Farley v. Frost-Johnson Lumber Co.

• Decision Date: 28 April 1913
• Docket Number: 19,660
• Citation: 133 La. 497,63 So. 122
• Parties: FARLEY et al. v. FROST-JOHNSON LUMBER CO. (JOHNSON & WEAVER, Warrantors.) In re JOHNSON et al
• Court: Louisiana Supreme Court

63 So. 122

133 La. 497

FARLEY et al. v. FROST-JOHNSON LUMBER CO. (JOHNSON & WEAVER, Warrantors.)

In re JOHNSON et al

No. 19,660

Supreme Court of Louisiana

April 28, 1913

Rehearing Denied May 26, 1913

Breazeale & Breazeale, of Natchitoches, for applicants.

J. D Rusca and Searborough & Carver, all of Natchitoches, for respondents.

The CHIEF JUSTICE and MONROE, J., dissent.

OPINION

PROVOSTY, J.

The plaintiffs claim, as heirs of John N. S. Cox, the undivided half of the W. 1/2 of N.W. 1/2 of section 9, township 11 north, range 6, and the N.W. 1/4 of section 2, township 11 north, range 7 west, parish of Natchitoches. The defendants claim title to the whole of the property by purchase from Johnson and Weaver, and call their said vendors in warranty. The latter purchased from Robert and John Cox and Julia Smith, the brothers and the mother of the plaintiffs, by an act reciting as follows:

'Know all men by these presents that we, Julia Smith, widow of John N. S. Cox, Robert Cox, and John Cox, the only legal heirs of John N. S. Cox, deceased, have this day sold,' etc.

In setting forth their title the plaintiffs merely alleged in general that they had acquired by inheritance from their father, John N. S. Cox, who had acquired by patent from the government.

Defendants filed an exception calling upon them to give the name of their mother, with the date and registry of the marriage of their father and mother, and the dates of their own births.

They answered that their mother was Julia Smith, and that she was married to their father during the War, and that they themselves were born on March 27, 1870, and December 4, 1875 respectively.

On application of defendants, the plaintiffs were ordered to give more specific information than this; and they answered that they were unable to do so.

The question in the case is as to the legitimacy of the plaintiffs.

About the time of the breaking out of the Civil War, Julia Smith, a young mulattress and slave, who had had one or two children and worked as servant in the house of her father, a white man, left for Mexico, or Texas, with John N. S. Cox, a white man, who lived in the neighborhood; some said with the connivance of her father; some say not. The pair remained away some two years, during which time a letter was received written at Corpus Christi, Tex., saying that they had married. When they returned, their first born, John Cox, was a baby in arms. They gave themselves out to be man and wife. Cox went to the War. On his return he resumed his marital relations with Julia Smith living with her and holding her out to the world as his wife. These marital relations continued until August, 1884. During this time three other children were born to them, Robert Cox, who joined with John in making the sale to the warrantors of defendants, and the two plaintiffs, Liddy and Clara Cox. In 1884 John N. S. Cox married Mildred Barnes. This marriage was not preceded by a divorce from Julia Smith. Of this marriage two children were born. Johnson and Weaver, the warrantors, made the purchase from John and Robert Cox and Julia Smith in 1906. Shortly afterwards they transferred the property to the Black Lake Lumber Company, who in turn transferred it to the present defendants. Johnson and Weaver had lived in the neighborhood and were acquainted with the foregoing facts, except, it seems, with the marriage to Mildred Barnes. In January, 1910, the two children of John N. S. Cox and Mildred Barnes, alleging themselves to be the legitimate children of John N. S. Cox, brought suit against the present defendants for this land. The defendants filed an answer in which they alleged that they owned the property from having bought it from the Black Lake Lumber Company, 'who bought it from A. R. Johnson and J. R. Weaver, who bought it from the real heirs of J. N. S. Cox, plaintiffs not being such legal heirs;' and they called Johnson and Weaver in warranty. Weaver alone appeared. He first filed a motion asking that the plaintiffs be required to give the name of their mother, and the date of the marriage of their father and mother, as well as the dates of their own births, and to furnish a certified copy of the certificate of the marriage of their father and mother. Whether any action was ever taken on this motion does not appear. It was filed on February 23, 1910. On April 8, 1910, Weaver filed an answer in which he averred:

'Respondent admits that he and A. R. Johnson bought the land claimed by the plaintiffs from the heirs of J. N. S. Cox, and sold it to the Black Lake Lumber Company, who sold it to the Frost-Johnson Lumber Company. Respondent acted in good faith in the purchase of said land from said heirs, who represented themselves and were the legal heirs of J. N. S. Cox. Your respondent shows that the plaintiffs herein are not the legal heirs of J. N. S. Cox.'

The suit was never tried. The parties made a compromise by which Weaver and Johnson paid $ 75 to the plaintiffs in it, and a judgment, based on this compromise, was entered decreeing the defendants in it, to be owners of the property.

The allegation made by Weaver in that suit to the effect that John and Robert Cox were the legal heirs of John N. S. Cox, and that Julia Smith was his widow, is now relied on by the plaintiffs in the present suit as an estoppel on the question of their legitimacy. The case is before this court on writ of review to the Court of Appeal, and therefore has not been argued orally. The brief of the plaintiffs hardly amounts to a claim that their father and mother were legally married. Their mother was a slave at the time of the alleged marriage, and therefore incapable of marriage with a free man. She was still living at the time of the trial, and, although old, was not so old but that her testimony might have been secured by commission, or even taken in open court. If a marriage really took place, she might have given the plaintiffs, her children, all the information necessary for procuring the official record evidence of it, or, at least for accounting for the absence of this certificate.

No doubt, as is said in plaintiff's brief, marriage may be proved by the acts of the parties in holding themselves out to the public as man and wife and by reputation; but such evidence is accepted only for want of better, and in the present case the nonproduction of this better, evidence, which, for all that appears, the plaintiffs might have procured if really existing, militates strongly against plaintiffs; and the subsequent legal marriage of their father, with no protest, so far as the evidence shows, from their mother, who lived in the neighborhood, would seem to rebut all the inferences that might otherwise have resulted from the previous conduct of the parties. And besides neither reputation nor records can establish a legal marriage between a slave woman and a free man.

The bulk of the brief of the plaintiffs is devoted to the contention that the defendants are estopped from contesting their legitimacy.

This estoppel is sought to be founded on the deed by which Weaver and Johnson acquired from John and Robert Cox and Julia Smith, and, as already stated, on the allegation made by Weaver in his answer to the suit of the heirs of Mildred Barnes to the effect that John and Robert Cox were the legal heirs of John N. S. Cox and Julia Smith, his widow. It is said that this deed and this allegation are an admission that John and Robert Cox were legitimate, and that Julia Smith was married to John N. S. Cox; and that this admission carries with it an admission of the legitimacy of plaintiffs, since John and Robert Cox could not be legitimate, and Julia Smith could not have been married to John N. S. Cox, without the plaintiffs being legitimate. And it is argued that the defendants are concluded by these admissions because, as to the deed, 'they cannot be heard to deny title in those from whom they bought'; and, as to the judicial allegation, 'they cannot be allowed to deny what they have solemnly acknowledged in a judicial proceeding, nor to shift their position to a contradictory one in relation to the subject-matter of the litigation, in order to defeat the action of the law upon it.'

The estoppel sought to be founded upon the deed was sought to be met in the Court of Appeal by the proposition that:

'Estoppel by deed is operative only between the parties to the deed and their privies; strangers to the deed are not bound by it, nor can they invoke it.' 16 Cyc. 710.

The Court of Appeal was of the opinion that the plaintiffs were privies to the said act of sale, for the reason that they 'were coheirs and co-owners with defendant's vendors, and bore the same relationship to and had the same interest in the estate of John N. S. Cox.' But this was an error. Coheirs or co-owners are not privies to each other's contracts, even if the subject of the contract be the common property. By a privy to a deed is meant a party to the deed or a legal representative of, or successor in title to, a party, the heirs, executors, administrators, or assigns of a party, what the French call the ayant causes. If the plaintiffs had been privies to the said act of sale, they would have been bound by it and would be estopped from prosecuting the present suit. To be privy to an act means to be bound by it.

As to the proposition that the defendants 'cannot be heard to deny title in those from whom they bought,' there can be no doubt of the correctness in the abstract of the principle it embodies; but that principle has no application to the present case. This is a petitory action in which the plaintiff must recover upon the strength of his own title not on the weakness of that of his adversary, where, therefore, the defendant is...