Succession of Kemp v. Robertson

• Decision Date: 30 June 1975
• Docket Number: No. 10265,10265
• Citation: 316 So.2d 919
• Parties: SUCCESSION of Bolivar E. KEMP, Jr. (Batson Lumber Co., Inc., and Reimers- Schneider Co., Inc., Substituted Plaintiffs and Appellees), v. Helen Edwards ROBERTSON (Guy Wells, Executor of Succession of Helen Edwards Robertson, Substituted Defendant and Appellant).
• Court: Court of Appeal of Louisiana — District of US

Page 919

316 So.2d 919

SUCCESSION of Bolivar E. KEMP, Jr. (Batson Lumber Co., Inc. and Reimers- Schneider Co., Inc., Substituted Plaintiffs and Appellees), v. Helen Edwards ROBERTSON (Guy Wells, Executor of Succession of Helen Edwards Robertson, Substituted Defendant and Appellant).

No. 10265.

Court of Appeal of Louisiana, First Circuit.

June 30, 1975.

Rehearing Denied Aug. 26, 1975.

Writ Refused Oct. 22, 1975.

J. Harrison Henderson, III, New Orleans, and Wm. McM. King, Covington, for defendant and appellant.

Henry A. Mentz, Jr., Hammond, Allen B. Pierson, Jr., Ponchatoula, for plaintiffs and appellees.

Before LANDRY, BLANCHE and YELVERTON, JJ.

LANDRY, Judge.

Defendant Guy Wells (Wells), Executor of the Estate of his aunt, Helen Edwards Robertson (Mae Edwards) appeals from judgment recognizing plaintiffs Batson Lumber Co., Inc., (Batson) and Reimers-Schneider Co., Inc. (R-S) as owners of a disputed 298.70 acre tract of land known as the Bedico Tract, situated in Headright 45, T--7--S, R--9--E, Tangipahoa Parish. The trial court held that Appellant failed to establish title to subject property by 30 years adverse possession upon finding that the possession relied upon was not exclusive possession but was precarious or mixed possession. We affirm.

This litigation originated as a possessory action brought by Menette Wilson Kemp, Widow of Bolivar E. Kemp, Jr., deceased, against Mae Edwards, on January 4, 1967. Mrs. Kemp alleged that her deceased husband acquired possession of subject lands through an unbroken chain of title originating from a Succession Sale to Bolivar E. Kemp, Sr., on November 18, 1905. Plaintiff also alleged that on October 8, and October 17, 1966, Mae Edwards disturbed plaintiff's possession by claiming ownership of the land and demanding that Bolivar E. Kemp, Jr., quit claim the land to defendant Mae Edwards.

Defendant answered denying plaintiff's possession, and filed a reconventional demand in which defendant asserted ownership of the property by virtue of thirty years adverse possession commencing in 1934. Defendant alternatively asserted a claim for caretaker's services for 33 years at $200.00 per month, or the sum of.$79,200.00 . Mae Edwards died before trial. Wells, nephew and sole legatee under the will of Mae Edwards, was substituted as defendant herein in said decedent's stead.

Subsequent to the filing of defendant's answer and reconventional demand, Batson and R--S joined in these proceedings as plaintiffs. As parties, Batson and R-S claim ownership of the land by virtue of conveyances dated June 16, 1972, from Olivette Garrison and Eloise Heidelberg who, in turn, acquired through the Kemps.

On the date of trial Wells moved to amend the original answer to allege adverse possession of Mae Edwards commencing in 1920 instead of 1934, as initially asserted. Upon plaintiffs objecting to said proposed amendment, the trial court offered to grant plaintiffs a continuance to meet this important new allegation. Plaintiffs elected to decline the continuance and proceed to trial.

The record discloses that Bolivar E. Kemp, Jr., and Mae Edwards were related. However the precise nature of the relationship is not made clear by the evidence. Bolivar E. Kemp, Jr., acquired a 1/4 interest in subject lands from the Succession of his father, Bolivar E. Kemp, Sr., on June 25, 1934; a 1/4 interest from the Estate of his mother Lallie Conner Kemp, on April 28, 1944, and the remaining 1/2 interest from his sister, Eleanor Kemp Ellis, on December 22, 1962. It is acknowledged that Kemp's title and also that of Batson and R-S is by unbroken chain emanating from the Successions of Robert T. Edwards and Emily N. Edwards, under date of September 2, 1905. In said Succession proceeding subject tract was sold at Sheriff's Sale pursuant to a duly issued court order to effect a partition of the land. Mae Edwards, as heir of said decedents, was cited in said Succession proceedings with process relating to said partition sale. No attack is herein made on the validity of said partition sale or upon any subsequent link in the chain of title of Batson and R-S.

It is likewise acknowledged that Mae Edwards has no recorded title whatsoever and that all claims asserted through her are predicated upon alleged adverse possession of thirty years. Also conceded is the fact that since acquisition in 1905, the Kemps and their assignees have paid the taxes due each year on the property in question.

The lower court held that Mae Edwards' reconventional demand asserting ownership of the land converted plaintiff's possessory action into a petitory action. The trial court also held that since defendant converted the suit into a petitory action, defendant bore the burden of establishing title. After considering and reviewing the numerous witnesses called by the contending parties, the lower court concluded that defendant failed to establish the type of possession required by LSA-R.C.C. arts. 3499 and 3500 to support a claim of thirty years acquisitive prescription of immovables.

Wells contends the trial court erred in: (1) failing to hold that the claim of ownership by Batson and R-S converted the suit into a petitory action thereby imposing upon said plaintiffs the burden of establishing title good against the world, namely, perfect title from sovereignty, and (2) failing to find that defendant stablished adverse possession as required by law. In this latter regard, it is urged that the trial court erred in holding that the possession exercised by Mae Edwards was 'precarious and mixed' rather than exclusive and adverse.

Relying upon Pure Oil Company v. Skinner, La., 294 So.2d 797, Wells contends that plaintiffs, having converted the suit into a petitory action, bear the burden of establishing perfect title against the world, not just a better title than defendant as possessor. The doctrine of Pure Oil Company, above, can be of no consolation to Appellant since it is Appellant who bears the primary burden of proof under the circumstances of this case.

LSA-C.C.P. Article 3657 pertinently provides as follows:

'When, except as provided in Article 3661(1)--(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.'

The foregoing codal authority plainly provides that by claiming ownership of subject property, Mae Edwrds, the initial defendant in the possessory action, converted the suit into a petitory action in which defendant became plaintiff. Said claim of ownership also amounted to judicial confession of plaintiff's possession and defendant's lack of possession. Having become plaintiff in the petitory action, the burden shifted to defendant Mae Edwards, and those claiming through her, to make out title against the defendant whose possession is conceded. LSA-C.C.P. Article 3653.

The acquisitive prescription of thirty years relied upon is provided for by LSA-R.C.C. Articles 3499 and 3500 which state:

'Article 3499. The ownership of immovables is prescribed for thirty years without any need of title or possession in good faith.'

'Article 3500. The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.'

The possession required by LSA-R.C.C. Article 3500 to support prescriptive title to immovables, must be continuous, open, public, peaceable, uninterrupted and adverse to the true owner. Gerrold v Barnhart, 128 La. 1099, 55 So. 688; Bedingfield v. Watson, La.App., 147 So.2d 458.

Our jurisprudence is established to the effect that possession asserted in support of a plea of thirty years acquisitive prescription must commence with actual corporeal possession coupled with intent to possess as owner. Sanders DeHart v. Continental Land & Fur Co., 205 La. 569, 17 So.2d 827.

The type of corporeal possession required to support a plea of thirty years prescription is determined in each case by the use to which the land is destined by nature. A.B.A. Exploration Gas & Oil Company, Inc. v. A. Wilbert's Sons Lumber and Shingle Company, La.App., 170 So.2d 752, and authorities therein cited.

A precarious possessor, namely, one who possesses with leave, or consent, or in the name of the true owner, cannot acquire real property by thirty years adverse prescription. LSA-R.C.C. Articles 3441, 3489, 3490, 3556(25) and 3510; Arnold v. Sun Oil Co., et al., 218 La. 50, 48 So.2d 369.

Subject tract was the Edwards family homestead at the time of its sale to Kemp, Sr., in 1905. Mae Edwards was born on the land in about 1882, and lived there with other members of her family when the place was acquired by the elder Kemp. The land consists of 300 acres of swamp and rolling timber land, the principal timber being pine. Bedico Creek runs through the tract. A small area, about three acres, was dedicated to use as an Edwards family cemetery. The old Edwards home, a rather large frame house, was situated near Bedico Creek. It appears that for a time following the sale to Kemp, Mae Edwards and certain members of her family remained on the property. On an undisclosed date following 1905, Mae Edwards left the land and remained away until 1920. Upon her return she occupied the Old Edwards home until it became uninhabitable. In about the 1940s she demolished the home and used the salvageable lumber to build a smaller house or cabin on the opposite side of Bedico Creek. She lived in the cabin until 1968 or 1969, when she was taken to a nursing home in which she died during July, 1972.

Horace Edwards, Mae's brother, also lived on the land although...