Brown v. Broussard

• Decision Date: 01 July 1891
• Docket Number: 1410
• Citation: 9 So. 911,43 La.Ann. 962
• Court: Louisiana Supreme Court
• Parties: CHARLES H. BROWN, TUTOR, ET AL. v. EDMONIA BROUSSARD, WIFE, ET AL

9 So. 911

43 La.Ann. 962

CHARLES H. BROWN, TUTOR, ET AL. v. EDMONIA BROUSSARD, WIFE, ET AL

No. 1410

Supreme Court of Louisiana

July 1, 1891

APPEAL from the Thirteenth District Court, Parish St. Landry. Lewis, J.

W. S Frazee and Thos. H. Lewis, for Plaintiffs and Appellees.

Kenneth Baillio, for Defendants and Plaintiffs.

OPINION

FENNER, J.

This is a petitory action brought by the heirs of Antoine Ynogosa to recover from the defendant a certain tract of land in possession of defendants which they aver was the property of their ancestor and has never been alienated by him.

The defendant claims as owner under a chain of titles running back to Ynogosa, and also pleads the prescriptions of thirty and of ten years.

Ynogosa acquired the land by purchase from the estate of Widow Jean Savoie in 1829 by a deed which describes the land as follows:

"A tract of land situated, lying and being in the aforesaid parish on the Bayou Carancro, bounded on one side by land of Augustin Guidry and on the other side by land of John H. H. Smith, having seven arpents front by forty arpents in depth -- together with the dwelling house and yard fence thereon, reserving all other improvements thereon, being the same tract of land on which the said deceased last resided.

"And also sixty arpents of woodland, that is to say three arpents front by twenty in depth, bounded on one side by land of Widow David Guidry and on the other side and on one end by land of Jean Savoie."

In 1848, Ynogosa sold to Joseph and Neville Boudreau by the following description which we translate from its original French: "A certain tract of land established as a plantation, situated on the Bayou Carencro, measuring four arpents front by twenty in depth, being the northwest side of said bayou on the T. 8. S. or R. 4. E described on a plan made by John Denismore, dated April 14 1811, and delivered by said vendor to the said Boudreau, and bounded on one side by the plantation of John H. H. Smith, and on the other by the public domain, together with all the buildings thereunto appertaining, and also a certain piece of woodland situated and lying on the same bayou containing thirty superficial arpents bounded on the east by Raphael Richard, on the north by Achille Savoie, on the south by J. A. Guidry, on the west by land of the vendor, being the same lands acquired by the vendor at the auction of Widow Jean Savoie about the year 1830."

The price was the gross sum of $ 2500. The first question that presents itself is whether this was a sale per aversionem or a sale of so many acres.

Plaintiffs claim that it simply transferred four arpents front out of the seven arpents front owned Ynogosa, and that the remaining three arpents front by forty in depth were not conveyed, but remained the property of their said ancestor.

The defendant claims that it was a sale per aversionem of the whole tract purchased by Ynogosa from the estate of Savoie as declared in the act, which, as a whole, was "established as a plantation," as also declared in the act.

The description of the thing sold is obscure and ambiguous. The Code, Article 2474, declares: "The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him."

Upon its face the sale was intended to be per aversionem. It is made for a gross sum and is described by specific boundaries. Johnston vs. Quarles, 3 La. 91; Curator vs. Wells, 4 La. 536.

If the northern boundary had been correctly stated as being bounded by lands of Guidry, there would have been no room for dispute. The erroneous statement of the number of arpents front could, in that case, have made no...