Dugas v. Powell

• Decision Date: 31 March 1941
• Docket Number: 35887.
• Citation: 1 So.2d 677,197 La. 409
• Court: Louisiana Supreme Court
• Parties: DUGAS et al. v. POWELL et al.

1 So.2d 677

197 La. 409

DUGAS et al. v. POWELL et al.

No. 35887.

Supreme Court of Louisiana

March 31, 1941

O'Niell & O'Niell, A. H. Reed, H. M Ansley, and John C. Hollingsworth, all of New Orleans, for appellants.

Deutsch and Kerrigan, of New Orleans, for appellee Edgar H Powell.

Alexis Brian, of New Orleans, in pro. per. and for appellees E. P Brady and others.

ODOM Justice.

This is a suit brought by 1,079 individuals to establish title to real estate, under Act 38 of 1908. The tract of land involved is situated in the Parish of Jefferson, and it is alleged that neither plaintiffs nor defendants are in actual physical possession of the property.

In addition to the original, plaintiffs filed two supplemental petitions. These petitions are quite lengthy, covering about 200 pages of the record. We need not discuss plaintiffs' allegations in detail further than to say that they alleged in substance, that the tract of land which they claim was owned by Francois Zenon Boutte when he died intestate in the year 1863, and they trace his title through mesne conveyances back to an act of purchase dated July 8, 1705, and allege that the various acts of transfer are recorded in the conveyance records of Jefferson Parish, where the land is situated.

Plaintiffs alleged that they are the true and lawful owners of the property, having acquired it by inheritance from the said Francois Zenon Boutte, they being his sole and only heirs.

At length and in detail, plaintiffs set out the fractional interest owned by each of them. The suit is brought against 162 named individuals who, plaintiffs allege, claim to own specified fractional interests in the said land, and against Edgar H. Powell and Alexis and A. Morgan Brian, who, plaintiffs allege, claim to have acquired interests in the property by purchase from the 162 first-named individuals. They alleged that:

'* * * said defendants base their claims upon a purported judgment, dated June 26, 1936, rendered in the Proceedings No. 11,842 of the docket of this Court, recorded in the Clerk's office of Jefferson Parish, in Conveyance Book 129, at Folio 598, and that Alexis Brian and A. Morgan Brian, both of the Parish of Orleans, State of Louisiana, claim to be the owners, jointly, of a 571/2304 interest in the said property, by virtue of a purported deed from the said Edgar H. Powell, dated June 26th, 1936, recorded in Conveyance Book 129, at Folio 607.'

Edwin P. Brady was made a defendant in the suit, plaintiffs alleging that he claims to have acquired certain interests in the property from the Brians.

In the original petition, plaintiffs alleged that the 162 named individuals were represented in this state by Brian & Brian, attorneys, and they prayed that those individuals be cited through their agents and attorneys in fact. The citation addressed to those individuals was served on the Brians. Thereafter, the Brians filed in court a pleading in which they denied that they represented the 162 individuals. Counsel for plaintiffs acquiesced in the pleading filed by the Brians, and the suit against that group of defendants was dismissed. No further effort was made to cite those individuals, so that the suit, as it is now presented, is against Powell, the Brians, and Edwin P. Brady only.

In their first supplemental petition, counsel for plaintiffs added some 60 or 70 names to the original list of claimants, and this gives rise to certain exceptions filed by the defendants Powell, the Brians, and Brady.

Defendants filed a plea to the jurisdiction of the court ratione personae, an exception of misjoinder and non-joinder of parties, an exception to the citation, an exception of vagueness, and an exception of no cause of action.

The trial judge in his written reasons for judgment mentioned these exceptions and said:

'* * * and the Court being of the opinion that the exceptions are well taken, and well founded in law and in fact and should be maintained, and more particularly the exception of no cause or right of action should be maintained.'

It was ordered that the exceptions, 'and more particularly the exception of no cause of action', be maintained and the suit dismissed. From this judgment plaintiffs appealed.

The trial judge in his written reasons for dismissing plaintiffs' suit laid special emphasis on the exception of no cause of action, and that is the exception which is especially stressed in this court. This exception is predicated upon the contention that plaintiffs may not advance their claim to ownership of the property as heirs of Francois Zenon Boutte without first bringing a direct action to set aside the judgment mentioned by them in their pleadings, as quoted above. The contention of counsel for defendants is that the validity of that judgment cannot be collaterally attacked in an action of this kind.

The only reference which plaintiffs made in their petitions to that judgment is the allegation that:

'* * * said defendants base their claims upon a purported judgment, dated January 26, 1936, rendered in the Proceedings No. 11,842 of the docket of this Court, recorded in the Clerk's office of Jefferson Parish, in Conveyance Book 129, at Folio 598.'

Counsel for defendants argued orally before the court, and it is stated in brief, that, until directly attacked, that judgment must be recognized 'to the exclusion of the plaintiffs' claims as the alleged heirs of the deceased Boutte'.

Neither the judgment referred to nor the proceedings leading up to its rendition are in this record. Plaintiffs did not make them a part of their petition by reference or otherwise. They go no further than to state that defendants base their claim to title on that judgment.

We are informed by counsel, not by the pleadings filed, that the judgment referred to was rendered in an ex parte proceeding brought by the 162 individuals mentioned above to have themselves recognized as the heirs of Francois Zenon Boutte, and that they were recognized as such and decreed to be the owners of the property.

In passing on the merits of an exception of no cause of action, courts may consider only the well-pleaded facts set out in the petition. But, conceding that the judgment referred to did recognize the named individuals as the heirs of Francois Zenon Boutte and, therefore, the owners of the property involved, our opinion is that it was not necessary for plaintiffs to attack that judgment in a direct action before bringing their suit.

In Davidson v. McDonald et al., 131 La. 1047, 60 So. 679, it was held that an action in which plaintiffs seek to recover, and pray to be decreed the owners of, real estate, and which purports to be brought under Act 38 of 1908, differs from the petitory action only in the allegation that defendant is not in possession, and that such action does not differ from the petitory action in the matter of the obligation of the plaintiffs to establish the title set up by them.

In Metcalfe et al. v. Green et al., 140 La. 950, 74 So. 261, it was held that Act 38 of 1908, being an act to authorize suits to establish title to real estate, contemplates a suit in which the litigants come before the court on equal terms and subject only to the ordinary rules in regard to the burden of proof.

In Griffing et al. v. Taft, 151 La. 442, 91 So. 832, 833, it was held that:

'Act 38 of 1908 was intended as a particular form of action to adjudicate titles to real estate, where neither of the claimants is in actual possession of the land. In such action the judge is called upon to decide which of the claimants is the owner of the land in dispute.'

In Smith v. Chappell, 177 La. 311, 148 So. 242, 244, the court said:

'A petitory action is one brought by an alleged owner of real estate who is out of possession against another having possession to determine ownership. The settled jurisprudence of this state is that a plaintiff in a petitory action, in order to recover, must rely on the strength of his own title and not on the weakness of that of his adversary. In order to maintain his suit, he carries the burden of proving title in himself. The title of the defendant is not an issue until plaintiff has proved an apparently valid title in himself.'

In support of these general rules, the court cited a long list of cases.

In a petitory action, in order to maintain his suit, the plaintiff carries the burden of proving title in himself, and must rely on the strength of his own title and not on the weakness of that of his adversary. The same rule applies to suits brought under Act 38 of 1908.

The case of Beland and Johnson v. Gebelin and Duggan, 46 La.Ann. 326, 14 So. 843, 844, was a petitory action brought by plaintiffs, who alleged that they were the sole heirs of their mother and father, and that as such they owned certain real estate. They alleged that said property had passed into the hands of the defendants as a result of certain proceedings taken by the public administrator, who had ex parte 'procured an order to sell property to pay debts', and that such proceedings were null for reasons specifically set out in the petition.

Defendants excepted to plaintiffs' petition on various grounds, alleging that the proceedings and sales under which the property passed into their hands could not be 'attacked collaterally, but plaintiffs must institute a direct action to revoke and annul them and make proper parties thereto'. The trial judge sustained the exceptions and dismissed plaintiffs' suit. On appeal the judgment was annulled. In the course of its opinion, this court said:

'There is no doubt as to the legal necessity, under certain circumstances, of bringing direct actions to annul judicial proceedings and decrees contradictorily with the parties legally...