McCall v. Irion

• Decision Date: 01 December 1889
• Docket Number: 10,469
• Citation: 41 La.Ann. 1126,6 So. 845
• Court: Louisiana Supreme Court
• Parties: MRS. WIDOW OLIVIA MCCALL v. A. B. IRION ET ALS. W. H. CHAFFE ET AL., WARRANTORS

6 So. 845

41 La.Ann. 1126

MRS. WIDOW OLIVIA MCCALL v. A. B. IRION ET ALS. W. H. CHAFFE ET AL., WARRANTORS

No. 10,469

Supreme Court of Louisiana

December 1, 1889

APPEAL from the Twelfth District Court for the Parish of Avoyelles. Coco, J.

Cullom & Cappel, for Plaintiff and Appellant.

Irion &amp Larfargue, for Defendants and Appellees.

Henry C. Miller, for Estate of T. D. Miller, Defendant and Appellee.

WATKINS J. Mr. Justice Fenner recuses himself on the ground of relations to Warrantor Payne, and BERMUDEZ, C. J., being absent at the argument on the hearing of the merits, takes no part in the opinion.

OPINION

WATKINS, J.

This case was before us at Opelousas in July, 1888. Vide 40th Annual at page 690 et sequentes. Therein a full and explicit statement of the pleadings was given and it need not be repeated here. It will suffice, for all present purposes, to restate a few leading facts as pertinent to a trial on the merits.

This is a petitory action in the ordinary form, in which Mrs. McCall as plaintiff, sets up a title in herself, to an undivided one-half interest in the Reverly or Sans Souci plantation, in the Parish of Avoyelles, by inheritance, she claiming as the only sister, and sole heir-at-law of John G. Wilson, deceased, who acquired same by purchase of Sarah Ogden, wife of James A. Kinhead -- the other undivided one-half belonging to Euphrosine Ogden, wife of M. P. Vernon -- the entire tract containing about 1900 acres.

The defendant, Miller, claims ownership of one-half of the Wilson one-half interest -- i. e. in one-fourth of the whole -- by purchase from the Chaffes, whom he calls as his warrantors; and they claim under an execution sale against Mrs. Elizabeth McMath, in foreclosure of a conventional mortgage executed by her; she having acquired title under execution sale in satisfaction of a judgment in a suit entitled George R. King, executor, vs. J. G. Wilson, for $ 18,600, same being the balance due by the defendant on execution, on the original purchase price of the property in question.

The defendant, Irion, claims ownership of the other one-half of the Wilson one-half interest, by purchase from Henry M. Payne, whom he calls in warranty; and Payne claims to have derived title thereto from the succession of Walter A. Kinhead, by appropriate judicial proceedings had in his mortuaria.

The main question for determination then, is the validity and sufficiency of the sheriff's deed of sale to the property in dispute, bearing date January 5th, 1867, and under which defendants claim ownership and possession.

The substance of plaintiff's averments is that her deceased brother, John G. Wilson, was the owner of said property until the date of his death, February 14th, 1879; that he had never been divested of his ownership by any legal process or conventional transfer; that on or about the 5th day of January, 1867, Elizabeth McMath and Walter A. Kinhead, during his absence from the parish, took possession thereof; and having no right or title to said property, they could convey none to the defendants' authors, and, therefore, they are in possession without any legal right, and are possessors in bad faith, and liable for rents and profits.

Defendants and warrantors make, substantially, the same answers; and their exceptions are outlined in our former opinion. When the cause went down to the court below, their answers were elaborated, their defences enlarged, their exceptions referred to the merits and, on the trial, there was a judgment in favor of the defendants, rejecting plaintiff's demands as in case of non-suit, and, therefrom, she has appealed.

I.

(a.) The following appear to be the conceded facts, viz.:

That John G. Wilson was the brother of the plaintiff, and she is his sole legal heir.

That Wilson purchased the undivided one-half of the Sans Souci plantation, in 1857, from Sarah Ogden, wife of James A. Kinhead, on terms of credit; and, of the purchase price of $ 60,000, there remained due in 1860, $ 18,000, secured by mortgage.

That Sarah Ogden died in 1858, leaving a will in which her husband was instituted universal legatee, and George R. King was appointed executor. That, subsequently, James A. Kinhead died, leaving a will, in which he made a special bequest of $ 10,000 in favor of his brother, Walter; one of $ 10,000 in favor of his sister, Mrs. Elizabeth McMath; and one of $ 5,000 in favor of his brother, Thomas. That George R. King was qualified and confirmed executor, and the respective wills of Sarah Ogden and James A. Kinhead were duly probated and admitted to record. That, in 1860, King, executor, proceeded via executiva to foreclose Sarah Ogden's vendor's mortgage against the land in Wilson's possession. That no further proceedings were taken thereunder until 1866, when the executory proceedings were converted into proceedings via ordinaria, and, upon the defendant's confession of date October 6th, a final judgment was rendered and signed on the twelfth, recognizing and making executory said mortgage, as securing said debt for the residue of the purchase of said land. That under said definitive judgment an execution was issued, the mortgaged property seized, advertised and sent to sale, on the 5th of January, 1867, and the sheriff adjudicated same, in indivision, to Walter A. Kinhead and Mrs. Elizabeth McMath, as the purchasers thereof, at the stated price of $ 4,500. That upon the same day and date, the sheriff prepared an act of sale in due form of law, in strict conformity with said adjudication, signed the same in the presence of two subscribing witnesses, affixed and cancelled the necessary amount of internal revenue stamps that were required at that time, and delivered same into the custody and possession of the clerk of court, as required by law. That said deed was never registered in the book of conveyances until after the institution of this suit, though the adjudicatees entered into possession of the property immediately after the sale, and they and their vendees have continued to possess the same ever since. That John G. Wilson remained in the vicinity for a short time after the sale, though, apparently, exercising no rights of ownership over the property, which was, in the month following, leased to one Lovejoy, and then went to New Orleans, where he remained until his death in 1879. That, although the judgment of King, executor, against Wilson was not credited with the proceeds of sale, or any other sum, it has been satisfied in no other way than as indicated by the said proceedings and sale. That, during his lifetime, Wilson never asserted, judicially or otherwise, any claim or pretension of ownership to this property. That all the judicial proceedings and notarial conveyances, through which the successors in title of Walter A. Kinhead and Elizabeth McMath claim the property, are regular in form, and sufficient in terms to convey the property; and same are duly recorded.

(b.) The following appear to be the disputed facts, viz.:

That Walter A. Kinhead and Elizabeth McMath never possessed as owners; the averment of plaintiff's petition being that they took arbitrary and unauthorized possession without the color of legal right, and are, therefore, mere naked trespassers. That said Kinhead and McMath never paid any part of the sum of $ 4,500 stated in the sheriff's deed as the purchase price. That John G. Wilson never recognized or ratified said sale or adjudication, either expressly or by way of implication. That the successors of said Kinhead and McMath in title, were in legal bad faith, also, and all were bound for the payment and restitution of revenues.

(c.) This resume of conceded and disputed facts narrows the controversy to one principal issue, and points to the sheriff's sale of January 5th, 1867, as the pivot on which our decision must turn; for one of two propositions is true: 1st, That the sheriff's sale was a valid one, and conferred title on the adjudicatees; 2d, that the sheriff's deed was a title translative of property, and a foundation of defendants and warrantors' claim of ownership by prescription, otherwise defendants title must be rejected, and that of plaintiff recognized.

II.

The first question to which we will devote our attention is the validity vel non of the sheriff's sale, and his adjudication of Wilson's property to Walter A. Kinhead and Elizabeth McMath, of date January 5th, 1867.

(a.) It is apparent, and should be at once observed that Mrs. McCall, suing in virtue of her right as sole heir-at-law of John G. Wilson, for property that has descended to her as an inheritance, occupies the exact attitude before the court, in respect to the sheriff's sale, as Wilson would himself occupy as plaintiff. An heir can have no higher right than his ancestor in title.

"The heirs of a deceased person are seized of his succession at the very instant of his death, and the right of possession that the deceased had, continues in them, with all of its defects and advantages; the change in the proprietor producing no change in the nature of his possession." Heirs of Castle vs. Floyd, 38 Ann. 583.

From this theorem comes the proposition that there was no necessity for the registry of the sheriff's deed of sale to A. Kinhead and McMath, in order to affect the heir of John G. Wilson, the seized debtor, with notice; for it has been decided "that an unrecorded deed transfers the property to the purchaser just as effectually as a recorded deed, as against all the world, except creditors of the vendor, and bona fide purchasers from him without notice." Logan vs. Hebert, 30 Ann. 732; White vs. Sheriff, 32 Ann. 130.

(b.) As preliminary to the discussion of the validity of the deed of the sheriff, comes the question of the admissibility in...