Lee v. Long

• Decision Date: 04 June 1928
• Docket Number: 29225
• Citation: 118 So. 320,166 La. 1084
• Court: Louisiana Supreme Court
• Parties: LEE v. LONG

118 So. 320

166 La. 1084

LEE v. LONG

No. 29225

Supreme Court of Louisiana

June 4, 1928

Rehearing Denied October 2, 1928

Appeal from Eleventh Judicial District Court, Parish of De Soto; Hal A. Burgess, Judge.

Action by Elmo P. Lee against John J. Long, in which defendant's warrantor was joined as a party. From the judgment, defendant named appeals.

Judgment annulled and rendered.

Parsons & Colvin, of Mansfield, for appellant.

Lee &amp Williams, of Mansfield, and Thigpen, Herold, Lee & Cousin, of Shreveport, for appellee.

OPINION

ROGERS, J.

This is a petitory action involving title to the following described tract of land in the parish of De Soto, viz.:

"Beginning at the southeast corner of the northwest quarter of section 30, township 14 north, range 14 west; thence north 32 chains thence west 20 chains; thence south 32 chains; thence east 20 chains to place of beginning, containing 64 acres, more or less."

The plaintiff alleged that he acquired the property from Dan Hall on March 16, 1927, by deed duly recorded in the conveyance records of De Soto parish, and that the defendant John J. Long is in unlawful possession thereof.

The defendant denied that plaintiff was the owner of the property, alleging that his deed is a mere simulation. In the alternative, defendant averred that plaintiff's title must fall, because defendant had acquired the property from Dan Hall on December 17, 1926, by a deed, duly recorded December 20, 1926, in which, although the beginning point is erroneously stated, the property is nevertheless reasonably identified by references to other recorded deeds and mortgages; that plaintiff had both actual and constructive notice from the public records that defendant had previously acquired title to the property and that he was in possession as owner thereof by virtue of his recorded title. Defendant prayed that his vendor, Dan Hall, be made a party to the suit; that the error in his deed be corrected; that plaintiff's demands be rejected; and, in the alternative, for judgment against his warrantor.

The court below rendered judgment in favor of plaintiff against defendant, and in favor of defendant against his warrantor. The defendant has appealed.

The deed from Dan Hall to the plaintiff recites a cash consideration of $ 1,250 for the transfer of the property. The testimony adduced on the trial of the case shows that the real consideration for the transfer consisted in part in the discharge of a debt due by the vendor to the vendee; in part by the assumption by the vendee of a debt due by the vendor to a third person; and in part by the unsecured promissory note of the vendee in an amount sufficient to make up the difference of the purchase price. In these circumstances, the defense that the sale was a simulation cannot be sustained, and this is so, notwithstanding that the consideration for the transfer was much less than the actual value of the property, which is in excess of $ 2,000.

The remaining question for decision, therefore, is whether plaintiff is bound by the prior conveyance of the property by his vendor to the defendant, notwithstanding the error in the description contained in the latter's deed? We think that he is. On December 17, 1926, Dan Hall, the common author of the parties, transferred to the defendant, John J. Long:

"A certain tract of land particularly described as follows: Beginning at the southwest corner of the northwest quarter of section 30, township 14 north, range 14 west; thence north 32 chains; thence west 20 chains; thence south 32 chains; thence east 20 chains to place of beginning, containing 64 acres, more or less, together with the buildings and improvements thereon. See Book 23, folio 194, and Book 30, folio 187 of the Conveyance Records of De Soto Parish, La."

The sale was made in consideration of the assumption of the part of the vendee of a mortgage for $ 2,200, recorded in Mortgage Book 27, folio 530, dated November 29, 1925, and bearing against the property conveyed. The act of sale from Dan Hall to the defendant John J. Long was recorded on January 18, 1927, in the Book of Conveyances No. 79, folio 119.

On September 26, 1908, J. J. Hollingsworth sold to William Harris, Jerry Thomas, Dan Hall, and Jesse Morgan (acquiring an undivided one-fourth interest each) certain tracts of land lying in sections 19 and 30, township 14 north, range 14 west, parish of De Soto. This deed was recorded in the Conveyance Records of the Parish in Book 23, folio 194, on December 17, 1908.

On December 22, 1911, William Harris, Jerry Thomas, Dan Hall, and Jesse Morgan executed an act of partition in kind among themselves of certain portions of the property owned by them in indivision. By virtue of this partition, Dan Hall acquired in full ownership the tract of land as described and claimed in plaintiff's petition. The act of partition was registered in the Conveyance Records of the Parish in Book 30, folio 187, on December 22, 1911.

In the mortgage and in the sale from Dan Hall to John J. Long, the property mortgaged and sold was inadvertently described as beginning at the "southwest" corner instead of at the "southeast" corner of the quarter section. Nevertheless, in the act of mortgage following the description appears the following declaration, viz.: "For mortgagor's title see Book 23, folio 194, and Book 30, folio 187, of the Conveyance Records of De Soto Parish, Louisiana" -- and in the act of sale in connection with the description, as hereinabove quoted, appears the following caution, viz.: "See Book 23, folio 194, and Book 30, folio 187, of the Conveyance Records of De Soto Parish, La."

Plaintiff's contention, briefly stated, is that the description of the property set forth in the deed from Hall to Long is certain and unambiguous, and is not qualified or amended so as to operate against third persons by the words: "See Book 23, folio 194, and Book 30, folio 187, of the Conveyance Records of De Soto Parish, La."

It cannot be disputed that it was the intention of Dan Hall to sell and of John J. Long to purchase the property described...