Leverett v. Loeb

• Decision Date: 21 May 1906
• Docket Number: 15,817
• Citation: 117 La. 310,41 So. 584
• Court: Louisiana Supreme Court
• Parties: LEVERETT v. LOEB et al

41 So. 584

117 La. 310

LEVERETT v. LOEB et al

No. 15,817

Supreme Court of Louisiana

May 21, 1906

Rehearing Denied June 23, 1906.

Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.

Action by Mrs. J. E. Leverett against Herman Loeb and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Leon Rutherford Smith, for appellant.

Sidney Levy Herold, for appellees.

MONROE J. NICHOLLS, J., takes no part, not having been present at the argument.

OPINION

MONROE J.

Statement of Lease.

This is a petitory action for the recovery of certain real estate in Shreveport (described as "Lot 23" in 10 acre lot 2), concerning which the evidence and admissions in the record show that in 1887 it was purchased by plaintiff, a married woman, by an act which recites that the purchase was made with her paraphernal funds, and by way of compromise of a claim of ownership which she had set up; that in 1888 it was donated by her to her husband, who, in 1891, mortgaged it to secure $ 400, borrowed by him from the defendant Loeb; that in 1892 it was sold by the sheriff in satisfaction of the mortgage thus granted, under a writ of seizure and sale issued pursuant to an order made by the court a qua, and was purchased by defendant, who had been in open, peaceable, uninterrupted possession as owner under the title so acquired for more than 13 years at the time that he was disturbed by this suit. It may be added that neither the act of mortgage above mentioned nor the sheriff's deed recite the manner in which the property had been acquired by the mortgagor and seised debtor, and that there is no evidence in the record showing that defendant, Loeb (who is the only party defendant who has a real interest) knew that it had been acquired by donation. Among other defenses, the plea of the prescription of 10 years, acquirendi causa, was set up, and plaintiff prosecutes this appeal from a judgment maintaining the same.

Opinion.

It is said by the learned counsel for plaintiff that as the law provides that "all donations made between married persons, during marriage, though termed inter vivos, shall always be revocable," the prescription relied on can have no application, since, to apply it, would be to defeat the donor's right to revoke, and, in effect, to amend the law so as to make it read "shall always be revocable, save against third persons acquiring title by prescription." The effect of the prescription is, however, to establish as valid the title of the defendant, provided that title be "just," and whether it be just or not depends upon the title itself, and the circumstances under which it may have been acquired and held, and not necessarily upon the title of its supposed author. In fact, the prescription in question finds its ordinary application in cases where the apparent title established by it is derived from one who held no title whatever, and it would seem that it ought not to be the less applicable, because the apparent title so established is derived from one who held a title though defeasible, or revocable. This appears evident from the language of the Civil Code, to wit:

"Art 3478. He who acquires an immovable in good faith and by a just title, prescribes for it in ten years."

"Art 3483. To be able to acquire by the species of prescription mentioned in this...