Ewald v. Hodges

• Decision Date: 25 April 1960
• Docket Number: No. 44007,44007
• Citation: 120 So.2d 465,239 La. 883
• Parties: Karl R. EWALD, Jr., et al. v. Joseph L. HODGES et al.
• Court: Louisiana Supreme Court

Page 465

120 So.2d 465

239 La. 883

Karl R. EWALD, Jr., et al. v. Joseph L. HODGES et al.

No. 44007.

Supreme Court of Louisiana.

April 25, 1960.

Rehearing Denied May 31, 1960.

E. L. Guidry, Jr., St. Martinsville, Helm, Simon, Caffery & Duhe, New Iberia, for plaintiffs-appellants.

Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, Elmo P. Lee, Shreveport, Landry, Watkins, Cousin & Bonin, New Iberia, Simon Herold, Herold, Cousin & Herold, Shreveport, for defendants-appellees.

HAMLIN, Justice.

From a judgment of the trial court recognizing the defendants (other than Mrs. Georgia Shaw Pender Lauve and Humble Oil & Refining Company) to be the owners of certain described land located in the Parish of Iberia, State of Louisiana, and rejecting the demands of plaintiffs and the defendant Georgia Shaw Pender Lauve, plaintiffs appeal.

The trial judge, in his well-considered reasons for judgment, correctly and exhaustively recited the complicated pleadings and issues of the instant matter as follows:

'This action involves the title of a tract of land in the Atchafalaya Basin in Iberia Parish described as E 1/2 of Section 23, E 1/2 of Section 26, and E 1/2 of Section 35 in Township 12 South, Range 11 East, of the Southwestern Land District of Louisiana.

'The plaintiffs claim that their ancestor, James M. Muggah, patented this land from the United States of America in 1848 and never disposed of it. They allege that the defendants pretend to have acquired the property by inheritance from Sidney L. Herold, Elmo P. Lee and William H. Hodges, Jr., who are alleged to have acquired it in an act of sale from Riggs Cypress Co., Ltd., in Liquidation and William Davis on June 24, 1921.

'The plaintiffs claim that this pretended muniment of title is null and void because the vendors did not, at any time, own any interest in the property.

'Alleging that defendants have executed mineral leases on the land, as owners, the plaintiffs pray that they have judgment decreeing them, the plaintiffs, to be the owners of the property and cancelling these mineral leases and the inscriptions of the pretended title of the defendants from the public records of this Parish.

'Mrs. Georgia Shaw Pender, the wife of Sidney Love (Lauve), was alleged to be a co-owner with the plaintiffs. She did not join the plaintiffs so they made her a defendant. She later appeared and adopted plaintiffs' petition as her own. She may be therefore considered a plaintiff.

'Also made a defendant was the Humble Oil & Refining Company, a corporation. It filed an appearance to state that it had mineral leases upon the property from all of the plaintiffs and all of the defendants and that it did not choose to join issue with either in this litigation over the title of the property.

'Plaintiffs also claim that neither they nor the defendants are in possession of the tract of land, hence the title thereto should be determined under the provisions of LSA-R.S. 13:5062, but, in the alternative, should it be determined that the defendants are in possession then the title to the land should be determined in accordance with the rules pertaining to petitory actions.

'The defendants joined issue with the plaintiffs on their claim of ownership and claim to have acquired the property through any one of several alternative modes. They claim to have acquired it through William Davis, who was a tax adjudicatee of the property for non-payment of the 1919 taxes, as well as through a sale thereof by Riggs Cypress Co., Ltd., the tax debtor. In the alternative, they claim to have acquired title by means of the ten and the thirty years' prescription.

'The defendants plead certain acts of commission and omission of plaintiffs' ancestors in title to defeat plaintiffs' claim of ownership and to establish title in themselves.

'The positive acts, they claim, show that James M. Muggah, who had patented this property, transferred it to his brother, Charles R. Muggah, because in the Succession of Charles R. Muggah, James P. Muggah, the son of James M. Muggah, was the Administrator and A. B. Wadsworth, the son-in-law of James M. Muggah, became surety on the administrator's bond and in that succession the property involved here was inventoried as belonging to the Estate of Charles R. Muggah; that James P. Muggah, the administrator, presented the inventory to the court and secured an order for convoking a meeting of the creditors of the estate and James P. Muggah participated in this meeting both individually and in his capacity as dative testamentary executor of the Estate of James M. Muggah, and also as agent and attorney in fact for Mrs. Julia C. Muggah, the second wife and surviving widow of James M. Muggah; all of whom presented monetary claims against the Estate of Charles R. Muggah and voted as creditors that the property be sold to pay the debts; that in due course the property was sold and purchased by James P. Muggah, the Administrator.

'The defendants contend that James P. Muggah was an author of their title in that he transferred the property to the Riggs Cypress Co., Ltd., from whom their ancestors purchased it.

'The negative acts that the defendants rely on to show that James M. Muggah had transferred this property to his brother, Charles R. Muggah, are that neither James M. Muggah nor his heirs, the plaintiffs in this suit and their ancestors in title, ever asserted any title to the property and that the said property was not inventoried in the Succession of James M. Muggah nor in any succession of his descendants; that none of the said parties ever had the property assessed to them nor did they pay taxes thereon since long prior to the year 1856; that the present defendants were not aware that plaintiffs had the remotest claim to the property herein sued for.

'In the sale by James P. Muggah, and those associated with him in the timber and sawmill business, to the Riggs Cypress company, Ltd., which was made in the year 1906, the vendors sold to the Riggs Cypress Co., Ltd. all of their timber lands in the lower parishes of Louisiana and although the lands in controversy were sold, the deed failed to describe them. The defendants claim that this was an oversight and that the deed should be reformed so as to specifically include the description of the lands in controversy. They ask that a judgment be rendered herein reforming the deed.

'The defendants further claim that some of the plaintiffs, or their ancestors in title, were stockholders in the Riggs, cypress Co., Ltd. and that they knowingly received their proportionate share of the proceeds of the sale of this property when the Riggs Cypress Co., Ltd., sold it to Sidney L. Herold, Elmo P. Lee and William H. Hodges, Jr. and thereby estopped themselves from now claiming title to the property.

'The plaintiffs answer these contentions by arguing that the defendants' ancestors acquired no title in the sale from Riggs Cypress Co., Ltd. because the company did not have any title. It did not have title they claim because James P. Muggah and the others who attempted to sell it, the property, did not own it. They claim that the Estate of James M. Muggah, the original patentee, and its present heirs still own the title.

'The plaintiffs also claim that the tax sale to William Davis for the unpaid taxes of the year 1919 through which the defendants claim was null and void because the assessment of this property to the tax debtor, Riggs Cypress Co., Ltd., for that year was cancelled prior to the sale.

'As to defendants' plea of prescription, the plaintiffs contend that the defendants have not acquired title through the ten and thirty years' prescription because neither the defendants nor any of their ancestors in title have ever had the actual physical possession of the property in the manner required to acquire property by prescription.

'As to defendants' plea of the ten-year acquisitive prescription, plaintiffs maintain that the defendants cannot successfully plead it for additional reasons. The first is that Riggs Cypress Co., Ltd. did not have a deed translative of title. Another is that Mr. Herold and his associates, if they ever had possession, did not possess the property uninterruptedly for a continuous period of ten years. Plaintiffs base this contention on two tax sales to the State after Mr. Herold's acquisition of the property. Mr. Herold and his associates purchased from Riggs in June, 1921. On September 16, 1922 the property was adjudicated to the State in the name of William Davis as the tax debtor for the unpaid taxes of 1921. The property was redeemed December 6, 1935. Again, on October 17, 1936 it was forfeited to the State in the name of Mr. Herold and his associates for the unpaid taxes of 1935. This adjudication was redeemed on April 26, 1937.

'These adjudications, plaintiffs contend, interrupted all of the acts of physical possession that preceded them, notwithstanding the provisions of Act 310 of 1936 (LSA-R.S. 9:5803). The reason why this legislative enactment, intending to prevent tax adjudications to the State from interrupting possession, does not apply to the defendants, plaintiffs claim, is because it applies only to purchasers in good faith, and Mr. Herold and his associates were not purchasers in good faith.

'The Act provides in part:

"In all cases where immovable property has been, or may be, adjudicated or forfeited to the State for non-payment of taxes and has been or is subsequently redeemed by a Purchaser in good faith and by just title, or by the heirs or assigns of such purchaser, prescription shall not be interrutped or suspended during the period that title is vested in the State. * * *' (Italics for emphasis.)

'For the same reason the plaintiffs challenge defendants' plea of thirty years' prescription. Even if the defendants could claim the benefit of Riggs' possession, which originated in 1909, and tack it on Mr. Herold's and his associates' possession, the thirty years'...