Vidrine v. Deshotels

• Decision Date: 07 January 1935
• Docket Number: 33123
• Citation: 181 La. 50,158 So. 618
• Court: Louisiana Supreme Court
• Parties: VIDRINE et al. v. DESHOTELS et al

158 So. 618

181 La. 50

VIDRINE et al. v. DESHOTELS et al

No. 33123

Supreme Court of Louisiana

January 7, 1935

Appeal from Thirteenth Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge.

Suit by Mrs. Sophie Vidrine and others against Ortere Deshotels and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Guillory & Guillory, of Ville Platte, for appellants.

Dubuisson & Dubuisson, of Opelousas, for appellee Opelousas-St. Landry Securities Co., Inc., warrantor.

OPINION

ODOM, Justice.

Arsene Fruge purchased the S. 1/2 of the S. E. 1/4 of section 39 township 4 south, range 1 west, on December 12, 1925. He died on May 14, 1926. His wife and six minor children, issue of the marriage, survived him. They brought the present suit which is a petitory action, against the defendants on May 7 1934, alleging that they are the owners of said property and that defendants are in possession thereof without any right or title and that they refuse to deliver possession and are unlawfully appropriating the revenues of said property. They prayed for judgment recognizing them as owners of the property and as such entitled to possession.

Defendants in answer denied that plaintiffs are the owners of the property and set up title in themselves. From a judgment rejecting plaintiffs' demands, they appealed.

Mrs. Vidrine Fruge, one of the plaintiffs, is the widow of Arsene Fruge and claims an undivided one-half interest in the property. The other plaintiffs are the sole heirs of their father, Arsene Fruge. No sale of this land has ever been made by these plaintiffs individually; and if their title has not been divested by succession sale, they own it now.

The defendants allege that the property was sold by the succession of Arsene Fruge on December 11, 1926, to the Opelousas-St. Landry Securities Company, and by that company sold to O. L. Fuselier, reacquired by that company from Fuselier by foreclosure, and finally sold to them by the said company under full warranty of title on December 14, 1929, and that they have had undisturbed possession thereof ever since.

It is conceded that the succession of Arsene Fruge was insolvent and that one of his sons, Adio Fruge, was appointed and qualified as administrator thereof. But no record of the said appointment and no record of any proceeding which he took in connection with the succession or of the sale of the property thereof can be found at present. Both the clerk of court and the attorney who represented the administrator testified that they had searched in vain for the record in said succession.

But defendants offered and filed in evidence a proces verbal of sale, not only of the property here involved, but of all other property which belonged to the succession, which proces verbal is signed by Adio Fruge, administrator. This proces verbal of the sale was not made out and signed until March 19, 1934, more than seven years after the sale is alleged to have taken place. Whether there was a proces verbal made out and signed by the administrator immediately following the date on which the sale is alleged to have taken place is not shown by the record. But if there was, there is at present no record of it, and when this fact was discovered by attorneys employed by the defendants to abstract and pass upon the title of the land, the proces verbal above referred to was prepared, presented to the administrator, and signed by him in the presence of two witnesses. Adio Fruge, who was the administrator, and who is one of the plaintiffs, admitted while on the stand as a witness that he signed the said document after the same was read to him in full by Mr. Dore, the attorney who prepared it. But he says that the document, as he understood it, was to evidence a conveyance of all the property belonging to the succession except that which is involved in this suit. He and the other plaintiffs do not deny that there was in fact a public sale of the property belonging to the succession, conducted by the administrator. But their contention is that the particular property here involved was never sold.

That plaintiffs are in error on this particular point is proved beyond question. That it was sold at public auction by the administrator is made clear by the testimony of three witnesses who were present at the sale and by circumstances which are convincing. Mr. J. Hugo Dore, who was attorney for the administrator, testified that he personally auctioned the property in the presence of the administrator, that it was sold to the highest bidder and purchased by Mr. Leon Dupre for the Opelousas-St. Landry Securities Company. Mr. Dupre testified that he was present at the sale of the property and that he purchased it for the said securities company when it was offered by Mr. Dore as auctioneer. Mr. Lucius F. Castile testified that he was present at the sale, heard Mr. Dore auction the property at the residence of the late Arsene Fruge in the town of Mamou, in the parish of Evangeline, where the property is situated, and that Mr. Dupre purchased it for his company. Mr. O. L. Fuselier testified that, while he was not present at the sale, he met several persons coming from the house after the sale and that he knew there was a sale.

The circumstances confirming the testimony of these witnesses that the property was actually sold at public auction are these: On November 21, 1927, about ten months after the succession sale is said to have taken place, the Opelousas-St. Landry Securities Company, which concern, according to the testimony of Mr. Dore, Mr. Dupre, and Mr. Castile, purchased the property, sold it under full warranty of title to O. L. Fuselier. The sale was made on credit and the deed reserving the vendor's lien and privilege was recorded in both the conveyance and mortgage records of the parish. Fuselier defaulted on his payments and the vendor foreclosed and became the purchaser at the foreclosure sale on March 16, 1929. On August 29 of the same year the Opelousas-St. Landry Securities Company sold the property under full warranty of title to these defendants. It seems highly improbable that the securities company would twice have sold the land under full warranty if it had not in fact purchased it.

Another circumstance which indicates that the property was sold and that these plaintiffs were aware of that fact is that immediately following the date on which the property is said to have been sold, the plaintiffs abandoned it when the crop of 1926 was harvested and never thereafter made any claim to it until a short time previous to the filing of this suit in May, 1934, and not then, apparently, until after their attention had been called to the fact that the succession records had all been lost or destroyed and that there was no record evidence of the sale until the execution of the proces verbal thereof in January, 1934.

Going back further we find in the record a writ of sale issued by the clerk of court, addressed to Adio Fruge, administrator, authorizing and empowering him to sell at public auction all the effects of the succession "composed of the movables and immovables of the estate of Arsene Fruge, being No. 658, Probate Docket, 13th Judicial District Court, Evangeline Parish, Louisiana, upon the following terms and conditions; cashon the day of sale."

The writ recites that it was issued by virtue of an order of the honorable Thirteenth judicial district court...