57 So. 322 | La. | 1912
Statement of the Case.
Plaintiff alleges that it is the owner of an undivided one-fourth interest in the N. W. % of section 20, township 20 north, range 15 west, in Caddo parish, and, after setting forth its title, further alleges that defendant “claims to be the owner of said property,” and that neither it nor defendant is in possession; and it prays that defendant be cited, and that it have judgment decreeing it to be the owner of the interest described, and decreeing a partition of the property in kind, and putting it in possession of the part that may be allotted to it. Defendant filed an exception, alleging actual possession for more than a year, and praying that plaintiff be relegated to “a regular petitory action,” which exception, having been referred to the merits, it answered, setting up title to the entire tract, pleading the prescription of 3 and 10
Omitting, for the present, certain alienations, to which we will refer hereafter, it appears that the quarter section of land here in question was owned by Stephen D. Pitts and his wife, Ann, as community property, and that they died (the last of the two about 1883), and were succeeded in title by 'their sons, T. H. Pitts, R. D. Pitts, and R. L. Pitts; that T. H. Pitts died in 1877, and was eventually succeeded in title by his daughters, Sallie (who became Mrs. Austin) and Lucy (who became Mrs. Jocelyn); that R. L. Pitts died in 1905, and was succeeded in title by his sons S. D. Pitts, A. O. Pitts, A. L. Pitts, and T. H. Pitts; that R. D. Pitts died in 1905, and was succeeded in title by his daughter Annie (Mrs. Graham) and his son, L. J. Pitts; so that, if there had been no alienation, the land would now be owned by Mrs. Austin and Mrs. Jocelyn, each for one-sixth, aggregating four-twelfths, S. D., A. C., A. L. and T. H. Pitts, each for one-twelfth, aggregating four-twelfths, and Sirs. Graham and L. J. Pitts, each for one-sixth, aggregating four-twelfths..
Referring now to the alienations, we find that on November 1, 1886, the land in question was registered as forfeited to the state for the taxes of 1885, assessed to the succession of Mrs. Ann Pitts. On June 3, 1889, it was sold to Benjamin & Barron for the taxes of 1888, similarly assessed; and, within the 12 months allowed for redemption, to wit, on May 21, 1890, Benjamin & Barron conveyed “such title as they received” to R. D. Pitts; but, so far as we are informed by the record, the deed executed by the parties was never recorded. On September 29, 1895, Mrs. Austin paid into the state treasury the sum of $4.60, as the amount, including interest, penalties, and costs, due for the taxes of 1885, and obtained from the State Auditor a certificate of redemption, as against the - forfeiture for said taxes, which had been registered on November 1, 1886. On May 8, 1899, Mrs. Austin executed an instrument, purporting to be a sale of said quarter section, together with a quarter section in another range and township, to S. N. Kerley and the Jeems Bayou Fishing- & Hunting Club; and nearly 16 years later, to wit, on March 3, 1905, R. D. Pitts executed an instrument reading, in part, as follows:
“Before me * * * personally appeared R. D. Pitts, * * * who declared * * *' that he is one of the three heirs of Stephen D. and Mrs. Ann Pitts, and, as such, that he did, by these presents, waive, relinquish and renounce in favor of S. N. Kerley and the Jeems Bayou Fishing & Hunting Club * * * all his right, title and interest in and to the following described property: [describing the property that had been conveyed to Kerley by Mrs. Austin].”
The consideration of this transfer and waiver is this, to wit:
“That said Pitts has a like waiver of interest in other lands from the heirs of Stephen D. and Ann Pitts, deceased, and he desires here to ratify and confirm the sale of this particular property, by his niece, Mrs. Sallie Austin, to S. N. Kerley, * * * and by said Kerley sold, or agreed to be sold, to the said Fishing & Hunting Club; his niece and the other heirs of Stephen I). and Mrs. Ann Pitts having ratified and confirmed the transfer made by him of another piece of property belonging to the succession of said Stephen D. and Mrs. Ann Pitts, his mother.
“The said Pitts further states that, while there has been no written partition between the heirs of Stephen D. and Mrs. Ann Pitts, there was an understanding and agreement between them as to a division of the property, and that the property herein described has been set aside to Mrs. Sallie Austin, who sold it to S. N. Kerley, and, by said S. N. Kerley was transferred, or agreed to be transferred, to the Jeems Bayou Fishing & Hunting Club, and that it was his purpose and intention to here ratify and confirm this sale to said Kerley, above referred to, and to waive and renounce in favor of said Kerley and the said Fishing- & Hunting Club all right, title and interest in said property.”
On April 12, 1907, the defendant herein obtained an order, in the United States District Court for the Western district of this state, in the matter of the bankruptcy of S. D. Pitts, who, as one of the four sons ot
Assuming that defendant has acquired the interests in said property which were inherited by Mrs. Austin, R. D. Pitts, and Mrs. Jocelyn, it has obtained title, in that way, to three-fourths of the whole; thus: Mrs. Austin, two-twelfths, R. D. Pitts, four-twelfths, Mrs. Jocelyn, two-twelfths, S. D. Pitts, one-twelfth, total nine-twelfths or three^fourths. The remaining one-fourth interest was inherited by A. C., A. L., and T. H. Pitts (sons of T. H. Pitts, and brothers of S. D. Pitts, bankrupt), and was sold by them to plaintiff, by two acts of date October 30, 1908, and duly recorded. There was judgment in the district court in favor of plaintiff, and defendant prosecutes the appeal.
Opinion.
In the case last above cited, this court said, with regard to the identical conveyance to which we are now referring:
“When Rush D. Pitts purchased from Sam Benjamin and Isaac Barron, as adjudicatees at the tax sale made to them in 1887, all rights which they may have acquired therein, he, for the benefit of himself and his coheirs, lifted the cloud which rested on their title, as heirs, by the adverse claims of those parties.” Pitts v. Kerley, 126 La. 237, 52 South. 286.
It is not contended that, as a matter of fact, the defendant was guided by the public records, in so far as the tax title was concerned, or that, at the time it accepted the ratification and relinquishment from R. D. Pitts, it had any knowledge or suspicion that the conveyance to him from Benjamin & Barron existed, or had ever existed. Nevertheless, if the situation were altogether as the proposition that we are considering assumes it to be, we are inclined to think that it would be well founded. There is, however, a defect in the minor premise. R. D. Pitts did not undertake to convey title to the whole property.
The instrument that he executed begins by declaring, in unmistakable terms, the capacity in which he appeared and was acting, thus:
“Personally appeared • * * R. D. Pitts, * * * who declared * * * that he is one of the three heirs of Stephen D. and Mrs. Ann. Pitts, and, as such [italics by the court], that he did, by these presents, waive, relinquish and renounce * * * al his right, title and interest,” etc.
What right, title, and interest did he thus waive, relinquish, and renounce? The answer is plain. He had just declared that he was “one of the three heirs” of his parents, and that what he was doing he was doing in that capacity. So that the title that he waived, relinquished, and renounced was the title which was vested in him “as such” heir. That was the only title which, without the perpetration of a fraud upon his coheirs, he could alienate or incumber; and that what, from the language used, he appears to have done is exactly what he intended to do is sustained by the presumption that he did not intend to perpetrate a
We are therefore of opinion that the case has been correctly decided, and the judgment appealed from is accordingly affirmed.
43 South. 889.