Gary v. Bullock

• Decision Date: 22 May 1944
• Docket Number: 36594.
• Citation: 19 So.2d 120,206 La. 231
• Court: Louisiana Supreme Court
• Parties: GARY et al. v. BULLOCK et al.

19 So.2d 120

206 La. 231

GARY et al. v. BULLOCK et al.

No. 36594.

Supreme Court of Louisiana

May 22, 1944

Rehearing Denied June 26, 1944.

Charles J. Rivet, of New Orleans, and O. J Mestayer, of New Iberia, for plaintiffs and appellants.

McCoy & King, of Lake Charles, and Lawrence Simon, of New Iberia, for defendants and appellees.

HAMITER Justice.

Plaintiffs who are J. Sidney Gary, Adias J. Landry, Josephine Olivier Decuir, and David Baez, Jr., allege title and seek and pray to be recognized as owners of certain undivided interests now claimed by defendants, in and to a tract of land containing 42 acres more or less, that is located in Iberia Parish, Louisiana. The defendants are Mrs. Laura Jacobs Bullock, widow of F. N. Bullock, deceased, F. W. Bennett, and Mrs. Rubylien B. Bennett, widow by divorce of F. W. Bennett.

Further, plaintiffs pray for judgment decreeing null, void and of no effect the hereinafter described act of recognition or quitclaim deed affecting the property that was executed by their authors in title, Clyde Delahoussaye and Albert Decuir, in favor of F. N. Bullock on August 12, 1930, and recorded in the conveyance records of the mentioned parish on August 19, 1930.

The suit was dismissed by the district court, following its sustaining of defendants' plea of estoppel, and plaintiffs are appealing.

The mentioned tract was acquired by one Hermine Olivier in 1883, and on it she lived and farmed, with her five children, until her death that occurred in 1893. These children continued to reside on the place for a number of years thereafter.

By an instrument of date January 11, 1928, and passed before F. E. Delahoussaye, Notary Public, some of the descendants of Hermine Olivier conveyed unto C. W. Wolke what was described as their undivided 26.22 acres interest in the property, it amounting to approximately an undivided 5/8 interest. Wolke, on March 25, 1929, transferred that interest (hereafter referred to as the Bullock interest) to F. N. Bullock; and Bullock assigned a portion of it to his business associate, F. W. Bennett.

Without any previous notice being given to Bullock or Bennett, there occurred on June 23, 1929, a tax sale, purporting to convey the entire 42 acre tract, that was held under an assessment in the name of Hermine Olivier for the purpose of satisfying 1928 taxes. The deed evidencing this adjudication, recorded July 16, 1929, listed Clyde Delahoussaye as the purchaser, and recited a consideration of $57.40. Four days later such purchaser conveyed to Albert Decuir, for a cash payment of $38.26, an undivided 2/3 interest in whatever property he acquired at such sale.

It is through and from the said Clyde Delahoussave and his tax sale acquisition, by reason of an act of conveyance obtained from him on October 20, 1936, that plaintiffs J. Sidney Gary and Adias J. Landry are asserting title to the disputed undivided interest that they seek to recover herein from defendants; while the remaining plaintiffs, Josephine Olivier Decuir and David Baez, Jr., are claiming title thereto as widow and heir, respectively, of the said Albert Decuir, deceased.

About eleven months after the occurrence of the aforementioned tax adjudication to Clyde Delahoussaye, specifically on May 21, 1930, one J. T. Lejeune wrote to Bullock and Bennett, both residents of Houston, Texas, informing them that he, while looking over the records at the court house, had discovered that the Hermine Olivier property in which Bullock had bought an interest had been sold for taxes in June, 1929; and he advised them that redemption from the sale had to be made before June of 1930. (At that time the period of redemption was one year from date of recordation of the tax deed; thus in the instant case it expired July 16, 1930.) They replied that there must be some mistake, for their records revealed a payment of the 1928 taxes. But again Lejeune wrote, insisting that the taxes had not been paid and that redemption must be effected immediately.

Thereupon Bennett communicated by telephone with State Senator F. E. Delahoussaye of New Iberia, Louisiana, who was the notary on the deed from the Olivier descendants to Wolke and who had formerly represented Bullock and Bennett as lawyer, notary public and abstractor in some matters in Iberia Parish, for the purpose of making inquiry about the tax deed. Senator Delahoussaye informed Bennett that he had appeared at the tax sale and made the purchase for the account of his son, Clyde Delahoussaye, but that the property purchased did not include or affect the Bullock interest. Furthermore, he advised that a redemption, which Bennett had suggested, was unnecessary; and in this connection he promised to have his son execute an act of release or disclaimer or a quitclaim deed, so as to clear the title to the Bullock interest, if such an instrument would be prepared and forwarded to him.

Pursuant to this understanding, Bennett prepared the suggested instrument and mailed it with the following letter:

'Houston, Texas

'June 18, 1930

'Senator F. E. Delahoussaye

'c/o Senate

'Baton Rouge, Louisiana

'Dear Senator:

'In compliance with your wishes as expressed over the telephone of recent date, I am enclosing herewith an instrument to be executed by your son and another party releasing and relinquishing all rights that your son and the other party might have acquired in said tax sale effecting Mr. Bullock's undivided interest in his 44.6 acre tract in the Little Bayou field.

'I shall greatly appreciate your having your son and the other gentleman sign this instrument at your earliest convenience.

'Thanking you in anticipation for handling this matter for me, I am

'Yours very truly,

'Frank W. Bennett.'

'FWB:BH'

A few days later Bullock telegraphed Lejeune that:

'Delahoussaye claims did not buy the interest we purchased from the H. Olivier heirs but the other unsold part Stop. He has agreed to give us quit claim deed showing that he did not purchase our interest Stop.'

On August 14, 1930, Senator Delahoussaye wrote Bennett as follows:

'Mr. Frank W. Bennett

'Houston, Texas

'Dear Bennett:

'Enclosed please find act of release signed by Clyde Delahoussaye and Albert Decuir purchasers at tax sale in favor of Mr. Bullock. Kindly get Mr. Bullock to appear before a Notary and two witnesses and execute the acceptance of said release and mail this document back to me to have same recorded. The recording cost will be $1.75. If Mr. Bullock wants a copy, it will cost $1.50 more.

'With best wishes, I am

'Yours truly,

'(Signed) F. E. Delahoussaye

'F. E. Delahoussaye.'

The act of release was accepted by Bullock and returned to Senator Delahoussaye, along with remittance for the mentioned costs, and it was duly recorded in the conveyance records of Iberia Parish on August 19, 1930. This instrument, which is notarial in form and is the one that plaintiffs seek to have decreed null and void, recites:

'Know All Men by These Presents:

'That Whereas, Clyde Delahoussaye, and Albert Decuir both residents of Iberia Parish, and State of Louisiana, did on or about June 23, 1929, purchase from the Sheriff of Iberia Parish, Louisiana, at a tax sale an undivided interest in the following described properties, to-wit:

'A certain tract of land containing forty four and 6/10 (44.6) acres of land and being bounded on the North by Dr. George J. Sabatier, Walter J. Burk, S. E. Sorrelle, and others; South by Bayou Teche; West by F. N. Bullock; and East by F. N. Bullock, being situated in Township Twelve (12) South, Range Seven (7) East, Iberia Parish, Louisiana.

'Whereas, the said interest that was purchased at said tax sale was an undivided interest owned by the heirs of Hermine Olivier and that said tax sale did not affect the other undivided interest in said property.

'Whereas, F. N. Bullock is now the legal and rightful owner of the other undivided interest in said property.

'Now therefore, the said purchasers of the said land at the said tax sale...