Opelousas-St. Landry Bank & Trust Co. v. Bruner

• Decision Date: 30 December 1929
• Docket Number: 547
• Citation: 13 La.App. 337,125 So. 507
• Parties: OPELOUSAS-ST. LANDRY BANK & TRUST CO. ET AL. v. BRUNER
• Court: Court of Appeal of Louisiana — District of US

125 So. 507

13 La.App. 337

OPELOUSAS-ST. LANDRY BANK & TRUST CO. ET AL. v. BRUNER

No. 547

Court of Appeals of Louisiana, First Circuit

December 30, 1929

Appeal from District Court, Parish of Acadia. Hon. W. W. Bailey Judge.

Action by Opelousas-St. Landry Bank & Trust Company and Steam Scheely Manufacturing Company against Walter S. Bruner.

There was judgment for defendant, and plaintiffs appealed.

Judgment affirmed.

W. J Carmouche, of Crowley, attorney for plaintiffs, appellants.

Medlenka Bruner & Chambers and Pugh & Buatt, of Crowley, attorneys for defendant, appellee.

OPINION

MOUTON, J.

The Opelousas-St. Landry Bank & Trust Company and the Steam Scheely Manufacturing Company, judgment creditors of Elmo L. Bruner on a joint demand, filed a petition, alleging that on October 26, 1903, Elmo L. Bruner, then a resident of Acadia, had in partnership with his brother, Hal Bruner, bought an 85-acre tract of land situated in the parish of Acadia; that Elmo Bruner had, under the deed from Henry L. Garland, the vendor, now deceased, acquired one-half interest in the land, and his brother, Hal Bruner, the other half; that Elmo Bruner had remained and was the owner of record when the judgments of petitioners were duly recorded, and has never transferred his title in the land to any one, and is still the owner of record.

Petitioners further aver that Hal Bruner, the owner of only one-half interest in the land, as aforesaid, by act of sale on May 10, 1924, sold and transferred the 85 acres, or the whole tract, to Walter S. Bruner, defendant, of Acadia parish; that he could not transfer more than his half interest in the land to the defendant; and that Elmo L. Bruner is still the owner of a one-half interest therein. They pray for judgment ordering that Walter S. Bruner, vendee of Hal Bruner, pay their judgments, with interest and costs, or surrender a one-half interest in the property, and, in default thereof, their judgments be made executory, and that an undivided one-half interest be seized and sold to satisfy the claim of the petitioners.

Exceptions of misjoinder, of no cause of action, were filed by defendant, and, we find, were properly overruled.

In answer to article 4 of plaintiffs' petition, defendant, Walter S. Bruner, denies that Elmo Bruner ever acquired any interest in the land, and, after answering the other articles of the petition, avers in substance as follows, and which presents the defense to the suit:

That in the act of sale from Henry L. Garland it is set forth that the transfer was made to Hal Bruner and Elmo Bruner, said Hal Bruner acting for himself and his brother; that Hal Bruner acted on his own initiative, without consultation with Elmo, without his authority or consent for the purchase, and without authorization in writing from Elmo Bruner; that he signed the deed "Hal Bruner for Self and Brother"; also executed, without the consent or authority of Elmo, ten promissory notes, each for $ 200 for the purchase price of the property, paying annually, and signed the notes "Hal Bruner for Self and Brother," and, in the absence of his brother, Elmo, who when subsequently informed, repudiated the transaction, refusing to confirm or ratify the acts of said Hal Bruner; that thereupon Hal Bruner treated the property as his own, and from the year 1906 assessed it in his own name, paid all taxes from the time of the purchase, collected all the revenues produced by it, and paid all the notes representing the purchase price; that Elmo Bruner at no time made any claim against the property, attempted to exercise or exercised any rights to or over the property, or ever held himself as owner of any part thereof, but always recognized the full title in Hal Bruner; that the property never belonged to Elmo Bruner; that its full ownership vested in Hal Bruner, and therefore it is now the property of defendant, Walter S. Bruner.

Hal Bruner, vendor of defendant, was called in warranty by the latter, and adopted the defenses set up by respondent. Judgment was rendered, rejecting the demand of the plaintiffs, from which they appeal.

When the law requires a contract to be in writing (which is required for the purchase of real estate), the power to execute such a contract must also be in writing. Miller vs. New Orleans Canal & Banking Co., 8 Rob. 236; McKenzie vs. Bacon, 40 La.Ann. 157, 4 So. 65. The power to buy or draw promissory notes must also be express and special. C. C. art. 2997.

In the deed from Garland, executed October 26, 1903, it is declared that the sale is made to Hal Bruner and Elmo Bruner, and it is signed by Hal Bruner for self and brother. The 10 notes for the purchase price are signed in the same manner. There is no expression whatsoever in the deed referring to any procuration, mandate, or power of attorney from Elmo Bruner, authorizing Hal Bruner to buy the property for cash or otherwise, or sign notes or other obligations for Elmo. The fact is there is nothing in the record to show such authority from Elmo Bruner, either in writing or by implication. As a matter of fact, Elmo was absent, being in Acadia or elsewhere when the sale was executed in Opelousas between Garland and Hal Bruner. As Elmo Bruner was not present, and had conferred no power on his brother, Hal, to buy the land or an undivided interest therein, it is clear that he acquired no ownership in the property by virtue of the sale, as "those only are parties to a contract, who have given their consent to it, either expressly or by implication." C. C. art. 1780.

It will be observed that Hal Bruner was a self-constituted agent, and could not go beyond the limit of a procuration which he did not have, and could not possibly exceed the powers of any mandate or agency to which article 3010 of the Civil Code refers. It is doubtful if Elmo Bruner was called upon to ratify or confirm the acts of his brother, Hal, who was not in any sense his agent or representative.

We will, however, discuss the issues under article 3010, C. C which comes under the heading of mandate, and...