Dixon v. Zemurray

• Decision Date: 30 June 1955
• Docket Number: No. 4064,4064
• Citation: Dixon v. Zemurray, 82 So.2d 281 (La. App. 1955)
• Parties: August DIXON v. Samuel ZEMURRAY. Samuel ZEMURRAY v. August DIXON.
• Court: Court of Appeal of Louisiana

Page 281

82 So.2d 281

August DIXON v. Samuel ZEMURRAY.

Samuel ZEMURRAY v. August DIXON.

No. 4064.

Court of Appeal of Louisiana, First Circuit.

June 30, 1955.

Rehearing Denied Sept. 15, 1955.

Reid & Reid, Hammond, for appellant.

Ponder & Ponder, Amite, for appellee.

ELLIS, Judge.

Plaintiff, claiming to be the owner of certain land in Tangipahoa Parish by prescription of thirty years acquirenda causa, instituted a possessory action to be maintained and quieted in his possession of said land described as the SE 1/4 of NE 1/4 of Section 33, Township 4 South Range 9 East naming as defendant Samuel Zemurray. This suit was filed on April 10, 1951, and on June 18, 1951, Zemurray in turn brought suit against August Dixon claiming that Dixon was merely his tenant who had been in default of the payment of rent for the past three years, and that he as the owner was entitled to proceed by way of rule to evict Dixon.

Upon Dixon's death, Harriet Dixon, as surviving widow in community and sole heir, was instituted as party plaintiff, and as party defendant in the Zemurray suit.

The defendant to Zemurray's eviction proceeding was the thirty years possession on which Dixon's action was based and a denial of any lessor-lessee relationship. In the alternative Harriet Dixon prayed to be allowed to recover the sum of $3,000, the alleged value of the improvements placed upon the property by her deceased husband.

The cases were consolidated for trial below and resulted in a judgment in favor of Harriet Dixon and against Zemurray, but upon rehearing judgment was rendered dismissing the suit filed by August Doxon and further judgment in favor of Zemurray ordering and commanding the substituted defendant, Harriet Dixon, to vacate the land in dispute and surrender same to Zemurray, but reserving to her the right to remove from the property such of the improvements placed thereon as could be legally moved. Appeals were perfected from both judgments to the Supreme Court which, upon hearing, transferred same to this court.

Counsel for appellant and appellee in the trial of the case, as well as in their brief and in argument before this Court attempt to treat Dixon's suit as a petitory action when, as a matter of fact, it is clearly and distinctly nothing more than a possessory action. The allegations of the petition and the prayer which is controlling request a 'judgment in favor of petitioner, August Dixon, and against Samuel Zemurray, maintaining and quieting your petitioner in the possession of said property.'

The position taken by counsel is based upon the case of A. M. Edwards Co. v. Dunnington, La.App., 58 So.2d 225, in which this court stated that the action in that case was hard to classify in that it partook of both the petitory and possessory action. This is not true in the case at bar. In the Edwards case the Court further stated that the litigants and the trial judge in his written reasons had treated the action as a petitory one and we therefore so treated it. There is no doubt as to the nature of Dixon's suit and it was never legally converted into a petitory action. As a matter of fact, counsel for Zemurray in making an offering of title specifically stated that same was not made for the purpose of converting the suit into a petitory action. Dixon's suit, therefore, can only be treated as a possessory action.

While Dixon alleged that he was the owner of the SE 1/4 of NE 1/4 of Section 33 Township 4 South Range 9 East, and that he had acquired this property during the year 1915 at which time he purchased a residence and moved it onto said property where he lived with his family and that he had been in the actual physical possession of said premises since that date under a claim as an heir of an aunt, Ellen Lott, whom he alleged had entered the property from the United States Government, there is not one iota of proof in the record to substantiate this claim or ownership.

Dixon further alleged that in the year 1919 he was disturbed in his possession by the Houlton Lumber Company in that the Houlton Lumber Company claimed to have an interest in the property and demanded that he purchase same, and that he, Dixon, purely for the purpose of quieting his title, complied with the demand of the Houlton Lumber Company by paying a cash amount and thereafter monthly payments which were deducted from the wages he earned from Houlton Lumber Company. Dixon then alleged that after the full amount of the unalleged purchase price was deducted, no further demands were made on him and he presumed his title to said property had been quieted and that the interest of all adverse claimants had been fully settled and that the title to the property rested in him.

There is no contention that the plaintiff, Dixon, does not set forth a cause for a possessory action, however, the defendant, Zemurray, specifically denied that he was possessing as owner, and, on the contrary, set forth that he was possessing under an agreement to purchase which counsel for defendant, Zemurray, designates an 'option to buy.'

The pertinent articles of the Code of Practice relating to the possessory action are as follows:

'47. Parties plaintiff.--The possessors entitled to bring these actions are those who possess as owner.

'Persons entitled to the usufruct or to the use of a real estate, and others having real rights growing from such real estate, may also bring their action, when disturbed in the enjoyment of their rights.'

'48. Persons holding possession in name of another not entitled to maintain action--Notice to landlord.--Those who possess in the name of another, such as tenants, are not entitled to the possessory action, when disturbed in the enjoyment of the real estate which they possess in that quality, or even when they are expelled; but they have their remedy against the person in whose name they possess, and they are bound to apprise him of the disturbance they have experienced, by personal notice, if he be within the State, and by advertisements in the newspapers, if he be out of the State, in order that he may quiet them if it can be done; otherwise they lose all right to claim damages from him, and will be liable to him besides for all the loss and damages which he may have sustained through their neglect.'

'49. Essential elements of possessory action.--In order that the possessor of a real estate, or one who claims a right to which such estate may be subjected, may be entitled to bring a possessory action, it is required:

'1. That he should have had the real and actual possession of the property at the instant when the disturbance occurred; a mere civil or legal possession is not sufficient;

'2. That he should have had that possession quietly and without interruption, by virtue of one of the titles prescribed in the forty-seventh article, for more than a year previous to his being disturbed; provided the possession of less than one year be sufficient, in case the possessor should have been evicted by force or by fraud;

'3. That he should have suffered a real disturbance either in fact or in law;

'4. That he should have brought his suit, at the latest, within the year in which the disturbance took place.

'When the possession of the plaintiff is accompanied with all those circumstances, it matters not whether he possesses in good or in bad faith, or even as a usurper, he shall nevertheless be entitled to his possessory action.'

There can be no dispute from the testimony in this case but that the plaintiff on Nov. 24, 1919 entered into a contract with Houlton Lumber Company with regard to the S/2 of SE/4 of NE/4 of Section 33, Township 4 South Range 9 East, containing 20 acres, and which it can readily be discerned comprises the south half of the 40 acres described in Dixon's petition. It is further overwhelmingly proven that immediately thereafter Dixon built a home and fences and other improvements such as a barn and corn cribs on 29.62 acres of land in the SE/4 of NE/4 of Section 33 Township 4 South 9 East, and lived there until his death. Dixon has proven more than thirty years actual, open, corporeal possession of the 29.62 acres. His proof satisfies every requirement of Article 49 but fails to entitle him to bring this possessory action as he has failed to prove that he possessed as is required under Article 47, supra.

Introduced in evidence is the original contract entered into by August Dixon with the Houlton Lumber Company on November 24, 1919 and it reads and contains the following:

'Uneedus, La., 11/24/29.

Received of August Dixon Fifty Dollars ($50.00) as earnest money and part payment for the South half of the South east Quarter of the Northeast Quarter of Section, 33, Township 4, Range 9.

Purchase price to be Three Hundred and Twenty (320.00) Dollars the balance Two Hundred and Seventy-(270.00) Dollars to be paid in 1, 2, and 3 years according to 3 Promissory Notes Dated November 24, 1919., and drawing interest at the rate of 6% per annum.

Upon the payment of the notes with interest and Taxes the Houlton Lumber Company will give to August Dixon a Warrantee Deed for the above described lands reserving the Oil and Mineral rights on said land.

Witnesses:

C. W. Ramsey

A. B. LeBourgeois

Houlton Lumber Company,

By C. H. Houlton

August Dixon

Section 33

Township 4

S Range 9 E

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

In the case of Williams v. Harmanson, 41 La.Ann. 702, 6 So. 604, 605, the Court stated:

'The contention of defendants, that by the allegation of a particular title the plaintiffs converted their action into a petitory one, and were thereby bound to establish such title as good and valid, is not sound. If, indeed, the title thus exhibited showed on its face that the possession based thereon was not as owner, as required by Code Prac. art. 47, it might be fatal to the possessory action, as was held in the case last quoted. But the mere allegation of a title of ownership, not produced or relied on...