Heirs of Burney v. Ludeling, 11,319

• Court: Supreme Court of Louisiana
• Writing for the Court: MCENERY, J.
• Citation: 16 So. 507,47 La.Ann. 73
• Parties: HEIRS OF BURNEY v. JOHN T. LUDELING ET ALS
• Docket Number: 11,319
• Decision Date: 26 November 1894

16 So. 507

47 La.Ann. 73

HEIRS OF BURNEY
v.
JOHN T. LUDELING ET ALS

No. 11,319

Supreme Court of Louisiana

November 26, 1894

January, 1895

Rehearing refused.

APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

Boatner & Lamkin, for Plaintiffs and Appellees.

Stubbs & Russell and Potts & Hudson, for Defendants, Appellants.

C. J. Boatner filed a brief, for Appellees on application for a rehearing.

OPINION [16 So. 508]

[47 La.Ann. 74] MCENERY, J.

One of the plaintiffs, McLain, died during the pendency of this appeal, and her representative has been made a party.

The plaintiffs, heirs of R. W. Burney and Fredonia Burney, both of whom died in 1866, claim certain real property remaining in the hands of defendants, and the proceeds of the sale of the real property sold by defendants, all of which they inherited from their deceased parents. They charge that the defendants, one of whom was administrator of the estate of R. W. Burney, fraudulently schemed, combined and conspired, during their minority, to spoliate them of their property.

The petition sets out a number of acts which the plaintiffs allege are absolutely null and void, and which never divested the title of the property in the succession of Burney. The prayer of the petition [47 La.Ann. 75] is, "that on final trial hereof all the proceedings herein set forth, to-wit., the several purchases by Towne, J. J. Garrard and John T. Ludeling, be decreed to be absolute nullities in so far as the same purports to divest the estate of R. W. Burney to the aforesaid property, and your petitioner decreed owners of two-fifths interest in such of said property as now stands in the name of the defendants herein as per the statement filed herewith. That they have judgment against said defendants in solido for two-fifths of the sum of fifty-nine thousand eight hundred and twenty-two dollars and seventy-two cents, with five per cent. per annum interest on the proceeds of the several sales of said property by the several parties as set forth in the detailed statement of said sales hereto annexed and made part hereof," etc.

Several exceptions were filed to the suit of plaintiffs, which were sustained by the District Judge, and on an appeal to this court judgment was reversed and the case remanded, ordering additional parties to be made defendants. 41 An. 627. The necessary parties having been made, and service having been made upon them, they answered, pleading a general denial, prescription res judicata and estoppel and special defences, the prescription of one year under Arts. 1987, 1994 and 3536, and ten years under Arts. 3474, 3478 and 2221, and thirty years under Art. 3548 of the Civil Code.

The plea of estoppel is based on the silence of Mrs. Burney and her children and their failure to make objection to the title acquired by Towne, administrator, in October, 1868, at judicial sale of said property in the proceedings of Woodman vs. Teckell, Executor, at which sale Towne was a purchaser of Woodman's interest in the property claimed by plaintiffs in good faith and paid the price of the adjudication and received a deed to Woodman's interest, which was duly recorded in Madison parish.

The plea of res judicata is based on the fact that the tutor of the present plaintiffs, the minors, joined the other heirs of Burney in a suit against E. B. Towne, administrator, in which they set forth the same cause of action and prayed for the same relief as in the present suit, which it is affirmed was compromised and settled.

The answers of defendants are lengthy, but as they refer to several acts attacked by plaintiffs we will refer to them at length, and will select the answer filed by the defendant Stubbs as containing the full defences made by the defendants.

[47 La.Ann. 76] It is averred in this answer that the respondent, with the other defendants, was the purchaser of the Vicksburg, Shreveport & Texas Railroad, and that he and his associates were engaged in rebuilding said road, which had been destroyed during the war. Changes at its terminus opposite Vicksburg necessitated the selection of another terminus. That during the years 1867 and 1868 several persons, owners of property from the point opposite the mouth of the Yazoo river down to Warrenton, several miles below Vicksburg, made offers to respondent and those interested with him, for the location of the eastern terminus on their lands on the Mississippi river; no one offering inducements to Ludeling and associates less than the right of way, depot grounds, and one-half of the balance of their respective properties.

That all the lands in that section of country were then largely reduced in value, very few places having any buildings or fences left on them. That what was then known as the Woodman and Burney property had neither buildings nor fences, and was unprotected by levees from the Mississippi overflow. That early in the spring of 1868, the White property, the Genella tract, the Kennedy-Towne tract and the Woodman and Burney tract, as well as others, were offered to Ludeling and associates on most liberal terms in case they would locate the terminus of the railroad on their tracts. That in June, 1868, after having had the whole country carefully examined and surveyed by Major J. W. Green, chief engineer, a portion of the Kennedy-Towne tract, with a portion of the Woodman-Burney tract adjoining, was selected and reported by him as a suitable and safe terminus of the railroad, and as near to Vicksburg as it was then prudent to build, whereupon an agreement was then entered into by Ludeling for his company, with P. J. Kennedy and E. B. Towne, who respectively claimed to be the owners and in possession of the said Towne and Woodman and Burney lands, and your respondents and associates agreed to locate the [16 So. 509] terminus of the railroad on said lands, and to have, at their own expense, a portion of it laid off with lots and squares, and that, in consideration thereof, they were to have right of way, depot grounds, one-half of the lots and an undivided one-half (1/2) of the balance of the property. That J. J. Garrard, who had acquired one-half interest with Towne in the Woodman and Burney lands, joined with Towne in making the [47 La.Ann. 77] agreement. That Towne represented that he had, and respondent avers that he was the owner of Secs. 11 and 15, in T. 16 N., R. 15 E., which was the portion of the Woodman and Burney lands included in the agreement of Ludeling and associates with Towne, Kennedy and Garrard. That about the 6th of October, 1886, Ezra B. Towne, under an order of seizure and sale, issued under a decree of a court of competent jurisdiction in the suit of F. F. Woodman vs. Teckell, Executor of the O. O. Woodman, purchased said Secs. 11 and 15, T. 16 N., R. 15 E. That all the requirements of law were observed in said sale, and that Towne was a purchaser in good faith, and the deed from the sheriff to him was duly recorded. That Towne's title was legal and valid. That when Towne, under the agreement with Ludeling and associates for the terminus of the road on the property sold to them, which was also for one thousand dollars in cash, and the use of their personal influence to have the parish site fixed on said land he, Towne, informed them that his purchase of the land at sheriff's sale in October, 1868, should inure to the benefit of the children of his dead friend, R. W. Burney, and that the arrangement with J. J. Garrard relieved the estate of a debt which rendered it insolvent, and that the one-fourth reserved to himself in the division to be made after paying the liabilities of the estate would be transferred to the children of Burney; that he had already, under the advice of a family meeting, transferred to Garrard, a large creditor of the estate of Burney for twenty-four thousand dollars, an undivided half interest in said Secs. 11 and 15 in settlement of said claim, hence it was necessary that Garrard should join in the verbal agreement between Towne and Ludeling and associates.

Respondent avers that he and his co-respondents with the author of their title, Towne and Woodman's estate, from which Towne acquired, and the authors of Woodman's title, have held the property under title translative of property for more than thirty years and in good faith, and he pleads the prescription of ten and thirty years in support of his title and that of his co-respondents.

He further avers that in the meantime Garrard transferred his rights to Mrs. Lucy V. Ames, one of the respondents, and that Ludeling and associates complied with every stipulation in regard to the location of the terminus, the payment of the money and the location [47 La.Ann. 78] and mapping out of the town of Delta; a formal title, 1st day of May, 1869, was made by Towne to Ludeling and the railroad company of the interest in the lands arranged for on the basis of the original agreement, the act being passed before a notary public and recorded 5th May, 1869, in the parish of Madison. He further avers that about this time he and his associates were approached by the executor of O. O. Woodman's estate and other representatives, claiming that the estate of Woodman had never been divested of title to this property; that although there was of record a transfer to R. W. Burney of the property, they were in possession of a counter letter of Burney, given at the time, showing that the transfer was not real but for the purpose of O. O. Woodman, and under its terms they had a right to and would compel by suit the reconveyance of the lands to the estate and heirs of Woodman; that said heirs of Woodman proposed to confirm to respondents all the advantages accruing to them from the agreement with Towne and Gerrard, provided respondents would abandon Towne and Burne heirs and Mrs. Ames and act with them in suits against these parties.

Respondents, after a full examination...