91 So. 523 | La. | 1922
By Division C, composed of Justices DAW-KINS, ST. PAUL, and THOMPSON.
This suit is to recover two-fifteenths interest in 376% acres of land situated in the oil fields of Caddo parish. The plaintiffs claim as lineal descendants of Elizabeth Croom, except Dew, who purchased the interest of a coheir of his coplaintiffs; The defendants deny that the land ever belonged to Elizabeth Croom, and they deny also that the plaintiffs are the heirs and representatives of said Elizabeth Croom. They allege that they are owners of the whole property, including the interest claimed by plaintiffs. They further pleaded in the alternative that, if the property ever belonged to Elizabeth Croom, and if plaintiffs are her heirs, then that the said Elizabeth Croom died more than 30 years prior to the filing of this suit, and that her heirs never accepted the succession, nor did they ever perform any act manifesting an intention to accept, and therefore any right of action to recover said estate or their interest therein is barred by article 1030 of the Civil Code; further, that defendants and their authors in title have had the actual, continuous, uninterrupted, peaceable, public possession as owners of the whole of said property for more than 30 years, and have therefore acquired plaintiffs’ interest in said property by the prescription of 30 years.
Certain mineral leases had been executed upon said land, and the lessees were made parties defendant to the end that plaintiffs might have an accounting of the revenues derived from oil and gas production.
There was judgment for plaintiffs as prayed for, and defendants have appealed.-
Mrs. Elizabeth Croom was twice married, first to G. T. Robertson, and second to Isaac Croom. The land in dispute was acquired during her second marriage. She died in 1866, leaving her husband, Isaac Croom, surviving, and three heirs, Louisiana Croom, issue of her second marriage, and Thomas J. and Anne Maria Robertson, issue of her first marriage. The plaintiffs, except Dew, descend from the daughter of the first marriage.
The defendants all hold, or claim to hold, under titles from J. Harris. Harris married Louisiana Croom, the daughter of Elizabeth Croom by last marriage, some time prior to 1S68. The record fails to show any title whatever to Harris from any one having an interest in any part of the land, except the one-sixth interest of Thomas J. Robertson, acquired by deed from him December 16,1871. Harris and his wife sold to Calvin S. Croom in February, 1879, a five-sixths interest in a certain part of the land. This interest was retroceded by the heirs of Calvin S. Croom in July, 1897, the deed being taken in the name of J. H. Harris and his son-in-law, J. E. Cochran. The same five-sixths interest was conveyed by Harris and Cochran to defendant Hammett in 1904. It clearly appears therefore, and indeed it is not disputed, that J. H. Harris never at any time acquired any title from any one to any part of the land, except the’ one-sixth interest from Thomas J. Robertson. It is not unlikely that the sale of the five-sixths interest to Groom in 1879 was in reality intended as a sale by Mrs. Harris, as she owned a two-thirds interest at the time, and her husband only a one-sixth. The retrocession by Groom to Harris conveyed no title to him. The pivotal question in the case is that of prescription.
It may be accepted as a fact established by the evidence that neither Anne Maria Rbb-ertson nor her heirs, the plaintiffs, ever performed any act evidencing an intention to accept or to renounce the succession of Elizabeth Croom prior to filing this suit, which was more than 30 years after the death of Mrs. Croom.
“How can it be said, then, that a forced heir, who is vested with the right of possession of the property of the succession by operation of law and without having to accept the succession, loses ‘the faculty of accepting’ by the prescription of 30 years ? * * *
“But the legal heir who has not renounced * * * and in whom the law has vested seizin * * * without requiring an acceptance * * * has no other right or faculty to lose by prescription than the right or faculty of renouncing.”
The reeord does not show that Harris, the
In several transfers of certain portions of the property, made within 30 years before this suit, Harris acknowledged the outstanding one-sixth interest' — in the sale by his wife, joined in by him, to Croom; in the re-trocession of the heirs of Croom; and in the sale to Hammett, one of the defendants, in 1904. He never made any claim of ownership of the one-sixth interest until the at-tempted sale to Hammett in 1907. There is no reason suggested why he should not have included the one-sixth interest in the first deed to Hammett. He would have done so if he had believed himself the owner. In the deed from Thomas J. Robertson, brother of the mother of plaintiffs, made to Harris in 1871, appears the following significant statement to which Harris subscribed:
“His [Robertson’s] undivided interest held in common with the balance of the heirs of his deceased mother, Elizabeth Croom, and his stepfather, Isaac Croom.”
This was an express recognition on the part of Harris that the heirs held the property in common. Thus by the same token by which Harris acquired the one-sixth interest from Robertson he acknowledged the one-sixth interest in the sister of his vendor.
Counsel have cited and discussed at length a line of authorities to the effect that, where one co-owner has possessed the entire property separately for 30 years, he may successfully oppose any claim of ownership by his co-owner. The authorities have no application to the facts of this case. Harris was not a coheir, and his possession was not of the whole or of any defined portion of the property. His possession was not separate from that of his wife.
Counsel also refer to authorities to the effect that active physical possession of a part of a tract of land with title to the whole, and the intention to possess the whole constitutes full possession. The mere statement of the proposition furnishes its own answer. Harris had no title to the whole, and his title of one-sixth undivided interest, in view of the ownership and possession of the greater interest by his wife, could in no sense be a possession of the whole. To hold that Harris could prescribe for the whole land under his deed to only a one-sixth interest and defeat the rights of the plaintiffs would be to say that by the same ownership and possession he acquired the interest of his wife.
For- the reasons assigned, the judgment appealed from is affirmed at appellants’ cost.
Rehearing refused by Division A, composed of Chief Justice PROVOSTY and Justices OVERTON and LKCJIE.