Prestridge v. Humble Oil & Refining Co.

• Citation: 131 So.2d 810
• Decision Date: 30 January 1961
• Docket Number: No. 37,37
• Court: Court of Appeal of Louisiana (US)
• Parties: Robert B. PRESTRIDGE, Jr., et al., Plaintiffs-Appellants, v. HUMBLE OIL & REFINING COMPANY et al., Defendants-Appellees.

Page 810

131 So.2d 810

Robert B. PRESTRIDGE, Jr., et al., Plaintiffs-Appellants, v. HUMBLE OIL & REFINING COMPANY et al., Defendants-Appellees.

No. 37.

Court of Appeal of Louisiana, Third Circuit.

Jan. 30, 1961.

On Rehearing May 9, 1961.

Parker & Parker, by John E. Parker, New Orleans, for plaintiffs-appellants.

Liskow & Lewis, by Cullen R. Liskow, Lake Charles, for defendants-appellees.

Peter R. Monrose, Jr., New Orleans, for plaintiff-appellee.

Before TATE, FRUGE and HOOD, JJ.

FRUGE , Judge.

From a judgment rendered in favor of defendants and against plaintiffs, disallowing plaintiffs' claims and dismissing plaintiffs' suit at their cost plaintiffs bring this appeal.

There is no serious dispute as to the facts involved--however, we are concerned primarily with questions of law. This suit arose as a result of certain transactions which occurred within the past three decades.

Plaintiffs, Robert B. Prestridge, Jr., Mrs. Allie Prestridge, wife of William E. Inbau, and Mrs. Marie Bess Prestridge, wife of Richard A. Schleif, filed suit against W. H. Cocke and R. H. Goodrich to be declared owners of an undivided 3/16ths interest in certain lands. All defendants recognize that the said plaintiffs presently own an undivided 3/32nds interest in the said lands or 1/2 of 3/16ths. Plaintiffs cumulated with this action a demand for the partial cancellation a certain mineral leases held by W. H. Cocke and R. H. Goodrich and Humble Oil & Refining Company and for cancellation of other documents affecting their alleged ownership.

George Johnston and Albert H. Thompson purchased certain lands in indivision and equal proportions. Plaintiffs are the grandchildren of Albert Thompson and Alberta Thompson. Plaintiffs inherited by representation through their predeceased mother, from their grandmother and grandfather Thompson in 1927 and 1930 respectively, a 1/16th each for a total of 3/16ths; a major brother of plaintiffs, Albert Prestridge, inherited a 1/16th; their uncle, Ward Thompson, inherited 1/4th; and the heirs of George Johnston and/or others own the remaining one-half of the property originally owned by George Johnston and Albert Thompson in indivision. In 1933, Ward Thompson, as co-owner in indivision, sued his other co-owners for a partition by licitation. Pursuant to a judgment ordering sale of the land the sheriff sold at public auction all of the property owned in indivision to one W. T. Burton. In January, 1940, H. E. Nutter, believing that the said sheriff's sale was a nullity and that it could be annulled, entered an agreement with the heirs of George Johnston, Albert Prestridge, and Robert B. Prestridge, Sr. as natural tutor of plaintiffs, whereby Nutter agreed to have the sheriff's sale to W. T. Burton set aside in consideration of an undivided one-half of the interests of the said persons in that property. (In February, 1940 Nutter acquired for $100 cash the interest of Ward Thompson.) Pursuant to the agreement Nutter employed counsel, suit was brought against Burton, and the sale was declared a nullity. See Johnston v. Burton, 202 La. 152, 11 So.2d 513. Defendants, Cocke and Goodrich, acquired the interest in question from Nutter. Plaintiffs allege that the instrument by virtue of which Nutter claimed to have acquired said property is an absolute nullity. Plaintiffs claim that their tutor had no authority to convey 1/2 of their interest (their interest was originally 3/16) in the property in consideration of the services which were allegedly rendered by Nutter and to be rendered by him and also for the costs and expenses which he agreed to pay in connection with the suit which was instituted resulting in the rescission of the sale to Burton. Defendants, Cocke and Goodrich, claim to have acquired the property (3/32nds) by mesne conveyance from Nutter, who had acquired it by virtue of an instrument dated January 27, 1940, from Robert Prestridge, Sr., acting as natural tutor of plaintiffs. Alternatively, defendants plead ratification, estoppel and the prescription of five years under LSA-C.C. art. 3542 and that of ten years under LSA-C.C. arts. 2221 and 3544. To the defenses of defendants plaintiffs filed special pleas of res judicata and prescription.

Robert Prestridge, Sr. applied for (with proper formalities) and was granted authority, as natural tutor, for and on behalf of the minors, Allie Prestridge, Robert Prestridge, Jr., and Marie Bess Prestridge, by order of court:

'to enter into a contract with H. E. Nutter'

authorizing him to proceed by necessary suit or suits, at his own expense and through attorneys employed by him, to attempt to set aside the nullify that sale to Burton; and further:

'that the Robert B. Prestridge, Sr., as Natural Tutor to said minors, be authorized to transfer and convey unto the said H. E. Nutter, in consideration of the services rendered by him and the expenses to be paid to attorneys and otherwise, an undivided one-half (1/2) interest in all of the rights, title and interests of said minors in lands in St. Martin and Iberia Parishes, Louisiana * * * including a one-half (1/2) interest in all rights, titles and interest recovered for and on behalf of said minors in any suit or suits brought in connection therewith.'

Pursuant to the above order of court Robert Prestridge, Sr., individually and as natural tutor to the said minors, and Albert E. Prestridge (the major brother of plaintiffs), on January 27, 1940, joined in an agreement with H. E. Nutter, the pertinent parts of which read as follows:

'An Agreement by and between Robert B. Prestridge, Sr., acting herein as Natural Tutor and for and on behalf of the minors, Allie Elizabeth Prestridge, Robert B. Prestridge, Jr., and Marie Bess Prestridge, acting under an order of (court) and Albert Emerson Prestridge, herein all referred to as 'Grantors', and H. E. Nutter, * * * herein referred to as 'Grantee'.

'Grantors, by this instrument, * * * appoint the Grantee their agent and attorney in fact * * * to enter such suit or suits as may be necessary to set aside and nullify the Sheriff's deed * * * and to recover title to said lands for the Grantors according to their interests therein * * *.

'The Grantee hereby agrees to employ necessary attorneys to institute suit * * * in an attempt to set aside and nullify said deed, all at his expense, and that he shall not have the right to collect from the Grantors any portion of said expenses, nor shall be receive any consideration for his services and for the payment of such expenses, except that hereinafter set forth, and to hold grantor harmless for any costs of court.

'In consideration of the services rendered and to be rendered by the Grantee and the expenses advanced by him in connection with any suit or suits necessary to set aside said deed, the Grantors, By this instrument, bargain, Sell, transfer and convey unto H. E. Nutter, Grantee * * * an undivided one-half (1/2) interest in and to all of the rights, title and interest of Grantors in and to the lands * * *.

'To Have And To Hold the said interest in the lands referred to unto the said H. E. Nutter * * * forever; * * * without any warranty of title but being only of an undivided one-half (1/2) interest in and to the rights of the said Grantors in and to the said lands, including an undivided one-half (1/2) interest in such interest or portion thereof that might be recovered in the event the Sheriff's deed herein mentioned should be set aside * * *.' (emphasis added.)

Plaintiff maintains that there is no authority for such a sale and cites LSA-C.C. arts. 341--342 and Act 209 of 1932 (presently LSA-R.S. 9:603, 9:671 to 9:675, 9:691 to 9:693) as authority for that proposition.

Although LSA-C.C. 341 and 342 require that the sale of a minor's interest be at public sale, our appreciation of Act 209 of 1932 is that one of its primary purposes was to provide for the sale of the interest of a minor at Private sale, that is, that it removed restrictions to such a sale. The pertinent parts of the Act read as follows:

'Section 1. * * * whenever it shall appear to the tutor of a minor * * * who shall own property, either in its entirety or in indivision, that it is to the advantage of the minor * * * to sell the interest of the minor * * * therein at private sale, the tutor * * * may file a petition in the District Court * * * setting forth the nature of the property, the reasons which make it to the advantage of the minor * * * to sell such interest at private sale, and the price, terms and conditions of the proposed sale. * * *

'Section 8. That any property sold under this Act may be purchased by any co-owner or co-owners thereof.'

As above mentioned all formalities were complied with by the tutor.

Plaintiffs cite cases holding that a Private sale of a minor's interest, even when authorized by Court, is absolutely void, and that later statutes permitted such a sale only to effect a partition. See Fletcher v. Cavalier, 4 La. 267; Blair v. Dwyer, 110 La. 332, 34 So. 464; Crain v. Tremont Lumber Co., 134 La. 276, 63 So. 901; Touchy v. Gulf Land Co., 120 La. 545, 45 So. 434. However, these cases were decided prior to Act 209 of 1932 which specifically provides for the private sale of a minor's interest. Also relied on by plaintiffs are the cases of Keel v. Sutherlin, 130 La. 182, 57 So. 794; and Wells v. Files, 136 La. 125, 66 So. 749. In the Keel case, supra, the mother of the minor had sold land with the right of redemption. Later the land increased in value due to oil development in the area. The minor's grandfather, the tutor, being destitute as were the minors, agreed with certain attorneys that if they redeemed the land they would be paid a one-third interest in the land. The land was redeemed and after a family meeting etc. the tutor was authorized to deed the land to the attorneys (that is, one-third of the land) which was done. It was held that the deed to the attorneys was null as not being authorized in law. T...