Winn Parish Bank v. White Sulphur Lumber Co., Limited

• Decision Date: 26 May 1913
• Docket Number: 19,819
• Citation: 62 So. 907,133 La. 282
• Court: Louisiana Supreme Court
• Parties: WINN PARISH BANK v. WHITE SULPHUR LUMBER CO., Limited

62 So. 907

133 La. 282

WINN PARISH BANK v. WHITE SULPHUR LUMBER CO., Limited

No. 19,819

Supreme Court of Louisiana

May 26, 1913

Rehearing Denied June 30, 1913

SYLLABUS

(Syllabus by the Court.)

In a sale of all the merchantable pine timber on 2,600 acres of land, divided into a number of tracts, a stipulation that should the title to any part 'fail,' a pro tanto deduction shall be made from the last credit payment, represented by the note of the purchaser, is a lawful agreement which will be enforced against a pledgee of the note with notice of the stipulation.

Such deduction should be made from the principal of the note and not credited as a partial payment as of date of its indorsement on the instrument.

Where all the parish records have been destroyed by fire, and no better evidence is shown to exist, a 'township ledger' kept by the State Auditor is competent evidence to show the sale of public school lands in a certain township and the payment of the proceeds of sale into the State Treasury.

A tax deed executed in 1881 and duly recorded is prima facie evidence of a valid tax sale, and the fact that the property may not have been assessed in the name of the record owner is a defect cured by the prescription of three years provided by article 233 of the Constitution of 1898.

A duly recorded tax sale to the state in the year 1886 precluded the assessment and sale of the same property for taxes for the year 1898.

A sale of all the merchantable pine timber on 2,600 acres of land at the rate of $ 10 per acre does not imply any warranty of quantity per acre or quantity on any particular tract.

The transfer of a note identified with an act of sale and mortgage carries with it the right to recover the attorney fees stipulated in the instrument in the event of suit for the collection of the note.

W. C. & J. B. Roberts, of Colfax, and Grisham & Oglesby, of Winnfield, for appellant.

John H. Mathews, of Winnfield, for appellee.

OPINION

LAND, J.

This is a suit to recover an alleged balance due on a note for $ 5,666.66, of date February 20, 1907, due February 28, 1910, signed by defendant and payable to the order of Mrs. S. A. Wright, S. A. Wright, tutrix, W. A. Wright, and J. W. Wright, with interest at the rate of 8 per cent. per annum from date until paid in full.

The note was paraphed by a notary public to identify it with an act of sale and mortgage of the same date, containing the clause of 10 per cent. attorney fees in case of suit.

The note was indorsed as follows:

'If the title of the timber fails of which this note is a part of the purchase price, then this note is subject to a credit or diminution to that amount. The credit being at the same rate as the sale as provided in the deeds of record.

'[Signed] S. A. Wright.

'[Signed] S. A. Wright, Tutrix.

'[Signed] W. A. Wright.'

The note was also indorsed as follows:

'Nov. 24, 1909.

'By return timber on N. E. 1/4 of S.W. 1/4, sec. 24, undivided half interest in N.W. 1/4, sec. 11, and S. E. 1/4 of N. E. 1/4, sec. 13, Tp. 10 N., R. W., containing 160 acres at $ 1600.00.

'Nov. 27, 1909.

'By sight draft White Sulphur Lbr. Co., on Texarkana National Bank $ 1322.62.

'[Signed] S. A. Wright.

'[Signed] S. A. Wright, Tutrix.

'[Signed] W. A. Wright.'

On the trial it was admitted that the plaintiff held the note in pledge and as collateral security for indebtedness due by the Wrights.

The main defense was that, under the terms of the contract of sale and mortgage between the Wrights and the defendant, the latter had the right to have the principal of the note sued on diminished, at the rate of $ 10 per acre, should the title to any of the lands described in the deed fail, and that as a matter of fact the title to 300 acres of timber land sold, in addition to the tracts described in the indorsement on the note, had failed, and that the defendant was therefore entitled to an additional deduction of $ 3,000 on the note sued on.

The case was tried, and there was judgment in favor of the plaintiff for the face of the note, with interest from date thereof, less credits indorsed thereon, and also for 10 per cent. attorney fees and costs. Defendant has appealed.

On February 28, 1907, the Wrights sold to the defendant company all the merchantable pine timber on a number of tracts of land, described by sectional subdivisions, and totaling 2,600 acres. The price was $ 26,000 ('that is, $ 10 for each acre of pine timber' conveyed), payable as follows: $ 9,000 cash, and the balance in three equal annual installments of $ 5,666.66 each, represented by notes, bearing 8 per cent. interest from date until paid. It was stipulated that none of the timber conveyed should be cut until all the price of the same should be paid in full. The act also stipulated the payment of 10 per cent. attorney fees in case it should become necessary to resort to legal proceedings for the recovery of the amount of said notes or any part thereof.

In addition to the general warranty clause, the deed of sale contains the following stipulations:

'The vendors herein specifically warrant the vendee herein against any damage that may be caused by (to?) it by suit for eviction of any of the property conveyed, provided said suit shall have finally terminated by judgment against the vendee herein.'

'It is further understood and agreed, and is a part of this contract, that, should the title to any of the property herein conveyed fail before the last and final payment of the purchase price herein, the purchase price of that part, the title to which has failed, shall be deducted from the last and final payment herein, and the vendors herein further bind and obligate themselves, their heirs and assigns to remove the clouds that may be upon the title to any of the property herein conveyed.'

The defendant in its answer avers that the title to five tracts of land embraced in said sale has failed.

1. The first tract is the S. E. 1/4 of section 16, township 6 north, range 2 west. Said section was appropriated by Congress for the use of public schools within the township. The objection of defendant to the title of Mrs. S. A. Wright et al. to the S. E. 1/4 of the section is that the records do not show the sale of this quarter by the parish treasurer according to law. The abstract of title furnished by the defendant shows a certificate from the Auditor of Public Accounts of the state of Louisiana that township ledger No. 1, folio 417, in his office, contains entries of the sale on June 23, 1860, of the N. E. 1/4 of section 16 to Peter Behan, and of the sale of the S. E. 1/4 of the same section to Thomas Milling for $ 204, one-tenth cash and nine notes. The same abstract shows sale of said S. E. 1/4 by Milling to Scott in 1873; by Scott to Kelley in 1886; by Kelley to Scott in 1886; and estate of Scott by tax sale to J. D. Wright in 1897. J. D. Wright was the author of Mrs. S. A. Wright et al.

It was admitted on the trial that the courthouse and records of the parish of Winn were destroyed by fire between 1875 and 1878 and again in 1886. It may be fairly presumed that the records of 1860 relating to sales of section 16 in the parish of Winn have been destroyed. As far as the record shows, the entries in the ledger in the office of the State Auditor is the only evidence of such sales that can be procured after the lapse of more than half a century. Under Act No. 119 of 1855, the Auditor of Public Accounts had the sole superintendence and direction under the authority of the United States, of the public school lands and of their location and relocation. The same statute made it the duty of the Auditor to keep an account, showing separately the whole amount of money received into the Treasury from all sources in each fiscal year, and the amount received from each parish and from each source of revenue in each parish. Id. § 4, par. 6. The Auditor was further required to keep an account of every separate fund in the Treasury authorized by law, and to keep an account under appropriate heads of all money which may have accrued for specific purposes. Id. § 5, par. 6. It was provided by Act No. 321 of 1855 that all moneys received into the said Treasury from the sale of...