46 La. Ann. 1571 | La. | 1894
The opinion of the court was delivered by
The plaintiffs, the widow and heirs of James Billiu, seek to recover from defendant certain property in the parish of Lafourche, known as lot No. 16, on the left bank descending of the Bayou Lafourche, about sixteen miles below Thibodaux. They trace title to one undivided half as derived from their father, and aver title from Clara S. Perkins to the other undivided half.
The defendant, Godchaux, answered, pleading the general issue, prescription, and set up title from Meyer aud Joseph Weill of date October 25, 1892; by a supplemental answer, defendant alleged that lot No. 16, claimed in the suit, formed part of Utopia plantation; that the title thereto of James Billiu and Mrs. Perkins, under whom plaintiffs’ claim was divested years before by sales to Marion W. Billiu, under whom defendants claim by various conveyances ; that in these conveyances, all conveying the Utopia plantation, lot No. 16 was omitted in error, but was intended to pass and was conveyed, the description being the “Utopia” plantation, known to embrace No. 16; the estoppel is pleaded, claiming to arise from the fact that the lot was inventoried when James Billiu died as part of “Utopia,” and hence plaintiffs, his widow and heirs, can not now dispute the lot was such part; the answer'prays for judgment against plaintiffs; for the maintenance of the prescription and estoppel pleaded, and that in the event the court should hold the description in the acts do not suffice in terms to convey the property in dispute, that the description be reformed so as to make that conveyance accord with the intentions of the parties.
From the judgment of the lower court in favor of plaintiffs, defendant takes this appeal.
In 1855 James Billiu acquired the plantation, of which the lot No. 16 was part. The description was a front tract of four and a half arpents by forty arpents, and a back tract made up of lots 17, 26, 27, 28, 16, 18 and 19. The lot 16 here enumerated is that in dispute. Subsequently Billiu conveyed one-half the plantation to J. S. Perkins, and then begun, as we gather from the record, a planting partnership between the joint owners. In 1860 Billiu and Perkins
This intention, it is claimed, is manifest from other facts disclosed by the record. The purchase of Marion W. Billiu at the succession sale of his father’s property was in the interest of his mother and his co-heirs, as shown by his counter letter. The purchase by him from Mrs. Perkins was in the same interest. The counter letter is followed by the sale of the family to him of the one-half purchased at the succession sale. Thus placed in his father’s position in reference to the partnership property, the partnership begun in his father’s lifetime continued between him, representing his family, and Mrs. Perkins. In January, 1882, there is on the record a sale of the
The plaintiffs objected to all parol for the purpose of showing that any interest in lot No. 16 not mentioned in the deeds was intended to be conveyed. The alleged error of the acts in not mentioning this lot was introduced in the supplemental answer. If we are to understand the filing of this supplemental answer is disputed, we, dispose of that objection. Error must be specially pleaded. The allegation might have accompanied the other defences on the original answer. Not changing the issue of the ownership of lot 16, but simply amplifying the title relied on by defendant, we think defendant was entitled to the amendment. Code of Practice, Arts. 419, 420; 2 Hennen’s Digest, 1182, No. 9; Payne vs. Railroad, 38 An. 164.
Nor have we any doubt under an allegation of error an omission in an act may be supplied. The power to reform and correct acts so as to make them conform to the real intentions of parties, when, through inadvertence or accident, the purpose is not expressed, is of frequent exercise in courts of equity, and our courts administer the same relief. Of course, the proof of error must be clear. Nor do we appreciate that this relief can not be afforded defendant because the
On the question of the divestiture of the title of James Billiu, we have the succession sale of all his property, including his one-half lot No. 16, then forming part of the Utopia plantation, inventoried, and ordered to be sold. There is the act of mortgage of 1860 of the Utopia, enumerating specially this lot No. 16, under which mortgage the sale was made. It was the Utopia plantation by name and under that order of sale that Marion W. Billiu became the adjudicatee. It is to our minds clear that he became the owner of the undivided half of lot No. 16 by this adjudication. If he had stood before the court in 1875 exhibiting the inventory, the act of mortgage of 1860, the order of sale of the property embraced in that inventory and the mortgage and the proees verbal of the sale of the Utopia, the court would have promptly corrected the manifest error in not enumerating lot No. 16 as part of the Utopia. There is, too, on this branch of the case the record that the succession of James Billiu was closed, the debts paid as far as the property would suffice, with the petition from the executors importing to our minds the significance that all the property of his succession had been disposed of in course of administration. The heirs of Billiu appear to have acted on the theory that nothing remained of the succession property. It was not until 1892, some years after the close of the estate, that the form of the sheriff’s deed suggested this suit. In our opinion the title of their ancestor was divested. That is enough to dispose of their case. They are without interest to question whether the subsequent conveyances of the Utopia plantation, by which the property had been known for years, did not convey lot No. 16 as part of it. We think it did. Levy vs. Ward, 33 An. 1033; Dickson vs. Dickson, 36 An. 870; Bryan vs. Wisner, 44 An. 832.
As to the undivided half of Mrs. Perkins, claimed by plaintiffs, as, her assignees, the case, in our view, is different. She remained indis-i
There is no issue in this case as to rents and revenues reserved, we presume, for further proceedings.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed in so far as it decrees the plaintiff to be the owner of lot sixteen, claimed in plaintiff’s petition, and it is now adjudged and decreed that plaintiff, Mary E. Gladdish, be decreed to be the owner of one undivided half of said lot; the issue as to rents and revenues is reserved, costs of the lower court to be paid by defendant, those on the appeal by plaintiff.