46 La. Ann. 331 | La. | 1894
The opinion of the court was delivered by
John Ford died in 1868, leaving eight minor children, some personal property and the small tract of land in the parish of Catahoula which forms the subject of this litigation. In
On the 11th January, 1866, the district clerk, upon an application of Dean, as administrator, praying for a sale of all the property of the succession to settle and liquidate the same, rendered an order of sale of all the property “ at public auction on the terms and conditions required by law.”
On the 26th December the following instrument, upon which the title of the defendants is based, was executed by Dean and placed of record:
State of Louisiana, \
Parish of Catahoula. J
Know all men by these presents, that I, A. B. C. Deán, administrator for the heirs of John Ford, did offer for sale on the first day of December, 1866, according to law, the tract of land below described to highest and last bidder, whose name will also appear below. Therefore, the aforesaid Mr. Dean, a resident of Catahoula parish, Louisiana, does bargain, sell, convey and deliver unto Solomon Jemison, a resident of the aforesaid parish and State, and Ransom B. Jemison an equal portion of said land, the said Ransom B. Jemison being a resident of Caldwell parish, the following tract or parcel of land, with all the improvements and appurtenances thereunto belonging, on what is known as Sandy Creek, Catahoula parish, Louisiana, to-wit: (Here follows a description of the property.)
“ The consideration of the above named land given by the Jemi
“ In testimony whereof we have this day signed our names and affixed our seals thereunto in the presence of W. H. Holloman and Levi Prestridge, witnesses of lawful age and domicile. Signed, sealed and delivered on this the 22d December A. D. 1866.
(Signed) “ A. B. C. Dean. (seal.)
(Signed) “ Solomon Jemison. (seal.)
(Signed) “ Ransom B. Jemison. (seal.)
Witnesses:
(Signed) • “ W. H. Holloman.
(Signed) “ Levi Prestridge.”
On the 22d November, 1869, Solomon and Ransom Jemison sold the property to R. L. Elliot.
R. L. Elliot sold to W. H. Elliot on the 26th December, 1886.
W. H. Elliot sold to William MeBroom on the 18th day of October, 1888.
William MeBroom sold to P. M. Mills (one of the defendants) on the 27th day of May, 1890.
F. M. Mills transferred a portion of this property to C. G. Wood-bridge, on the 9th day of February, 1891,
C. G. Woodbridge sold his interest on the 29th day of June, 1891, to Guy Phillips.
F. M. Mills and Guy Phillips are at present in possession of the property under their respective titles, and claim to be owners thereof.
On the 25th July, 1892, the plaintiffs, as heirs of John Ford, instituted the present petitory action against Mills and Phillips, praying to be declared the owners and placed in possession of the tract of land referred to, and for rent of the same, at the rate of $200 per annum, from the 27th May, 1890.
Plaintiffs attack all the proceedings in the matter of the succession of Pord, and declare them to be absolute nullities.
Defendants filed exceptions, only one of which has been referred to in this court.
That exception, which was to the effect that the necessary parties had not been made and that the persons holding and claiming the property as owners under the Dean deed and since should have all been made parties, was overruled and defendants answered.
They pleaded the general issue, averred their good faith, maintained the legality and validity of the proceedings in the matter of the succession of Ford and of the various titles thereunder. They averred that the purchase price of the sale to the Jemisons was received by Dean, administrator, and applied by him to the payment of valid existing debts of the succession, and finally pleaded the prescription of five and ten years.
The plaintiffs having alleged the absolute nullity of the proceedings in the matter of the succession of Ford and gone to trial on that issue, we do not think it was necessary for them to have made other parties than those before us. See Belard & Johnson vs. Gebelin & Duggan, decided this day, also, Succession of Bright, 38 An. 141.
The District Court held the sale from Dean to the Jemisons to be so radically null as not to serve as the basis for the commencement of prescription. It was of the opinion, however, that there was no evidence before it impugning the good faith of R. L. Elliott and those holding the property after him, and therefore took as the initial point of prescription the date of R. L. Elliott’s purchase. With that date as the starting point, the court held that the prescription of ten years had accrued even as against the minors. It therefore sustained the plea of the prescription of ten years and rejected plaintiffs’ demand. They appealed.
We are of the opinion that plaintiffs’ objections in so far as they seek to base the nullity of the transfer of the property to the Jemisons upon the ground that Dean was not the administrator of the succession for the reason that he was neither a creditor nor a relative or connection of the Ford family, and that there is not in the record any evidence of a direct order of the district clerk himself
We next come to defendant’s claim of prescription, based upon the -transfer of the property by the' Jemisons to R. L. Elliott, and upon the subsequent changes of ownership. If R. L. Elliott’s-title and possession was of such'a character as'to serve as the commencement of the prescription of ten years, the conclusions reached by the district judge on this branch of the case were correct, except as to Elijah Ford.
, We have therefore to inquire into the question of the prescription of ten years, based upon the transfer of .the property from-the Jemisons to R. L. Elliott and upon the subsequent changes in ownership.
Plaintiffs contend that had the court permitted. J. J. McKeithen, Thomas Davis, Ool. M. O. Davis and Wade Hough to testify upon the points which they sought to interrogate them upon and had not excluded their testimony as it did (but under reservation of their bills of exception), they would have established the bad faith of the two
Plaintiffs claim that under any circumstances minority has saved the rights of the children of William Duncan Ford and those of Elijah Ford. We think that the evidence establishes that the prescription of ten years had run as against William Duncan Ford before his death — he must have been thirty-four years of age at that time. He became of age in 18Y2 and died in 1885. R. L. Elliott purchased the property as we have seen in 1869. Elijah Ford must have become of age in 1883. Prescription as to him was not completed when this suit was brought. For .the reasons herein assigned, it is ■ordered, adjudged and decreed that the judgment appealed from be ■and the same is hereby affirmed as to all the plaintiffs — Elijah Ford excepted. It is further ordered, adjudged and decreed that the judgment be annulled, avoided and reversed as to Elijah Ford, and judgment is now rendered in his favor and against the defendants, recognizing and declaring him to be the owner of an undivided interest in the property mentioned in the petition to the extent of the interest inherited-by him in the same. That interest not clearly appearing by the record as to its extent, the case is remanded to the lower court to have the same ascertained, fixed and declared; ■costs of appeal to be shared between the appellants, other than Elijah Ford, and the appellees in proportion to their respective interests.