Isacks v. Deutsch

• Decision Date: 24 September 1959
• Docket Number: No. 4874,4874
• Citation: 114 So.2d 746
• Parties: Leonard S. ISACKS, Plaintiff-Appellee, v. Hermann B. DEUTSCH, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 746

114 So.2d 746

Leonard S. ISACKS, Plaintiff-Appellee, v. Hermann B. DEUTSCH, Defendant-Appellant.

No. 4874.

Court of Appeal of Louisiana, First Circuit.

Sept. 24, 1959.

Deutsch, Kerrigan & Stiles, Guy W. Smith, New Orleans, Dalton J. Barranger, Frederick S. Ellis, Covington for appellant.

Philip E. Pferrer, Covington, for appellee.

ELLIS, Judge.

This is a petitory action, which resulted in a judgment for the plaintiff, involving the ownership of 'A certain strip or parcel of land lying along Bayou Rouville in the Parish of St. Tammany, State of Louisiana, reserved from survey of tracts in the North Oaklawn Subdivision as per plan of said North Oaklawn made by A. G. Mundinger, C.E., on June 20th, 1911, which plan of survey is on file and of record in the Clerk's office in St. Tammary Parish, Louisiana, and the said strip of land going the entire length of said subdivision as is delineated on said map and lying between the Bayou Rouville and the tracts numbers as follows: * * * 310 * * * of the said North Oaklawn Subdivision,' which was purchased by the plaintiff by warranty deed on June 18th, 1947.' This suit was filed on September 14, 1957.

The defendant has appealed from an adverse judgment and the only issues before this court are based upon the sole prescriptive pleas made as a defense to the suit, viz., that of ten years acquisitive prescription under Article 3478 of the LSA-Civil Code and of thirty years under Article 3499 of the LSA-Civil Code.

The common authors of both plaintiff's and defendant's chain of title were Dodt and Robbert, who laid out the North Oaklawn Subdivision and who had the Mundinger survey thereof made and recorded in 1911. Plaintiff purchased the strip in dispute (along with other remaining property of the subdivision) from Dodt and Robbert Inc. in 1947.

The transfers in defendant's chain of title and descriptions contained therein necessary for a full understanding and decision in this case, in addition to the above, are one from Mrs. Mary Bosworth, who had acquired from Dodt and Robbert on July 11, 1916, to Mrs. Mary Brown, dated July 12, 1926, wherein the following property was transferred:

'All and singular the hereinafter described property situated in what is known as North Oaklawn, in the Parish of St. Tammany, State of Louisiana, according to a survey made by A. G. Mundinger, C.E. dated June 20th, 1911, and which survey is duly registered in C.O.B. 94, folio ---, of the official records of St. Tammany Parish, La., and upon which said plan or survey said property is more fully described as follows, to-wit:

'Two certain tracts of land numbered according to said plan, Nos. Three Hundred and Nine (309) and Three Hundred and Ten (310).

'Tract No. Three Hundred and Ten (310) fronts on Bayou Rouville on a line running S. 35 degs. 29 389 measures more or less 189 ft. in width and 1184 ft. on the line dividing it from tract No. 309, and 1131 ft. on the line dividing it from tract No. 311, and is bounded in the rear by the Public Road.

'Being the same property acquired by Mrs. Mary Bosworth from John C. Dodt and Henry J. Robbert as per deed recorded in C.O.B. 67, folio 408 of the official Conveyance Records of St. Tammany Parish, Louisiana.'

Next is a deed from Mrs. Margaret Brown to H. Alfred McEnery, dated September 17, 1927, in which the description is exactly the same as in the deed from Mrs. Mary Bosworth to Mrs. Margaret Brown.

Deed from H. Alfred McEnery to Hermann B. Deutsch, dated August 31, 1950, this vendee being the defendant herein, in which the property is described as follows:

'That portion of ground, together with all the buildings and improvements thereon, and all of the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining, situated in what is known as North Oaklawn, Parish of St. Tammany, Louisiana, which portion of ground is designated as Lot No. 310 according to a survey by A. G. Mundinger, C.E., dated June 20, 1911, which survey is duly registered in COB 94, folio of the records of St. Tammany Parish, and according to a sketch of survey by E. J. Champagne, C.E., dated August 21, 1950, annexed hereto, said portion of ground is bounded in the rear by the public road and has a depth between parallel lines, on the side adjacent to Lot No. 309 of 1330.0 feet, and on the side adjacent to Lot No. 311 of 1224 feet, to the centerline of Bayou Rouville, measuring 189 feet in width in the rear and 201.3 feet, more or less, in width on Bayou Rouville.

'Being a portion of the same property acquired by vendor from Mrs. Margaret Brown by act before Martin H. Manion, notary Public, in and for the Parish of Orleans, dated September 17th, 1927 recorded in COB 101, folio 229 of the official records of St. Tammany Parish, Louisiana.

'No warranty is granted herein by Vendor as to the following portions of the above transferred property.

'That portion of said above described property which lies west of the surveyed line bearing N 41 41 E, and East of the centerline of Bayou Rouville, Having a width of 201.3 between equal and Parllel lines, all as more fully appears from the annexed blue pring of survey by E. J. Champagne dated August 21, 1950.'

Introduced in evidence is a true copy of the plat of North Oaklawn Subdivision which was surveyed by Mundinger, C.E., on June 20, 1911, and the plat made as the result of the survey was filed with the Deputy Clerk of Court and Ex Officio Recorder of St. Tammany Parish on June 29, 1911. A comparison of the lots shown on this map with the descriptions in all of the deeds except that of the defendants shows that the eastern boundary of the lots do not go to Bayou Rouville but leave between said boundaries and the bayou a strip of ground, and particularly in front of Lot 310 with which we are concerned is the strip or parcel of land which the plaintiff purchased from Dodt and Robbert, the dedicators and previous owners of North Oaklawn Subdivision.

It is the defendant's contention that that portion of the description which states '* * * Tract No. 310 fronts on Bayou Rouville * * *' should be given full effect and should control over the map or plat of North Oaklawn Subdivision to which each deed refers and states: '* * * and upon which said plat or survey said property is more fully described as follows, to-wit: * * *'. There can be no dispute as to the fact that Lot 310, and, in fact, none of the lots, as shown on the map of the subdivision, front within the literal meaning on Bayou Rouville. To give effect to the defendant's contention would be to approve as controlling four words in the descriptions 'fronting on Bayou Rouville,' rather than the plat of the subdivision of North Oaklawn. While we are of the opinion that the portion of the description to which the defendant wishes to give full force and effect must be considered in connection with the entire description and when done in that manner is not to be taken literally, however, the question posed is whether the map controls or the description, which, taken literally, would be contrary thereto.

The Supreme Court as well as the Courts of Appeal of the State of Louisiana have answered this question in positive and unequivocal language to the effect that in such a case the map or plat controls.

In Gray v. Coco, 113 La. 33, 36 So. 878, 881, the court stated:

'Under these circumstances, the plaintiff cannot recovery, because, having purchased only the rights, such as they might be, of the heirs of Gibert, he is in no better position than they, and they are in no better position than would be Gibert, if he were alive, and Gibert could not recover, because in view of the evidence adduced, the doubt as to his intention and that of his vendee, suggested by the difference between the description contained in the act by which he made the sale to defendant's author and that contained in the diagram with reference ot which that sale was made and the vendee put in possession, must be resolved in favor of the description as contained in the diagram, and of the vendee. Canal Bank v. Copeland, 6 La. 543; Millikin v. Minnis, 12 La. (539) 546; Kirkpatrick v. McMillen, 14 La. 497; Palangue v. Guesnon, 15 La. 311; Municipality No. 2 v. Palfrey, 7 La.Ann. 497; Buisson v. McNeil, 9 La.Ann. 445; Wurzburger v. Meric, 20 La.Ann. 415; Whitney v. Saloy, 26 La.Ann. (40) 41; Burke v. Wall, 29 La.Ann. (38) 46, 29 Am.Rep. 316; Brown v. Broussard, 43 La.Ann. 962, 9 So. 911; Bryan v. Wisner, 44 La.Ann. 832, 11 So. 290; Gladdish v. Godchaux, 46 La.Ann. 1571, 16 So. 451; Messick v. Mayer, 52 La.Ann. (1161) 1176, 27 So. 815.'

Again in Maginnis Land & Improvement Co. v. Marcello, 168 La. 997, 123 So. 653, 654, which was a petitory action and involved pleas of prescription filed by the defendants, the court stated:

"Plaintiff was the owner of the St. Elizabeth plantation which it acquired on January 23, 1900. They had it surveyed and subdivided into smaller tracts after they bought it and a map, representing the survey was made on April 15, 1902, and was subsequently amended May 23, 1903. The original and amended maps were recorded in the Conveyance Records of this Parish.

"The defendants' titles are all derived from the plaintiff herein, the original sales all dating back in 1903 before the closing of Bayou Lafourche.

"All the properties are described as having a front of so many feet on Bayou Lafourche and in each deed also reference is made to the map of Coleman and Malochee of April, 1902. Each tract is identified by the particular letter or initial it bears on the map and the dimensions in the title correspond with those on the map. Some of the deeds contain sketches or abstracts from the map showing the particular tract conveyed in that particular deed.

"The map itself and the diagrams incorporated in some of the deeds show that each tract fronts on the public road along Bayou Lafourche, and not on Bayou Lafourche itself as recited...