Bodcaw Lumber Company of Louisiana v. Pardee Company
| Decision Date | 21 October 1925 |
| Docket Number | 1922 |
| Citation | 3 La.App. 162 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | BODCAW LUMBER COMPANY OF LOUISIANA v. THE PARDEE COMPANY |
Rehearing Refused December 10, 1925.
Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, Hon. J. E. Reynolds, Judge.
This is a suit brought under Act 38 of 1908 in order to have the plaintiff declared the owner to certain wild land of which no one has the actual physical possession. There was judgment for plaintiff, who was declared to be the owner of the land in dispute and defendant appealed. In the Court of Appeal the defendant filed a plea of estoppel and an exception no cause of action. Plea of estoppel and exception no cause of action overruled and judgment of the lower court affirmed.
Judgment affirmed.
Henry Moore, Jr., and White, Holloman & White, of Alexandria attorneys for plaintiff, appellee.
Hawthorn and Stafford, of Alexandria, attorneys for defendant appellant.
And it is further alleged:
"Plaintiff is obliged to commence judicial proceedings against defendant, and has notified its vendor, Stephen L. Norman, of this action which it is commencing, and has called on him to conduct this suit, and reserves the right to sue him for an indemnification in case plaintiff fails herein."
It prays for judgment decreeing it to be the owner of the land described and that its rights against its vendor, Stephen L. Norman, be reserved, and that its right to amend and claim the value of timber cut and removed from the land, if any, be reserved.
Defendant, in answer, denied that plaintiff owns the land described for various reasons especially set out which we do not deem it necessary to mention under the view which we have taken of the case, but it admits that it claims to own the land described in plaintiff's petition and admits the land is not now in the possession of anyone. It also admits that it has cut and removed some timber from the land and expresses willingness to pay for same in case plaintiff should be adjudged the owner of the land.
This answer was filed on September 15, 1922.
The case was set down to be tried on Monday, November 20, 1922, and on that day Stephen L. Norman, plaintiff's vendor, filed in court what he styles a petition of intervention setting out that he had sold the land in dispute with other land to the plaintiff in the case under a warranty deed and that as such warrantor he was interested in the result of the case and therefore had a right to intervene and set up the title under which he held together with his possession and that of his vendor's and he joins the plaintiff in this suit and adopts as his allegations all the allegations of the plaintiff's petition and adopts the chain of title set up by the plaintiff in article four of its petition; and in addition thereto sets out that in 1899 he purchased the land from W. M. Cloud and wife and went into possession of the said property by clearing and fencing a portion thereof and that said Cloud, his vendor, had likewise exercised ownership thereof by building a house thereon and that they transferred their possession to him; and he alleges possession by all the various owners of the land back to the government and introduces a plea of prescription of ten years in bar of defendant's right and in aid of his own title.
He prayed that plaintiff be decreed owner of the land in dispute.
There was judgment for the plaintiff decreeing it to be the owner of said property and entitled to the possession thereof, and defendant appealed.
In this court the defendant has filed a plea of estoppel and an exception of no cause of action.
ON THE PLEA OF ESTOPPEL.
which allegation was specifically adopted by the warrantor, they are estopped from showing on the trial that any one ever had possession of the said land, on the ground that they cannot be heard to dispute their judicial allegation.
In other words, as the plaintiff and its warrantor have judicially admitted that the land is not now occupied they cannot now introduce proof of previous possession in order to support warrantor's plea of prescription.
We do not think counsel's position well taken.
The fact that the land is now wild and is not now in the actual corporeal possession of anyone by no means implies, as we see it, that the land has always been wild and that no one has ever occupied it.
We know from experience and observation that there are thousands of acres of land in this country which at the present time are not physically occupied by anyone, are covered with second growth timber, but which lands at one time were in cultivation.
Act No. 38 of 1908 authorizes suits to test title between claimants where none of the parties are in actual possession of the land; which means, of course, possession at the time the suit is brought.
Under that act a suit may be brought to test title to a piece of land on which a residence is situated if no one is actually occupying it and in possession thereof; and in order to set out a cause of action the plaintiff must allege that the real estate is not in possession of anyone. Surely in making such an allegation he would not preclude himself from proving previous occupancy as a basis of prescription in support of his title.
The passage of Act 38 of 1908 was made necessary on account of a peculiar condition brought about by the provisions of the Code of Practice with reference to possessory and petitory actions.
Under the Code a claimant of real estate cannot bring a possessory action unless he has actual possession and cannot bring a petitory action unless the other claimant is in actual possession.
Therefore if no one was in possession there could be no suit to test title prior to the passage of Act 38 of 1908.
The only purpose of the act, as we see it, was to permit suits to test title to real estate in cases where no one is in actual possession.
But that act did not change the laws with reference to land titles nor alter in any respect the rules of procedure with reference to the establishment of the claim of either litigant in a judicial proceeding.
When suit is brought under Act 38 of 1908 the door is open to either claimant of the land to introduce any relevant testimony in support or aid of his title and as prescription is one of the modes of acquiring title to real estate either claimant may show previous possession of the property in support of his title.
If counsel's position be correct, the only testimony legally admissible in a suit of this kind is record evidence. Therefore a title based on prescription of thirty years could not avail a claimant unless someone were in actual possession of the land.
So it would be a remarkable rule, indeed, which would say to a claimant of land not actually possessed by anyone, that in order to get into court to assert his claim he must allege that the land is not now occupied, and then to say to him that inasmuch as he has alleged that the property is unoccupied he cannot prove his title.
The plea of estoppel is overruled.
ON EXCEPTION OF NO CAUSE OF ACTION.
This exception is levelled at the intervention of Norman, plaintiff's vendor and warrantor. Counsel for defendant contend that under Act 38 of 1908 no one can be heard or permitted in the suit except the claimant of the land, and that inasmuch as Norman does not set up title in himself but specifically alleges that the plaintiff owns the land, he must be dismissed from the suit.
and contend that all parties who are not claimants are barred.
They also cite the case of Fortner's Heirs vs. Good Pine Lumber Co., (Mrs. Ezell, intervenor) 146 La. 11, 83 So. 319.
The cited case is no authority for dismissing the intervenor from this case.
In that case Mrs. Ezell intervened, set up title in herself and asked judgment against both plaintiff and defendant decreeing her to be the owner of the property.
The court held that under Act 38 of 1908 the issues must be tried out as between the plaintiff and defendant, and Mrs. Ezell's intervention was dismissed on the ground that she claimed title in herself as against both plaintiff and defendant, thereby changing the issues entirely.
In the case at bar, Norman is the plaintiff's vendor and warrantor. The plaintiff notified him of the action which it had brought against the defendant and called on him to conduct the suit. He therefore came in not as an outsider but joined plaintiff to maintain the title which he had conveyed and warranted. In a sense he is the real plaintiff in the suit. He is an intervenor in the suit,...
To continue reading
Request your trial