.

10. By act under private signature dated May 22, 1940, amended by act dated December 12, 1945, the Wisner Estates, Inc. transferred to plaintiff herein an undivided one-half interest in the property. By act dated December 12, 1945 the Wisner Estates, Inc. transferred all of its right, title and interest in and to the subject property to plaintiff. All of said deeds were recorded in the conveyance records of the Parish of St. Charles. (The various mineral deeds executed, not being material to the issue herein, are not here delineated.)

In the act dated December 15, 1910 the property therein transferred by the Truck Farm Land Company, Ltd., joined by Allan T. Dusenbury to the Louisiana Farm Land Company, Ltd., appellant's author in title, is described in part as follows:

'All lots or Frc. Sec. 38, 39 and 40 except the previously sold portions of same which are as follows:

'There is also excepted from Sections 39 and 40 approximately 440 acres previously sold to Albert Phenis, as per private act passed before William Renaudin, Notary Public, and recorded in the Conveyance Records of St. Charles Parish, in Book ---, Page ---.

'All of the above being in Township 14 South, Range 20 E.'

Transfers executed subsequent to the said deed of December 15, 1910 excluded or excepted the approximately 440 acres previously sold to Albert Phenis, as above recited.

Plaintiff also pleads a ten-year prescriptive title and alleges that his author in title, Truck Farm Land Company, Ltd., from the date of its acquisition dated September 10, 1906, as did its successors in title, took and maintained actual open, notorious and uninterrupted physical possession as owner or owners thereof for a period in excess of ten years.

Plaintiff also presented a third or independent title based upon a tax deed dated July 20, 1920. For the year 1919 the subject property was assessed in the name of Wisner Estates, Inc.; and because of non-payment of taxes said property was adjudicated to the State of Louisiana on July 17, 1920. On or about June 11, 1921 the said property was redeemed by H. H. Timken, and on June 30, 1921 judgment was rendered recognizing him as having paid the full redemption price and, as a creditor, therefore subrogated to the rights of the State, including the liens and privileges bearing against each specific tract of land to the extent of the actual taxes bearing against the same. Thereafter in execution of said judgment Timken became the adjudicatee. On February 13, 1926, by act under private signature, the said Timken sold the subject property herein to the Border Research Corporation, the name of which was subsequently changed to the Louisiana Land and Exploration Co., who on December 12, 1945, sold and transferred the said property to Jacques E. Blevins, plaintiff.

The transfers pleaded by defendants in support of their alleged title are the following:

1. The tax sale dated July 25, 1908 by the sheriff and ex-officio tax collector for the Parish of St. Charles to Allan T. Dusenbury, and confirmation thereof dated July 31, 1908, being the same tax deed relied on by plaintiff.

2. The act of sale dated March 9, 1910 by Allan T. Dusenbury to Albert Phenis, the property therein being described as follows:

'That portion of lot or Fractional section 40 lying West of the section line between Sections seven (7) and eight (8) above, produced and a line drawn West from a point on the center line of the Morgan Louisiana and Texas R.R. Co., said point being 600 feet North of the intersection of said Railroad with Bayou Saut D'Ours, and, that portion of lot or Section Thirty-nine (39) bounded on the North by the above described land, on the East by the right of way of the said Morgan Louisiana & Texas R.R., on the South by Bayou Saut D'Ours, and on the West by Section Forty (40), all being in T. 14 S.R. 20 E. South Eastern Land District of Louisiana West of the Mississippi River and containing Four hundred and forty-two (442) acres, more or less; * * *.'

3. The act of sale dated April 21, 1910 by Albert Phenis to Ray C. Power, the property therein described being the same as contained in the Dusenbury-Phenis deed of March 9, 1910.

4. The correction deed dated March 16, 1912 by Albert Phenis to Ray C. Power, purportedly correcting the description contained in the Phenis to Power deed of April 21, 1910 so as to read the same as shown below in the Dusenbury-Phenis correction deed of April 18, 1912.

5. The correction deed dated April 18, 1912, by Allan T. Dusenbury to Albert Phenis purportedly correcting the description contained in the Dusenbury-Phenis deed dated March 9, 1910 so as to read as follows:

'That portion of lot or Fractional section 40 lying West of the section line between Sections seven (7) and eight (8) above produced and south of a line drawn West from a point on the center line of the Morgan's Louisiana and Texas Railroad Co., said point being 600...