Metrailer v. Byrd
| Decision Date | 31 May 1960 |
| Docket Number | No. 5054,5054 |
| Citation | 121 So.2d 323 |
| Parties | Charles METRAILER, Sr., and Ray E. Ingram, Plaintiffs-Appellees, v. Millard E. BYRD, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Cadwallader & Perkins, Baton Rouge, for appellant.
Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for appellee.
Before TATE, PUTNAM, and MILLER, Judges.
This is a petitory action in which Charles Metrailer, Sr. and Ray E. Ingram are suing to be recognized as the owners and, as such, entitled to the possession of certain real property purchased from the defendant, Millard E. Byrd, and located in the City of Baton Rouge. Plaintiffs allege that subsequent to their purchase of November 22, 1957, the defendant took possession of the north 6.85 feet of the property which he had conveyed to the plaintiffs and now refuses to deliver possession to them. Defendant admits the sale of the property on the date alleged according to the following description 'One (1) certain lot or parcel of ground, together with all improvements located thereon, and all rights, ways, privileges, servitudes and advantages thereto attached or in anywise appertaining, situated in the Parish of East Baton Rouge, State of Louisiana, in that subdivision known as Bernard Terrace, and designated on a map made by Sam G. Dupree, Civil Engineer, dated October 28, 1957, attached hereto and made a part hereof, marked 'Ne Varietur' by me, Notary, for identification herewith, showing 'Resubdivision of Lots 16, 17, and 18, Square 1, Bernard Terrace Subdivision', and approved by the Planning Commission on November 4, 1957, as Lot 'B', said subdivision, said lot fronting fifty-four and 5/10 feet (54.5) on the North side of Government Street, with such other measurements and dimensions as shown on said map; said lot being subject to a seven and one-half foot servitude off the north or rear side thereof as shown on said plat; being a portion of the same property acquired by the vendors by Act of Record in Book 939, Page 162 of the Conveyance Records of this Parish and State.'
The plat which was paraphrased 'Ne Verietur' to agree with the sale from defendant to the plaintiffs is essential to the consideration and decision of this case and is therefore reproduced in part herewith.
It is defendant's contention that this map contains an error in giving the depth of the property conveyed to the plaintiffs as 150 feet when it should have been given a depth of 143.15 feet. The lower court for oral reasons assigned granted judgment in favor of the plaintiffs, as prayed for, and defendant has appealed.
The defendant owned portions of Lots 16, 17, and 18 of Square 1, Bernard Terrace, in the City of Baton Rouge, forming a tract of land measuring 109 feet front on the north side of Government Street by a depth of in excess of 150 feet. The west side of said tract fronts on Lovers Lane. Defendant listed the south 150 feet of this property with a Baton Rouge real estate broker for sale at a price of $300 per front foot facing Government Street. The broker found a sale for a portion of this 109 150 lot at a price in excess of the price set by the defendant with a prospective purchaser named Mr. Hutchison. Mr. Hutchison wanted to purchase a tract 54.5 feet fronting on Government Street and 120 feet fronting on Lovers Lane. (See Lot 'A' on the plat reproduced hereinabove.) The defendant refused to accept this sale because he wanted to dispose of the entire 150 109 lot. The real estate broker then set about to find a purchaser for the 'L' shaped remainder of the 150 109 lot. (See Lot 'B' of the plat reproduced hereinabove.) The plaintiffs were interested in making the purchase and on October 16, 1957, an agreement to buy and sell was signed by the plaintiffs and defendant on a form provided by the real estate broker describing the land to be sold to the plaintiffs as 'lot 54 1/2 150 109 on back line by 30 ft on Lovers Lane--Inermost lot'. Because of a problem in connection with financing the purchase of this property, two other agreements to buy and sell were executed, but in each case the description of the property involved was identical to the above description. In order to convey title to Lots 'A' and 'B', the defendant employed a Civil Engineer, Mr. Dupree, to prepare a resubdivision of his property. Mr. Dupree prepared the plat which is reproduced hereinabove and which was attached to the sale from the defendant to the plaintiffs.
This plat has an error in it in that it shows that Lot 'C' which is also a part of the resubdivision of Lots 16, 17, and 18 of Square 1, Bernard Terrace, extends south 10 feet into lots which have previously been described as Lots 17 and 18 of Square 1. This plat also shows that the lot purchased by the plaintiffs, hereinafter referred to as Lot 'B', has a depth from Government Street to the back of the lot of 150 feet. This would indicate that Lots 17 and 18 have a total depth of 160 feet, whereas in truth and fact the two lots, Lot 17 and Lot 18, have a depth of only 153.15 feet. This dispute arose because defendant places his south line of Lot 'C' 10 feet south of the south line of the previous Lot 16 of Square 1, Bernard Terrace, whereas the plaintiffs place the same line 150 feet north of Government Street. Subsequent to the sale defendant erected a fence on and along the line for which he now contends with the result that the plaintiffs have a depth of only 143.15 feet from Government Street rather than a depth of 150 feet and a frontage of only 23.15 feet on Lovers Lane rather than the 30 feet as shown on the plat.
Under an oral agreement made at the time of the sale the defendant reserved the right to remove certain improvements from Lot 'B' for a period of 60 to 90 days. At the end of this period the plaintiffs were staking out a site for their proposed building and discovered that the defendant had taken possession of the north 6.85 feet of their Lot 'B'. Efforts were made to settle the matter but when it became apparent that the defendant was adamant in...
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