Smith v. Chappell

• Court: Louisiana Supreme Court
• Writing for the Court: ODOM, Justice.
• Citation: Smith v. Chappell, 177 La. 311, 148 So. 242 (La. 1933)
• Decision Date: 01 May 1933
• Docket Number: 31478
• Parties: SMITH v. CHAPPELL

148 So. 242

177 La. 311

SMITH v. CHAPPELL

No. 31478

Supreme Court of Louisiana

May 1, 1933

Appeal from Fourth Judicial District Court, Parish of Ouachita Percy Sandel, Judge.

Action by E. O. Smith against John T. Chappell. From a judgment in favor of the plaintiff, the defendant appeals.

Reversed, and plaintiff's demands rejected, and the suit dismissed.

McHenry Montgomery, Lamkin & Lamkin, of Monroe, for appellant.

Sholars & Gunby and Hudson, Potts & Bernstein, all of Monroe, for appellee.

OPINION

ODOM, Justice.

This is a petitory action in which is involved the ownership of a lot of ground in the city of West Monroe, described as follows:

"That part of Lot 'A' of Austin & Eby's First Northern Addition to the town of West Monroe, Louisiana, as per plat of same made by W. E. Atkinson, C. E., on file and of record in the office of the Clerk and Recorded in and for the Parish of Ouachita, Louisiana; beginning on the east line of Trenton Street three hundred and sixty-four feet from the southeast intersection of Trenton and Vernon Streets; thence in a southerly direction along the east line of Trenton Street thirty-two (32) feet; thence back between parallel lines, which lines are parallel to the south side of Vernon Street extended to the Ouachita River."

Plaintiff alleges that he, Fred Mitchell, Tom Simonton, and C. E. Granberry, jointly, acquired this property from Mrs. Stella C. Eby and Mrs. Martha C. Austin on February 14, 1920, as per deed recorded in the conveyance records of Ouachita parish, and that he subsequently acquired the interest of his co-owners as per deeds duly recorded.

Defendant in answer denied that plaintiff is the owner of the property, and especially alleged that the deed from Mrs. Eby and Mrs. Austin to plaintiff and the others upon which plaintiff now relies, did not convey to them the particular lot of ground in controversy. He set up title in himself alleging that he purchased the property on May 26, 1924, from the West Side Lumber Company, as per recorded deed, which company acquired from Mrs. Eby and Mrs. Austin on February 5, 1921; Mrs. Eby and Mrs. Austin being the authors of plaintiff's title. He alleged that he was in possession of the property and had been since he acquired it in 1924, and had, to the knowledge of plaintiff, erected costly buildings thereon without protest from plaintiff, who, it is alleged, is now estopped to assert title thereto. There was judgment in the district court in favor of plaintiff, decreeing him to be the owner of the property, from which judgment defendant appealed.

1. A petitory action is one brought by an alleged owner of real estate who is out of possession against another having possession to determine ownership. The settled jurisprudence of this state is that a plaintiff in a petitory action, in order to recover, must rely on the strength of his own title and not on the weakness of that of his adversary. In order to maintain his suit, he carries the burden of proving title in himself. The title of the defendant is not an issue until plaintiff has proved an apparently valid title in himself. Capra v. Viola, 172La. 731, 135 So. 41; Mecom v. Graves, 148 La. 369, 374, 86 So. 917; Waddill v. Walton, 42 La.Ann. 763, 7 So. 737; Doiron v. Lock, Moore & Co., 165 La. 57, 115 So. 366; New Orleans v. Union Lumber Co., 145 La. 476, 82 So. 588; Glover v. Haley, 118 La. 649, 43 So. 265; Lowenberg, Marks & Co. v. H. & C. Newman, 142 La. 959, 77 So. 891; Nilson v. Brinkerhoff, 146 La. 697, 83 So. 902; Bruton v. Braselton, 157 La. 63, 101 So. 873; Land v. Brockett, 162 La. 519, 110 So. 740; Pringle v. Price, 170 La. 343, 127 So. 745; Wilfert v. Duson, 131 La. 21, 58 So. 1019; Hemken v. Brittain, 12 Rob. 46.

From this rule it follows necessarily that, when a plaintiff claims title to a certain described lot of ground, he must show that his title covers the identical lot in controversy. Hemkin v. Brittain, supra, and Murray v. Boissier, 10 Mart. (O. S.) 293; Frere v. Derouen, 104 La. 777, 29 So. 330; Bayard v. Baldwin Lbr. Co., 157 La. 994, 103 So. 290; Ducre v. Milner, 165 La. 433, 434, 115 So. 646.

Plaintiff owns whatever property was conveyed by Mrs. Eby and Mrs. Austin to him, Mitchell, Simonton, and Granberry on February 14, 1920; he having subsequently acquired the interest therein of his co-owners under deeds containing descriptions identical with that in the original deed. Plaintiff's case therefore hinges on the question whether the Eby and Austin deed conveyed the particular lot of ground in controversy. If it did not, then plaintiff has no title and no case. The title of defendant is not an issue in the case unless plaintiff can prove an apparently valid title in himself.

Plaintiff, in order to establish title in himself, introduced in evidence the deed from Mrs. Eby and Mrs. Austin to himself, Mitchell, Simonton, and Granberry and deeds from his former co-owners to himself. The description in the Eby and Austin deed is as follows:

"That part of lot 'A' of Austin and Eby's first northern addition to the town of West Monroe, La., as per plat of same made by W. E. Atkinson, C. E., on file and recorded in the office of the clerk and recorder of Ouachita Parish, La., beginning at the southeast intersection of Trenton Street and Vernon Street, thence in a southerly direction along the east side of Trenton Street, 396 feet; thence back between parallel lines, one of which is the south line of Vernon Street extended to the Ouachita River; being all the equity, riparian rights, or other title to said lot or parcel of land as held by these vendors in that portion directly opposite lots 10, 11, 12 and 13 of block 8, same addition, now owned by these vendees."

The Atkinson plat referred to in the deed shows that Trenton street runs approximately north and south near the bank of the river and that Vernon street intersects Trenton at near right angles. Lot A of the subdivision as shown by the plat is all the ground between the east line of Trenton street and the river, bounded as follows: By a line beginning at the southeast intersection of Trenton and Vernon streets and running south along the eastern edge of Trenton street 406.23 feet; thence east from the east line of Trenton street to the river; thence in a northerly direction along the meanderings of the river bank to a line formed by extending the south line of Vernon street across Trenton street to the river; thence in a westerly direction to Trenton street.

Block 8 of this subdivision, as shown by the plat, which block and lots 10, 11, 12, and 13 thereof, are referred to in the deed, is on the west side of Trenton street opposite lot A. Block 8 is bounded on the north by the south line of Vernon street, on the east by the west line of Trenton street, and on the south by Stella street. It has a frontage on Trenton street of 454.14 feet and this frontage is subdivided into five lots numbered from south toward the north, 9, 10, 11, 12, and 13; each of the lots having a width of 91 feet, except lot 9, the southern lot, which has a width of 90.14 feet. Lot 13 of block 8 is bounded on the north by the south line of Vernon street, and the north boundary line of block A is an imaginary line formed by projecting the north boundary line of lot 13 across Trenton street to the river, so that the northwest corner of lot A, which is the starting point of the description in the deed from Mrs. Eby and Mrs. Austin to plaintiff and the others named in the deed, is on the opposite side of Trenton street and east of the northeast corner of lot 13.

One of the calls in the Eby and Austin deed is for a distance of 396 feet along the eastern edge of Trenton street beginning at a point at the southeast intersection of Trenton and Vernon streets, which, as we have said, is the northwest corner of lot A. It is contended by plaintiff that he and the other vendees in the Eby and Austin deed, purchased all of lot A fronting on Trenton street from the northern boundary thereof south to a distance of 396 feet. If this be true, the plaintiff unquestionably owns the lot in controversy, which is included within this description. A short description of the lot involved is "the south 32 feet of that part of lot 'A' which plaintiff claims that he and others purchased from Eby and Austin." This is the lot of ground which defendant claims to own and on which he has erected a garage and filling station at an expense of something like $ 8,000.

If the description in the Eby and Austin deed had stopped after stating the distance along Trenton street, this controversy could not have arisen because plaintiff's deed is prior in date to that under which defendant claims; the question of prescription not being involved. But that deed goes further in describing the property, and recites:

"Being all the equity, riparian rights, or title to said lot or parcel of land as held by these vendors in that portion directly opposite lots 10, 11, 12 and 13 of block #8, same addition, now owned by these vendees."

At the time this sale was made to Smith, the plaintiff, and to Mitchell, Simonton, and Granberry, Smith owned lot 10, Simonton lot 11, Mitchell lot 12, and Granberry lot 13 of block 8. Each had a residence on the lot owned by him in which he was residing. This fact is material as we shall presently show.

The question then arises whether the subsequent clause in the description prevails over that part which calls for a specified distance. The two calls in the deed are irreconcilable. They cannot both stand. One or the other must fall. Lots 10, 11, 12, and 13 of block 8 have a combined frontage of exactly 364 feet on Trenton street which is 32 feet less than the distance called for in the deed. The subsequent clause of...