Gouaux v. Beaullieu

• Decision Date: 12 April 1909
• Docket Number: 17,357
• Citation: 123 La. 684,49 So. 285
• Court: Louisiana Supreme Court
• Parties: GOUAUX v. BEAULLIEU et al

49 So. 285

123 La. 684

GOUAUX v. BEAULLIEU et al

No. 17,357

Supreme Court of Louisiana

April 12, 1909

Rehearing Denied May 10, 1909.

Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Schwing, Judge.

Action by Joseph S. Gouaux against Frank Beaullieu and another. Judgment for defendants and plaintiff appeals. Affirmed.

Walter Lemann and Edward Nicholls Pugh & Sons, for appellant.

Edward Blount Talbot and Frederic Paul Wilbert, for appellees.

OPINION

NICHOLLS J.

Statement of the Case.

The plaintiff alleged that he is the owner of the following described property:

"A certain tract of land situated in the parish of Assumption and Iberville, state of Louisiana, being lot number 3 of section 14, township 12 S., R. 12 east, Southeastern district of La., west of the Mississippi river, and containing 102 acres, together with all rights, titles, interest, claims and demands in and to all damages that may have been caused to him or to said property by others by the felling trailing, pulling, deadening, and removing and carrying away of cypress timber or other timber, deadened, felled, trailed, and pulled, carried away, or removed from said land, as well as all claims which he may or might have had to recover the value of said trees, hereby transferring and conveying to said purchaser the right to sue for and recover all such damages as may have been committed or done as aforesaid upon said land as well as for the value of said trees, the same, to the same extent as the said vendor might or could do himself. Which will more fully appear by references to the annexed notarial acts attached hereto and made part hereof."

Petitioner having acquired the same from Geo. J. Vest and Mary Ellen Riggs, by acts of sale duly recorded in the parishes of Iberville and Assumption on the 18th day of December, 1906, and the day of , 1906, respectively, said vendors of petitioner having acquired the same by inheritance from their deceased father, Moses Vest, who died intestate several years ago, leaving said vendors as his heirs, their said father, Moses Vest, having acquired the same by patent from the state of Louisiana in the year 1847, on May 28th.

That Frank Beaullieu and St. Paul Bourgeois are in possession of said above-described land without right or title, well knowing the same is the property of petitioner; that, availing themselves of their illegal and tortious possession of petitioner's land, said defendants have cut down 640 cypress trees, or thereabout, worth $ 5,000, said trees being still on said land; that said trees belong to petitioner and are his property, and petitioner had good grounds to believe and apprehend, and does so aver and allege, that the defendants will convert said trees to their own use, and will part with and dispose of said trees during the pendency of this suit, and send the same out of the jurisdiction of this honorable court. That petitioner is entitled in the premises to a writ of sequestration. Petitioner further shows that the value of said land and trees is over $ 2,000.

In view of the premises, petitioner prayed that a copy of this petition be served on Frank Beaullieu and St. Paul Bourgeois, and each of them, and that they and each of them be duly cited to answer this petition, and that after legal delays and due proceedings had judgment be rendered in favor of petitioner and against defendants, decreeing and adjudging petitioner to be the owner of described land and trees, and that petitioner be placed in possession of said land and trees, or, in default of the delivery of said trees, that defendants be made to pay the value thereof, $ 5,000, with interest at the rate of 5 per cent. per annum from judicial demand until paid; that on due compliance of law a writ of sequestration issue herein against said defendants and each of them, commanding and directing the sheriff of the parish of Iberville to seize and sequester and into his possession take said six hundred and forty cypress trees (640), and to hold the same subject to the further orders of this court; that after due proceedings had said writ of sequestration be maintained and perpetuated; that the court fix the bond for said writ of sequestration. And petitioner prayed for all and general relief.

On reading this petition, a writ of sequestration was ordered to issue on plaintiff's executing a bond for $ 300 according to law. The required bond was furnished and the property was sequestered. The property sequestered was subsequently bonded.

The defendants on March 9, 1907, answered, pleading, first, a general denial. Further answering, they averred that they acquired the property in dispute in good faith under a just title for a valuable consideration from Mrs. Lelia Sherburne, wife of Henry Sherburne, in January, 1904, and have been in the quiet and peaceful possession thereof since that period. That said property was acquired by Mrs. Sherburne by inheritance from her mother, Mrs. Elodie Schlater, deceased, who acquired the ownership and possession thereof in 1889 at a tax sale by the sheriff of the parish of Iberville under Act No. 82, p. 104, of 1884, as will appear more fully from the act of sale annexed hereto as part of this answer, and respondents specially plead the prescription of three years under article 233 of the Constitution against any demand of plaintiff to attack or annul said tax title.

Respondent further shows that the writ of sequestration was wrongfully and illegally obtained and issued; that plaintiff was well aware of the title of respondent, and purchased the interest of two of the heirs of Vest for an insignificant price, with the right to sue for damages for the purpose of speculation, and respondent has sustained damages in the sum of $ 75 for the wrongful and illegal issuance of said sequestration, to wit, the sum of $ 50 for attorney's fees, and $ 25 for expenses in dissolving said writ and bonding said property.

In view of the premises, respondent prayed that the demand of plaintiff be dismissed and respondent recognized as the owner of said property and maintained in the possession thereof, and that respondent have judgment against plaintiff in reconvention for the sum of $ 75 for attorney's fees and expense in dissolving the writ and bonding the property herein. And in duty bound petitioner prayed for all general and equitable relief.

The trial of the case was concluded March 8, 1908.

On the 22d September, 1908, the district court rendered judgment in favor of the defendants, and dismissing and rejecting plaintiff's demand. The judgment further ordered that the sequestration which had been sued out be dissolved at plaintiff's costs.

It further ordered and decreed that the defendants be recognized as the owners of the Moses Vest tract of land, to wit, tract of land, being a portion of section 14, of township 12, range 12 east, containing 102 acres, and maintained in the possession thereof.

Plaintiff has appealed suspensively from the judgment.

The defendants urge that there is no proof that Moses Vest, who entered the land claimed by the plaintiff in this suit is dead. That issue was not raised in the lower court, but the death of Moses Vest is sufficiently shown. In answer to the question propounded by defendant to George Vest whether Moses Vest was dead, he answered, "Yes," There may be some question as to the precise time, but not as to the fact, of his death. The party answering the question was the son of the party referred to; he is not likely to have been ignorant on the subject. Moses Vest is shown to have left three children, George Vest, Mary Ellen Vest (Mrs. Riggs), and Isaac Vest, who has died leaving nine children; one of them lives in New Orleans, one in Mexico, one in Texas, one in Missouri, and the residences and names of the others are unknown.

The title on which plaintiff declares is stated to be "all the right, title, and interest owned by George Vest and Mary Ellen Vest [Mrs. Riggs] in" a certain tract of land in the parishes of Iberville and Assumption, state of La., being lot No. 3 of section 14, township 12 S., R. 12 E., Southeastern district of Louisiana west of the Mississippi river, and containing 102 acres. He alleges that defendants are in possession of that land. Defendants allege that they acquired the property in dispute in January, 1904, and have been in the quiet and peaceable possession thereof since that period.

There is therefore no uncertainty as to the property involved in this litigation as between these parties. The petition in this case appears to have been filed about 15th of January, 1907, but the precise day is not shown in the transcript. Clerks of court in making up transcripts should be careful to give the date of filing of the different papers filed by the parties, as those dates are in some cases of the utmost importance, particularly where questions of prescription are at issue. While referring to this matter, we again refer to the necessity of clerk and recorders giving the dates of the recording of the acts, as well as the pages of certain books in which they are recorded.

The evidence shows that on the 9th of March, 1889, Charles A Brusle, sheriff and ex officio tax collector for the parish of Iberville, acting under Act No. 82 of 1884, adjudicated to Mrs. Elodie Brusle, widow of Alexander Schlater, for taxes due on the same, under assessments upon it in the name of Moses Vest prior to the 31st of May, 1879, a tract of land, "being a portion of section fourteen of township twelve, range twelve east, containing one hundred and two acres," and executed a deed of sale to the purchasers on the 12th of March, 1889, which was recorded in the parish of Iberville; that Mrs. Lelia Sherburne,...