Lang v. Fornea
| Decision Date | 13 November 1961 |
| Docket Number | No. 5251,5251 |
| Citation | 135 So.2d 643 |
| Parties | Norman LANG, Jr., et al. v. Docia FORNEA et al. |
| Court | Court of Appeal of Louisiana — District of US |
France W. Watts, Jr., Franklinton, for appellants.
Talley & Anthony, Bogalusa, for appellees.
Before LOTTINGER, LANDRY and REID, JJ.
This controversy arose when plaintiffs, Geralding Land Martin, Robert Lang, Jimmie R. Lang, and Norman Lang, Jr., as forced heirs, of Ethelbert Fornea Lang, filed suit against their uncles, namely, Robert H. Fornea, Curtis J. Fornea, Weldon W. Fornea, Alcus Fornea, Ruffin Fornea, Daniel E. Fornea, Tom Paul Fornea and J. Edward Fornea, and their grandmother, Docia Fornea, for partition of their grandfather's, and a deceased uncle, James Fornea's estate. The case was submitted by stipulation and upon the introduction of certain deeds in the record without any testimony.
The suit was submitted to the trial Judge upon offerings of counsel and briefs filed. After taking the case under advisement, judgment was rendered in favor of the plaintiffs and against the defendants.
The defendants, with the exception of Robert H. Fornea, appealed suspensively from the judgment in favor of the plaintiffs.
No appeal was filed in behalf of the defendant, Robert H. Fornea, therefore, the judgment of the District Court insofar as Robert H. Fornea's interest in his father, Robert D. Fornea's estate and his brother, James Fornea's estate is final.
The facts of the case were entered into the record by stipulation and there is no question in fact nor is there any question of law raised concerning plaintiff's undivided one-ninth (1/9th) of three fourths (3/4ths) of one twentieth (1/20th) interest in the Succession of James Fornea since defendants have admitted this interest, and, as such, they have the legal capacity and right to sue for a partition of his estate.
The crux of the case is whether the plaintiff's mother entered into a partition, or in fact sold or divested her interest in her father's share of the community to her mother and coheirs, therefore, divesting herself of all her right, title and interest, in and to her one-twentieth (1/20th) interest in the entire property to be hereinafter described. The deed relied upon by the defendant is identified in the Record as 'P--3', which we quote as follows, to-wit:
'State of Louisiana
'Be It Known, that this day, before me, Mrs. L. M. Mercer, a Notary Public, in and for the Parish, duly commissioned and sworn, personally came and appeared, Ethelbert Fornea Lang, Married one time and now living with her husband, Norman Lang, in same relations as when first married, who declared that she does by these presents, grant, bargain, sell, convey, and deliver with full guarantee of title, free from any encumbrances whatever, and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed unto Mrs. Docia Fornea, Robert H. Fornea, Curtis J. Foorea, Weldon W. Fornea, Alcus L. Fornea, accepting and purchasing the following described property with the improvements thereon and appurtenances thereto belonging, situated in the Parish of Washington, State of Louisiana, to-wit:
'All my right, title and interest of whatever kind and nature I own as forced heir of Robert D. Fornea, deceased, in his estate, including all lands, personal or mixed property of which he died possessed.
'To Have And To Hold said property unto said purchaser. their heirs and assigns forever. This sale is made for and in consideration of the sum of Twelve Hundred and no/100 Dollars, cash in hand paid, receipt whereof is hereby acknowledged, and a full acquittance granted therefor.
'The parties hereto agree to dispense with the certificate required by Article 3364 of the Revised Civil Code of this State and to exonerate me, said Notary, from all liability on account of its non-production and said parties declare that all taxes against said property are paid up to and including taxes of 19
'Thus done and passed at Varnado, Washington Parish, Louisiana on this 19th day of August, A.D. Nineteen Hundred and Thirty-three, in the presence of L. McMillan and Harvey Walker, two competent witnesses, who sign these presents with said appearers and me, said Notary, after due reading.
'/s/ Ethelbert Fornea Lang
'Witnesses:
/s/ L. McMillan
/s/ Harvey Walker
'/s/ Mrs. L.M. Mercer
Notary Public'.
Plaintiffs counter with the deed identified as 'P--4' passed before the same Notary and witnesses, on the same day, or at the same time as the 'purported' sale or ('P--3') which we quote as follows, to-wit:
'State of Louisiana
'Be It Known, that this day before me, Mrs. L. M. Mercer, a Notary Public, in and for the said Parish, duly commissioned and sworn, personally came and appeared Mrs. Docia Fornea, widow of Robert D. Fornea, Robert H. Fornea, Curtis J. Fornea, Weldon Fornea, Alcus L. Fornea, all of full age and residents of Washington Parish, Louisiana, who declared that they do by these presents, grant, bargain, sell, convey and deliver with full guarantee of title, free from any encumbrances whatever, and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed unto Ethelbert Fornea Lang, accepting and purchasing the following described property with the improvements thereon and appurtenances thereto belonging, situated in the Parish of Washington, State of Louisiana, to-wit:
'13.09 acres * * *.
'The consideration hereinabove expressed is declared to be paid for by deed this day executed by me to vendors herein, of all right, title and interest in and to the estate of my deceased father, Robert D. Fornea, consisting of all interest, in all property left by him, real, personal or mixed, except the above described 13.12 acres.
'Also it is agreed that the forced minor heirs of the deceased Robert D. Fornea, namely, James Fuffin, Daniel, Tom Paul and Mutton Fornea are to sign their undivided interest in the above described 13.10 acres over to the said Ethelbert Fornea Lang, when they reach legal age, and she in turn agrees to sign her rights, title and interest in all property left by Robert D. Fornea, deceased over to them. As she has done to the ones of legal age now.
'To Have And To Hold said property until said purchaser her heirs and assigns forever. This sale is made for and in consideration of the sum of Twelve Hundred and No/100 Dollars, cash in hand paid, receipt of which is hereby acknowledged and a full acquittance granted therefor. The parties hereto agree to dispose with the certificate required by Article 3364 of the Revised Civil Code of the State and to exonerate me, said Notary, from all liability on account of its non-production and said parties declare that all taxes against said property are paid up to and including taxes of 1932.
'Thus done and passed at Varnado, Washington Parish Louisiana on this 19th day of August A.D. Nineteen Hundred and Thirty-three, in the presence of L. McMillan and Harvey Walker, two competent witnesses, who signed these presents with said appearers, and me, Notary Public, after due reading.
'/s/ Mrs. Docia Fornea
/s/ Robert D. Fornea
/s/ Curtis J. Fornea
/s/ Weldon Fornea
/s/ Alcus L. Fornea
/s/ Ethelbert Fornea Lang
'Witnesses:
/s/ L. McMillan
/s/ Harvey Walker
'/s/ Mrs. L. M. Mercer
Notary Public'.
Our esteemed brother below held, in effect, and we find correctly so, that the two acts must be construed together in order to give them the proper legal effect as intended by the parties at the time the acts were passed. This is particularly true since one act refers to the other for the true consideration.
We note that in 'P--3' the purported sale was made to the mother and only four of the coheirs, the minor heirs were not included.
The question of possession is significant insofar as the issue of prescription is concerned, particularly in view of the pronouncements of LSA-Civil Code Article 1305, which we quote:
'When one of the heirs has enjoyed the whole or part of the succession separately, or all the coheirs have possessed separately each a portion of the hereditary effects, he or they who have thus separately possessed, can successfully oppose the suit for a partition of the effects of the succession, if their possession has continued thirty years without interruption.'
The issue of prescription under this article could not apply since the purported partition was passed in 1933 and this suit was filed in 1957, therefore, on its face thirty years had not lapsed.
It appears from the record that in certain instruments executed subsequent to the purported sale or partition contained in Exhibits 'P--3' and 'P--4', the defendants herein acknowledge plaintiffs' mother to be defendants' co-owner of the property in question.
The instruments are 'P--1', containing the Judgment of Possession dated October 22, 1934; 'P--6' corrective deed of assignment dated 9th May 1936, 'P--7' oil lease dated October 1934; 'P--S' oil lease dated 2 November 1944; 'P--10' assignment of a lease dated 26 March 1936.
The plaintiffs' mother was treated by the defendants as a record co-owner and took an active part by being a co-signer of the various instruments above referred to.
This evidence outweighs the defendants which is negative in character.
We therefore agree with our learned brother below that the intent of the parties at the time the two instruments in question, namely 'P--3' and 'P--4', were passed that the purported sale was in truth and in fact an attempted partition.
Since we have found the instruments in question are attempted partitions as opposed to sales we need not discuss or pass upon appellants' contentions that the 'sale' must first be set aside or rescinded before the plaintiffs can seek a partition of their mother's interest in their...
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