Messick v. Mayer
| Decision Date | 01 April 1900 |
| Docket Number | 13,156 |
| Citation | 27 So. 815,52 La.Ann. 1161 |
| Court | Louisiana Supreme Court |
| Parties | WILLIAM R. MESSICK ET AL. v. GEORGE L. MAYER ET ALS |
Rehearing Considered.
APPEAL from the Tenth Judicial District, Parish of Avoyelles -- Cappel, J., and hoc.
A. J Lafargue and H. C. Edwards, for Plaintiffs and appellees.
William H. Peterman, for George L. Mayer, Defendant, Appellant.
Joffrion and Joffrion, for Mrs. J. J. Callaham, Wife of William J Bentley, Defendant, Appellant.
Couvillon and Son, for Lucien Guillory, one of the Defendants Appellees
The plaintiffs Mary Waddill and William R. Messick, representing themselves to be, the former surviving widow and partner in community of William R. Messick, Sr., deceased, and the latter his only son and heir, instituted this suit as joint and equal owners and proprietors, for the recovery of the following described property:
(1) The south half, and north half of the northwest quarter of section 27, township 2 south, range 6 east.
(2) The undivided one-half of the whole of section 10; the west half of the southwest quarter of section 35; the whole of section 21; and the south half of northwest quarter of section 27, all in township 2 south, range 6 east; and the west half of section 3, in township 2 south, range 5 east -- containing in all, the quantity of about 1280 acres, said property being worth the sum of $ 5,000.00.
They represent that said property was acquired by William R. Messick, Sr., deceased, during his marriage with the plaintiff, Mary F. Waddill, and that same belonged to the community of acquets and gains existing between them; and that said Messick purchased same at tax collector's sale on the 8th day of October, 1873, "as will appear by reference to said act of sale and the plat attached thereto, which are annexed to and made parts of this petition."
They represent that William R. Messick, Sr., died in January, 1877, and that the plaintiff, Mary F. Waddill, owns one undivided half of said property, as surviving widow in community, and that plaintiff William R. Messick owns the other half as heir of his father.
They represent that the title to the property is still in the name of William R. Messick, Sr., deceased, and was never sold by him nor by his administrator after his death.
They further represent that Mary F. Waddill was the natural tutrix of the petitioner, William R. Messick -- who is now of full age -- and that as such tutrix, she administered the estate of the deceased, but never caused the aforesaid property to be sold.
They represent that the defendant, George L. Mayer, claiming to be the owner of said property, took possession of it, and has been exercising acts of ownership over it, and has cut down and used and sold valuable trees or timber therefrom.
That, without any right or title thereto, and with full knowledge of the fact that it belongs to petitioner, he has been and still is, illegally and wrongfully claiming said land as his own, and has sold and is now offering to sell portions of same to various persons.
That said Mayer had sold eighty acres thereof to Lucien Guillory, who has possession of same under his pretended title, and has cut down and used the timber of same, and is cultivating the larger part of it.
That said Mayer has, also, sold and conveyed 160 acres of said land to Mrs. Joyce J. Callaham, who has same in possession, cultivating it, and who has used the trees and timber therefrom.
They allege that said Guillory and Mrs. Callaham bought said land from Mayer with full knowledge of the fact that it belonged to your petitioner; and that they are all trespassers and possessors in bad faith, and liable for rents and revenues. They aver that they have been in possession during the last eight years, and the rents are worth five dollars an acre per annum, and that timber cut down and removed is worth the sum of $ 2,900, for which they are indebted in solido to petitioners.
Then, the following pertinent allegation occurs, to-wit:
"Your petitioners aver further, that the possession and claim to ownership of said land by the aforesaid persons were only discovered by your petitioner since the last twelve months."
The petition then concludes with the statement, "that George L. Mayer has not and never had any title to, or right to said land, and illegally and wrongfully took possession of it and exercised acts of ownership upon it;" and that neither of his vendees have any title thereto. The prayer of the petitioners is, that they be decreed the lawful joint owners of the property and put in possession thereof, and quieted in their title, and that they have and recover $ 2,900 for rents, revenues and worth of timber used and destroyed.
Defendant, Mayer, for answer, pleads the general issue first, and then denies that plaintiffs have any right, title or interest in the land claimed.
That if plaintiffs ever had any title to the interest claimed in the lands, which is denied, same is prescribed by the lapse of 1, 2, 3, 5, 10 and 20 years, which said prescriptions are specially urged in bar of plaintiffs' action and demand.
He further avers that if plaintiffs' ancestor, William R. Messick, Sr., deceased, ever had title to the undivided interest now claimed by said plaintiffs in this suit, same passed to him by virtue of the adjudication made at the succession sale of William R. Messick, Sr., deceased, on the 6th day of December, 1877, which sale is of record in the mortuary proceedings of the succession of said Messick, and also, recorded in the conveyance records of the Parish of Avoyelles, where the property is situated.
Further answering defendant, Mayer, avers, that, if the court should hold, that under the aforesaid adjudication to him at said succession sale, but one undivided half interest in and to the property described passed to him as adjudicatee, then he avers that he became the owner of the other undivided half by virtue of an adjudication at sheriff sale in the suit of J. A. C. Wadsworth vs. Chas. F. Huesman, No. 2533 of the docket of the parish court of Avoyelles, which said adjudication is made to appear by an act of sale and transfer from Louis A. Joffrion, then Sheriff of said parish, to this respondent, dated December 4th, 1886, and recorded December 27th, 1886, in book of conveyance of said parish.
He further avers that said title was judicial and translative of property, and that he has been in the possession thereof under said title in good faith, for more than ten years prior to the institution of this suit; and he specially pleads the prescription of ten years in the maintenance of said title, and against the claims and demands of said plaintiffs.
Defendant further avers, that the said judicial title can not be legally assailed by said plaintiffs in this action, as the same is a collateral attack thereon, and that said judicial title can be annulled or set aside only in a direct action instituted for the purpose of setting same aside, contradictorily with him.
He further answers, denying that he is a possessor in bad faith, but shows to the court that every muniment of his aforesaid title rests upon public, judicial sales made by and under the authority of a court of competent jurisdiction in judicial proceedings by public outcry, after due and legal advertisements.
He further avers that being a possessor in good faith, he is entitled, should his title be annulled, to have and recover from said plaintiffs, the price he paid for said property claimed by the plaintiffs, with legal interest thereon in the sum of $ 1,500 from December 4th, 1886, together with all taxes, penalties and interest paid thereon, amounting in addition to the sum of fifteen hundred dollars.
His prayer is in conformity with his answer, and he demands judgment for the sums specified in the event that his title is annulled.
Lucien Guillory, in answer to plaintiffs' petition, sets up title derived from defendant, Mayer, making claim for improvements and for the amount of the purchase price paid, calling Mayer in warranty, alleging good faith and a valid title.
Mrs. Calliham makes a similar answer, and a like claim for improvements and taxes paid, and sets up title from Mayer in good faith, and for a valuable consideration, and in the event of eviction, for improvements made and taxes paid.
Both Calliham and Guillory urged pleas of prescription similar to those of Mayer.
On these issues, the case went to trial, and upon the administration of evidence, the judge ad hoc rendered judgment in the plaintiffs' favor for one undivided half of the following described property:
Section 10; west half of southwest quarter of section 35; section 21; south half and northwest quarter of section 27; all in township 2, range 6; also west half of section 3, township 2, range 5 -- the whole including 2,160 acres.
The description of the land in the judgment and that in plaintiffs' petition are identical, with the exception that the judgment gives one-half undivided interest in south half and northwest quarter of section 27, whereas the whole interest is claimed; but the judgment conforms to the description in the tax collector's deed to Messick, with the single alteration or change in the word "and" for the word "of," to conform to the plat annexed to the tax deed.
The claim of the plaintiff is, that she, as natural tutrix, administering the succession of her deceased husband, procured an order of court for the sale of an undivided half interest in the property as described in the tax collector's deed, in October, 1897, for the payment of succession debts, and that Mayer became the purchaser thereof; and as a result of mis-description of the property in the tax collector's deed, he acquired...
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Beal v. Ward
...responsibility by accepting under the benefit of inventory. Landreaux et al. vs. Louque, 43 La. Ann. 234, 9 So. 32; Messick vs. Mayer, 52 La. Ann. 1161, 27 So. 815. the community of acquets and gains is dissolved by the death of the wife, the husband is responsible for the debts of the comm......