Clement v. Dunn
Decision Date | 25 March 1929 |
Docket Number | 29544 |
Citation | 168 La. 394,122 So. 122 |
Court | Louisiana Supreme Court |
Parties | CLEMENT v. DUNN |
Rehearing Denied April 22, 1929
Appeal from Fifteenth Judicial District Court, Parish of Acadia; W W. Bailey, Judge.
Suit by Jules Clement, Sr., against Lindsey H. Dunn. Judgment for plaintiff, and defendant appeals.
Reversed and rendered.
Cullen R. Liskow, of Lake Charles, and Val Irion, of New Orleans for appellant.
John B. Fournet, of Jennings, Gus A. Llambias, of New Orleans, and Chappuis & Chappuis, of Crowley, for appellee.
OPINION
On Appellee's Motion to Fix Case for Argument Before Another Case Pending.
The plaintiff in this suit and his wife, Mrs. Marie Anais Doucet, joined the present defendant as plaintiffs in a suit against the Gulf Refining Company of Louisiana et al., to annul an oil and mineral lease executed by Jules Clement, Sr., and his said wife, in favor of S. A. Spencer & Co., affecting fractional sections 46 and 49, township 9 south, range 2 west, Acadia parish, La.
The said suit was filed in the Fifteenth Judicial district court on October 3, 1927. On May 18, 1927, approximately five months before that suit was filed, the plaintiff signed an act, which, it is alleged, purports to be a sale, to defendant, of fee simple title and mineral interest in the aforesaid land. On October 17, 1927, the plaintiff and his wife, Marie Anais Doucet, as coplaintiffs in the suit of Jules Clement, Sr., et al. v. Gulf Refining Company et al., filed a motion in said suit in which they alleged:
On the same day the foregoing motion was filed, plaintiff instituted the present suit, wherein he alleges that the said act of May 18, 1927, purports to be a sale of the fee and mineral interest of the plaintiff in the property, to the defendant, and he attacks that act upon the grounds of fraud, misrepresentation, etc.
The motion of the plaintiff and his wife, Marie Anais Doucet, to withdraw as plaintiffs in the suit against the Gulf Refining Company et al., and to have the demands they made in that suit dismissed, as to them, was excepted to by the defendant in this suit. In due time this exception was heard and overruled, and judgment was rendered dismissing that suit as to Jules Clement and his said wife. From this judgment the defendant in this suit appealed. After the appeal was perfected and the transcript was filed, the defendant applied to this court and obtained an order placing the case on the preference docket. A motion was made to remand the case. This motion was heard and denied. In the meantime, the present case was tried in the district court, and, from a judgment of that court annulling the purported act of sale from Clement to Dunn of date May 18, 1927, the defendant appealed. Upon the lodging of the transcript of appeal in this court, the plaintiff filed the following motion in both of said cases, viz.:
"Now into this Honorable Court, through his undersigned counsel, comes Jules Clement, Sr., appellee in the above numbered causes, and, on suggesting that at the instance of Lindsey H. Dunn, appellant, the said causes have been advanced and placed on the preference docket of this Court, respectfully moves that in fixing the said causes for argument, that of Clement v. Dunn, No. 29544, be ordered fixed first, so that the same may be heard and finally disposed of before that of Jules Clement et als. v. Gulf Refining Co. of La. et als., No. 29078, is fixed for argument, and for cause of this motion your mover respectfully shows:
I.
A rule to show cause why these motions should not be granted, issued in each case. No return has been made to either rule, and the matter is submitted in that form.
We have considered the record in both cases and find that the motion to hear and determine the issues presented in the case of Jules Clement, Sr., v. Lindsey H. Dunn, No. 29544 of the docket of this court, by preference and prior to the assignment and submission of the case of Jules Clement et al. v. Gulf Refining Company of Louisiana et al., No. 29078 of the docket of this court, is well founded, and, for the reasons stated in the motion, it is ordered that the rule issued herein be perpetuated, and that this case be fixed for argument, and that it be heard and disposed of by preference and before the case of Jules Clement et al. v. Gulf Refining Co. of Louisiana et al., [1] 169 La. --, 124 So. --, No. 29078 of this court's docket.
On the Merits.
May 18, 1927, the plaintiff and defendant executed an instrument before a notary and three witnesses, the first and concluding part of which purported to sell to the defendant an undivided one-fourth interest in 106 acres of land. On
The intervening provisions and declarations of said instrument evidenced a sale only of an undivided one-fourth interest in and to all oil, gas, and other minerals which may be produced from 30 acres of said land below a depth of 2,200 feet, and a one-fourth interest in all of the oil, gas, and other minerals which may be produced from 76 acres of said land without regard to the depth from which such oil, gas, or other minerals may be produced.
Assuming that the said instrument conveyed a fourth interest in the land together with the minerals, the plaintiff filed this suit to have said instrument decreed to be null and void in its entirety and as conveying neither the land nor the minerals.
In the original petition it is alleged that there was no meeting of the minds because the defendant, Dunn, represented to petitioner that he (petitioner) was selling only the minerals in the land, whereas it was intended on the part of said Dunn to acquire the fee simple to the land.
In a supplemental petition it is alleged that petitioner's signature to the instrument was obtained by fraudulent representations of said Dunn as to the contents of same.
That the said Dunn well knowing that petitioner could not read or write when called upon to read and explain the said document, the said Dunn pretended to read the whole instrument, but purposely withheld that portion which conveyed the fee.
The defendant by answer denied the allegations of fraud and misrepresentation, and denied that the instrument conveyed a fee simple interest in the land, and averred that the act conveyed, and was only intended to convey, an undivided interest in the minerals.
In the alternative it is averred that, if it should be held that the instrument evidenced a sale of an interest in the land, then there was a mutual error, and that the said instrument should be reformed so as to express the intent of both parties, which was the sale and purchase of an undivided interest only in the minerals.
There was judgment in the court below annulling the instrument and ordering the price paid, which was $ 5,300, returned to the defendant.
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...this misapprehension, we should not have delayed decision on the motions to dismiss, but should have sustained them. See Clement v. Dunn, 168 La. 394, 122 So. 122; Coyle, et al. v. North American Oil Consolidated, et al., 201 La. 99, 9 So.2d Then motions for summary judgment under Federal R......
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... ... Knobloch & Rainold, 144 La ... 100, 80 So. 214; Rodgers v. S. H. Bolinger Co., 149 ... La. 545, 89 So. 688; Clement v. Dunn, 168 La. 394, ... 122 So. 122; Boisseau v. Vallon & Jordano, Inc., 174 ... La. 492, 141 So. 38; Smith v. Chappell, 177 La. 311, ... ...
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... ... Goldsmith v. McCoy, 190 La. 320, 182 So. 519; Iberville Land Co. v. Texas Co., 14 La.App., 221, 128 So. 304; Clement v. Dunn, 168 La. 394, 122 So. 122; Coyle et al. v. North American Oil Consolidated et al., 201 La. 99, 9 So.2d 473 ... We conclude ... ...
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... ... In such construction neither word nor clause in an instrument may live if it runs counter to the purport and tenor of the whole. Clement v. Dunn, 168 La. 394, 122 So. 122. In that case though the instrument in one clause expressly declared that it conveyed a fourth interest in the ... ...