Erskine Heirs v. Gardiner

• Decision Date: 02 October 1928
• Docket Number: 29008
• Citation: 118 So. 453,166 La. 1098
• Court: Louisiana Supreme Court
• Parties: ERSKINE HEIRS v. GARDINER

118 So. 453

166 La. 1098

ERSKINE HEIRS v. GARDINER

No. 29008

Supreme Court of Louisiana

October 2, 1928

Appeal from Twenty-Fifth Judicial District Court, Parish of Plaquemines; J. Claude Mereaux, Judge.

Suit by the Erskine heirs against Mary Alice Gardiner. From an adverse judgment, defendant appeals.

Reversed and rendered.

Wm Winans Wall, of New Orleans, for appellant.

Merrick Schwarz, Guste, Barnett & Redmann, of New Orleans (Morris B Redmann, of New Orleans, of counsel), for appellees.

OPINION

ST. PAUL, J.

We annex a rough sketch of the lands involved in this controversy. It is not drawn to scale; to be so, the depth of the land from east to west should be double the front thereof from north to south. But, as it is, it is sufficiently clear for the purposes of the controversy. The particular matter involved is the title to tract H, being the western or rear 40 acres of the lower or southernmost 9 arpents' frontage on the river.

(SEE DRAWING IN ORIGINAL)

I.

Plaintiffs, 10 in number, are the sole heirs of William Erskine and Ernestine Erskine, his wife. They bring this suit to annul certain confirmations of title given by them to defendant, and to be declared the owners of an undivided half of tract H on the above-mentioned sketch.

To this petition defendant pleaded want of jurisdiction in the district court of Plaquemine parish, where the land is situated. As the suit relates exclusively to the title and ownership of immovable property, it was properly brought in the parish where the property was situated. C. P. art. 163; Thompson v. Calcasieu Tr. & Say. Bank, 140 La. 264, 72 So. 958, and authorities there cited; Smart v. Bibbins, 109 La. 986, 34 So. 49.

Defendant also excepts that there is a misjoinder of parties plaintiffs, because the various confirmations were not in one act, but by separate acts, all executed at different times. The plea is not well founded. All the acts had but one purpose in view, and were all executed about the same time; the object of all parties is the same, to wit, to set aside those confirmations and to be recognized as joint owners of one undivided half of the lands. "The test to be applied in considering a plea of misjoinder is whether the parties, plaintiffs or defendants, have a common interest in the subject-matter of the suit, * * *" and "after all, the matter was within the sound discretion of the trial judge." Reardon v. Dickinson, 156 La. 556, 100 So. 715, citing Gill v. City of Lake Charles, 119 La. 17, 43 So. 897, and other authorities.

Another exception is that it is inconsistent on the part of the plaintiffs to urge both that their confirmation does not cover the land in controversy and that same was obtained for less than half the values of the land involved. To this it suffices to say that the confirmations are annexed to the pleadings, and taken in connection with the adjudication which they purport to confirm, they show that they do cover the land in controversy, and, as the documents speak for themselves and control the allegations of the petition (Bonura & Go. v. United Fruit Co., 162 La. 53, 110 So. 86), it follows that this objection to the petition falls of its own weight. For the rest, the other allegation, to wit, that the confirmations were obtained for less than half the values of the land involved, shows no cause of action, since the plea of lesion beyond moiety has no application to a sale or ratification or confirmation relating to speculative interests and conjectural rights to immovables, but only the sale of immovables, where the right is clear and the possession undisputed. Fernandez v. Wilkinson, 158 La. 138, 103 So. 537. We will therefore give no further consideration to this part of the petition, the more so as there is nothing in the evidence to show that plaintiffs' half interest in the land is worth more than the price received by them for the confirmation. Cf. Fernandez v. Wilkinson, supra.

The plea of estoppel merges into the merits of the case; if the confirmations are valid, then plaintiffs are estopped by them; otherwise not.

And the plea of no cause of action need not be considered, since it is leveled at the proposition that an action for rescission for lesion beyond moiety does not lie as to a sale by heirs of their succession rights to a stranger; for, whether this contention be sound or unsound, as to which we express no opinion, we have none the less effectively disposed of plaintiffs' proposition by holding above that the action for rescission on account of lesion beyond moiety does not lie at all in a case like this, where the rights sold are merely speculative and conjectural.

II.

Miss Gardiner, the defendant, derives her title from James Wilkinson, who had derived his title from Mrs. Carmen Lesseps. Her first defense is that she has no need of the confirmation given her by the heirs of Erskine, as Mrs. Lesseps had already a good and valid title to the land.

This is quite true, if Mrs. Lesseps acquired anything at all by the adjudication made to her by C. E. Gerardey, auctioneer, on June 24, 1876, in the partition suit brought by Joachim Borde v. Widow of Wm. Erskine, et al., "Mrs. J. A. (Carmen) Fernandez, a third person, appellant," 33 La.Ann. 873; the said Joachim Borde being the assignee of John Erskine, one of the four universal legatees of William Erskine, the other three universal legatees (of the one undivided half belonging to William Erskine) being his wife, Ernestine Erskine, and his two other children, Mary Erskine and Clementine Erskine; and the other undivided half thereof belonging in equal shares to George Urquhart and his wife, Mrs. George Urquhart.

The way in which said parties came to be the owners of said land was as follows:

William Erskine acquired from the Consolidated Bank, in 1842, a certain sugar plantation, about 20 arpents front on the river, having 40 arpents in depth for the upper 10 arpents and 80 arpents in depth for the lower 10 arpents, of which he afterwards sold an undivided half interest to George Urquhart (tracts A and B--C). George Urquhart thereafter (1847) bought the 10 arpents front, by 80 arpents in depth, next below the above-mentioned 10 arpents, of which he afterwards sold an undivided half interest to William Erskine (tract D--E), Again, George Urquhart bought another 10 arpents front, by 80 arpents in depth, next below the above-mentioned 10 arpents, of which he again sold an undivided half interest to William Erskine. This last sale was executed May 11, 1852. So that at that time all the above-described property belonged to William Erskine and George Urquhart in equal portions, to wit, an undivided half to each.

In 1859 George Urquhart married Augustine Weyler, and by his marriage contract with her he donated to her an undivided half of his undivided half in all the above-described property.

In 1866 William Erskine died, leaving a will by which he instituted as his universal legatees his wife, Ernestine Erskine, and his three children, John Erskine, Mary Erskine, and Clementine Erskine.

On January 23, 1867, John Erskine, then over 18 years of age, was duly emancipated, and on the same day the said John Erskine and his mother, Mrs. Ernestine Erskine, and sisters, Mary Erskine and Clementine Erskine, were duly put, "according to the requisites of the law and the provisions of the last will and testament of said William Erskine, in full possession of the property left by the deceased."

It is at this point that, through the negligence or carelessness of some one, an error occurred which has been a fruitful source of subsequent litigation. See Fernandez v. Wilkinson, 158 La. 138, 103 So, 537, Erskine v. Gardiner, 162 La. 83, 110 So. 97, and the present suit. For, in the inventory of the succession of William Erskine, taken on the very day when John Erskine and his coheirs were sent into possession thereof, the tract last purchased, being the lower 9 arpents (tract F--H), was described as having only 40 arpents in depth. Tr. No. 6675, pp. 138, 141, 143; Borde v. Erskine, 33 La.Ann. 873. For either William Erskine had already disposed of the rear 40 arpents of said 9-arpent tract (in which case this case ends right here), or it was a mere clerical error to describe said tract as having only 40 arpents in depth, when in truth its depth was actually 80 arpents; since the inventory purports to list all the property left by William Erskine when it declares that there is "no other property belonging to said deceased to be inventoried."

Also in his will (Tr. No, 6675, p. 133), William Erskine has expressed a wish that his universal legatees "should continue in copartnership to work...