Fluker Farms v. James
| Citation | 79 So.2d 166 |
| Decision Date | 25 March 1955 |
| Docket Number | No. 3991,3991 |
| Parties | FLUKER FARMS, Inc. v. Ruthy Mae JAMES. |
| Court | Court of Appeal of Louisiana (US) |
Ponder & Ponder, Amite, for appellant.
Reid & Reid, Hammond, for appellee.
This is a suit for partition by licitation of the following described property:
5 acres to be taken out of the Southeast corner of NE 1/4 of SW 1/4 Sec. 5 T 3 S R 7 E, said 5 acres to be surveyed so as to be equal on all sides and is same property acquired by Henderson Mackey from Annie B. Creevey in Donation Book 1, pg. 48, the heirs of Pauline Mackey acquired one-half interest therein by judgment in COB 198, pg. 695, and heirs and legatees of Pauline Mackey recognized in judgment recorded in COB 195, pg. 238.
in which plaintiff alleged it was the owner of an undivided 2/3 interest and that Ruthy Mae James was the owner of the other undivided 1/3 interest.
Plaintiff alleged that it had acquired its undivided interest from Ermyntrude Parter Cutrer, Paul Ferguson and Gladys (Ferguson) Fortinberry, as heirs of Henderson Mackey, deceased, by deed dated February 18, 1951 and recorded in the records of Tangipahoa Parish, and that although said deed called for the entire property, defendant 'has a claim' on a 1/3 interest therein as she acquired same under the terms of a will from Pauline Mackey, deceased, who was the owner at the time of her death by inheritance from her deceased father, Henderson Mackey, of an undivided 1/2 of the above described five acres. Plaintiff alleged the indivision of the property and asked that it be sold in order to effect a partition and further asked for attorney fees in the sum of $100 for effecting the partition, to be borne by the mass and paid prior to the division of the proceeds of the said sale.
The defendant entered a general denial to all allegations of plaintiff's petition setting forth its ownership and acquisition of said property, and by way of further answer set up ownership in herself of 4.54 acres which it was shown on the trial was a portion of the same property but was surveyed in accordance with old fences surrounding it. The defendant alleged that she had inherited this property from her 'deceased grandmother,' Pauline Mackey Rankin, by last will and testament which had been duly probated, and that she had further acquired the 1/6 undivided interest each of Paul J. Ferguson and Gladys C. Ferguson Fortinberry by deed of record in COB 198, page 472. The defendant further alleged that the description of the property in the deed was incorrect and also in the succession of Pauline Mackey Rankin but that the descriptions in both the deed and succession proceedings 'are being corrected accordingly.'
The defendant charged the plaintiff with moral and legal bad faith in purchasing the property from Ermyntrude Parter and Paul Ferguson and Gladys Fortinberry because it allegedly knew or had every reason to know that the property was the same that Pauline Mackey Rankin left to defendant, and defendant therefore claimed a title superior and more ancient than that of the plaintiff.
In the alternative defendant alleged: '* * * that plaintiff's claim through Ermyntrude Parter Cutrer, who is an illegitimate child of Leathy Jiles and that Leathy Jiles, in turn, was an illegitimate child of Henderson Mackey being born out of wedlock and further, that the said Ermyntrude Parter Cutrer never went by the name of Jiles and Leathy Jiles, who claims to be a descendant of Henderson Mackey, never went by the name of Mackey as she was born out of wedlock.' Defendant further claimed open, civil, corporeal and peaceful possession together with Pauline Mackey Rankin of the property in dispute under ten and thirty years 'under color of title, and by actually living thereon peacefully as against all the world * * *.'
Defendant also filed an exception of no cause or right of action prior to its answer which was referred to the merits by the trial court and which has been abandoned as it is not mentioned in the brief.
After trial there was judgment in favor of plaintiff and against the defendant in which the plaintiff was decreed to be the owner of an undivided 2/3 interest and the defendant an undivided 1/3 interest and the property was further adjudged to be indivisible in kind and ordered sold at public auction with appraisement after due advertisement according to law by the Sheriff of Tangipahoa Parish, the proceeds of the sale to be referred to the Clerk of Court to complete said partition. It was further ordered, adjudged and decreed that all costs of this proceeding and attorney fees in the sum of $100 for effecting the partition be borne by the mass and paid prior to the division of the proceeds of the said sale.
From this judgment the defendant perfected a devolutive appeal which was heard by this court and a motion to dismiss was sustained, see 71 So.2d 709, but writs were granted by the Supreme Court, 226 La. 303, 76 So.2d 311 which held that this court was in error in sustaining the motion to dismiss as the full amount for which the property was sold in accordance with the judgment in order to effect a partition had been paid into the registry of the Court 'where the funds are now held pending final decision', and that, therefore, appellee's rights as against plaintiff-appellant 'are relegated to the proceeds of the sale.' In other words, the question presented to this court now is whether the defendant is entitled to the entire amount of the funds or whether, as contended by the plaintiff, it is entitled to only an undivided 1/3 less costs and attorney fees.
It is shown that Henderson Mackey acquired the five acres heretofore described by donation on the 25th day of September, 1888 and that on the 27th day of June, 1900, Leathy Mackey, alleged daughter of Henderson Mackey, acquired the following described property:
'Five certain acres of land with improvements thereon and the rights, ways, privileges, servitudes and advantages thereto belonging or in anywise appertaining, situated in the State of Louisiana, in the Parish of Tangipahoa, formerly St. Helena Parish, which five acres together with five other acres previously acquired and now owned by said Henderson Mackey, comprise together the southeast Quarter of Northeast Quarter of Southwest Quarter of Section Five, Township Three south Range seven East, Greensburg Land District.'
Considering the description of the property which Henderson Mackey acquired and which Leathy Mackey acquired, the vendors intended that Henderson Mackey acquired the east half of southeast quarter of northeast quarter of southwest quarter of Section five, T 3 South Range 7 East, while Leathy Mackey acquired the West half of Southeast Quarter of Northeast Quarter of Southwest Quarter of the same section, township and range.
The defendant by her answer and on the trial in the District Court attempted to vary and correct the description of the property in question and also plead prescription. Those two questions are not before this court due to defendant's failure to take a suspensive appeal and as held by the Supreme Court, 'the sale was actually consummated pursuant to the judgment, such sale was valid and the appellee's rights against Fluker Farms, Inc. are relegated to the proceeds of the sale.'
Henderson Mackey and Caroline Mackey had two children, Leathy and Pauline. The defendant alleged that Leathy was illegitimate but the record amply supports the contrary, as the testimony offered by defendant it based upon hearsay of the vaguest kind. Leathy Mackey was the mother of Ermyntrude Parter, her only offspring whom the defendant alleged was illegitimate. Pauline Mackey upon her death left as her sole heirs two grandchildren, Paul Ferguson and Gladys Ferguson Fortinberry.
As stated, the plaintiff offered in evidence the deed whereby Henderson Mackey acquired the five acres in dispute as well as the deed whereby Leathy Mackey acquired the adjoining five acres. The plaintiff offered a petition and judgment in the Succession of Henderson Mackey in which Leathy Mackey and Pauline Mackey were recognized as the sold and only heirs of the deceased, and Ermyntrude Parter Cutrer was recognized as the sole and only heir of her mother, Leathy Mackey Jiles, and Paul Ferguson and Gladys Ferguson Fortinberry were recognized as the sole and only heirs of their deceased grandmother, Pauline Mackey Rankin. Ermyntrude Parter Cutrer was recognized as the owner of an undivided one-half interest and Paul Ferguson and Gladys Ferguson Fortinberry of an undivided 1/4 interest each, in and to the five acres in dispute and heretofore described. This judgment was dated December 7, 1950, and on the 18th day of February, 1951 Ermyntrude Parter Cutrer, Paul Ferguson and Gladys Ferguson Fortinberry, for a consideration of $500 cash, sold to the Plaintiff, Fluker Farms, Inc., the same five acres of land.
The plaintiff, after showing an apparently complete chain of title, by deed, Henderson Mackey's acquisition of the five acres in dispute and then offering the proceeding in the Succession of Henderson Mackey and the judgment recognizing the heirs and sending them in possession of the property in question and its subsequent acquisition thereof, closed its case.
When the defendant attempted to attack the legitimacy of Leathy Mackey the plaintiff made the following objection:
It is not necessary to a decision of this case that we consider this objection.
The defendant relies upon the testimony of Sam Callihan, a Negro man who in 1952 when the...
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