No. 304 | La. | Oct 15, 1891
The opinion of the court was delivered by
Petitioner, alleging ownership and possession, in good faith, of the following described real property, viz.: “ All that portion of lot, or block, sixty-eight (68), of the city of Shreveport, north and east of Bosworth’s boundary line,” owned by Mrs. M. D. O. Oane, in 1874; and that he acquired the same at sheriff’s sale made in 1886, in the foreclosure of a special mortgage executed by Mrs. Cane, in favor of one Leavenworth, in 1874, and in the proeesverbal whereof said property is described as “all of lot or block sixty-eight (68), north and east of Bosworth’s boundary line,” enjoins the seizure and sale of same, under an execution issued under a judgment in the suit entitled M. J. McCormick vs. M. D. O. Cane.
He alleges the death of the plaintiff in execution, and represents that his heirs are Mrs. Anna B. Stockwell, Miss Williamena B. McCormick, and Mr. William B. McCormick; and he avers that Mrs. Stockwell has no interest in said judgment or execution, because she has long since conveyed her interest therein to S. B. McCutcheon, who denies having authorized the issuance of said writ. He prays judgment for five hundred dollars general damages, and two hundred ‘ and fifty dollars attorneys’ fees, against
The two defendants named moved to strike from the petition the allegations in reference to the assignment by Mrs. Stockwell to McCutcheon, and his denial of authority for the issuance of the writ of execution, on the ground that they are foreign to any legal investigation of this case; and no right or interest, as such, of Mc-Cutcheon, can be determined in this case, as the plaintiff “must stand against the world on his own title; and further, because neither Mrs. Stockwell nor McCutcheon are made parties to this suit.” p
This motion being overruled, the two defendants named filed an answer in which they first plead a general denial, and then urged in a special defence, that they caused to be seized, in the execution of their judgment, “ a certain lot of ground in that portion of block sixty-eight (68) adjoining and to the north and northwest of the land sold by S. Bennett and Mrs. M. D. O. Cane to George M. Nicholls, in April, 1848; and since said time has remained a separate and distinct portion of block sixty-eight, and is the property of Mrs. Cane, and that her title thereto has never been divested.”
Their answer then avers that plaintiff’s petition and annexed documents disclose no grounds for this action. And it further avers that the execution enjoined runs in favor of Anna B. Stockwell as a co-heir of the two defendants named, but the injunction bond does not. They pray the dissolution of the injunction, with $500 general damages, and $500 special damages awarded against the plaintiff.
On these issues the parties went to trial, and there was judgment in plaintiff’s favor, perpetuating his injunction without damages.
I.
It is our opinion that the defendants’ motion to strike from the plaintiff’s petition the allegations referring to the assignment of Mrs. Stockwell to McCutcheon of her interest in the judgment, execution of which is enjoined, should have prevailed, because such an issue can not be litigated in this suit. The controversy presented by the plaintiff, primarily, is title vel non of the property seized, and it is of no consequence to him what particular person is owner of the judgment under which same is seized. The injunction is directed against the seizure and sale of particularly described real property,
We can not, in the present state of the case, remedy the error, otherwise than by declining to consider the averments referred to. The informality suggested in the injunction bond can not be considered either, as there was no motion made to dissolve on that account filed in limine.
II.
The controversy being narrowed within proper limits, may be stated in this wise: The defendants seized the property claimed, amongst others, as that of Mrs. Oane, and the foundation of plaintiff’s claim of ownership is the mortgage from Oane to Leavenworth, which he, as assignee, executed against the mortgaged property, and because the adjudicatee of same at execution sale. Hence the question at issue, and to be determined is, whether the plaintiff acquired title thereby to the particular property in dispute; and that must be ascertained by reference to the acts of mortgage and the sheriff’s sale. If these fully and sufficiently describe the property to convey a title, the plaintiff’s injunction must be perpetuated, leaving the defendants to assert whatever adverse rights they have in some other proceeding.
The defendants were seeking, by an execution of a judgment via ordinana, to collect a debt. There was no effort to enforce a mortgage. There is no claim of that kind set up in their answer. Plaintiff enjoined the sale of particular property on the ground that he had acquired title from Mrs. Oane in the foreclosure of the Leavenworth mortgage. He can take nothing by this action other than that MrSv Oane mortgaged to Leavenworth, for the plain reason that, in the confessed foreclosure of that mortgage, he could not cause to be seized and sold any property other than that which she had hypothecated to his assignor.
Referring to the authentic act of mortgage from Oane to Leavenworth, we find the following is the description of the property which is therein hypothecated, viz.: “All that portion of lot or block sixty-eight (68), north.and east of Bosworth’s east boundary, now owned by Mrs. M. D. C. Oane.”
The same description is contained in the Ji. fa. under which sale was made to the plaintiff under judgment in the suit entitled John R. Jones vs. Mrs. M. D. O. Oane.
The judgment recognizing the mortgage and ordering sale of the hypothecated property, recites the same description as that contained in the act of mortgage.
The sheriff’s prooes verbal of sale contains the same description.
This is identically the same description as that contained and set out in the plaintiff’s petition.
The description of the property as given in the advertisement of sale enjoined is as follows, viz.
“Part of block sixty-eight (68), in the city of Shreveport, beginning at the north corner of lot sixteen.(16), in block fifty-four (54), run thence on a prolongation of the northwest boundary line of Spring street, along the Hamilton Oil Mill line, to Cross bayou; thence down the bayou to a point from which a line parallel with the first described line will strike the north corner of lot sixteen (16) in block fifty-five (55) ; thence along the northwest boundary line of block fifty-five (55), and - the prolongation of the same to the point of beginning, containing about an acre and a half, fronting on Gross bayou on one side, and the Texas and Pacific railroad on the other.”
The question to be solved is, whether the property claimed by the plaintiff is contained in the description of the property as advertised for sale.
Then we must ascertain what is the property described in plaintiff’s deed, as “ all that portion of block sixty-eight (68) north and east of Bosworth’s boundary line.”
There is nothing ambiguous or uncertain in this description. “ Bosworth’s boundary line ” is a fixed and definite limit, and can be easily located; and hence “ that portion of block sixty-eight (68) north and east ” of thatline is easily located. No one examiningthe map of the city of Shreveport could easily mistake its locality, or the extent of its area. In their printed brief defendant’s counsel aver that they “ never contested (plaintiff’s) title to that portion of block sixty-eight (68) covered by his deed, or by the mortgage of Leavenworth ”(p. 7).
Reference to the maps in evidence discloses that block sixty-eight (68) fronts on Gross bayou on the north, is of an irregular frontage on that side, and extends on the south side nearly the entire width of three adjoining blocks. At one time this property
The description of the property sold is as follows, viz.:
“ The following piece of ground in the town of Shreveport, and known as a part of block number sixty-eight (68), and described and bounded as follows, to-wit:
“ Commencing at the corner of block No. 54, and corner of lot No. 9, of said block, it being the northwest corner of said lot and block, and running in a direct line as a continuation of the northwest boundary (line) of Market street, until said line reaches Cross bayou; and running down said bayou until it reaches a line drawn from Cross bayou parallel to the line first above described, and extending from the bayou to the northwest boundary line of block numbered fifty-four (54) in the prolongation of said line; thence along said last line to the starting point, so as to include within these boundaries two and five-eighths (2^s) acres.”
By this conveyance, block 68 was completely severed and sub • divided into three distinct and separate lots, each one distinct, separate and well' defined — as will appear from the DeVoe map in evidence — the 2)é acres lot sold to Nicholls reaching across block 68, from the corner of lot No. 9, in block 54, to Cross bayou, and completely covering the intervening area.
The portion of block 68 to the north and east of the Nieholl’s lot— which is the portion now in controversy, and precisely the same as that contained in the advertisement of the sale which is enjoined— is found to contain one and one-half (l,la) acres.
That portion of block 68 to the west and south of the NioholPs lot is much larger than either of the other two lots, the distance from front to rear being greater.
The portions sold to Nicholls was adjudicated to W. E. Hamilton, by same description, in December, 1868, and thereon he erected and established his oil mill plant, as indicated on the DeVoe map.
On the 7th of December, 1871, Mrs. Cane and Mrs. McCormick conveyed to A. W. Bosworth the following described lot, viz.: “Being a part of block sixty-eight (68), in said city, according to the original map, said-lot or block sixty-eight (68) having been ■allotted to these vendors in the partition of the original Shreveport Town Company of record, and the land herein conveyed is that part
Subsequently there was a partition between Mrs. Cane and Mrs. McCormick; and on the 10th of January, 1874, Mrs. Cane consented to the Leavenworth mortgage aforesaid, by the description given supra, to-wit: “ All that portion of lot, or block, sixty-eight (68), north and east of Bosworth’s east boundaryand not as stated in the plaintiff’s petition, viz.: “all of lot or block sixty-eight (68) north and east of Bosworth’s boundary line,” the two descriptions being materially different.
A full and complete description of the Bosworth purchase has been given, in order to show that the “ Bosworth’s east boundary ” was a fixed and established line, by the Leavenworth survey of November 27, 1871, antecedent thereto — the surveyor becoming,- subsequently, the mortgagee of Mrs. Cane, Bosworth’s vendor.
We have also given a full and complete description of the property Nicholl’s purchased from Cane and Burnett in 1848, for the purpose of showing what is meant by “ the northwest boundary line of Spring street, along the Hamilton Oil Mill line,” which occurs in the advertisement of the enjoined sale; and to show that ever since 1848 the Hamilton Oil Mill property has had a- definite and fixed eastern boundary line, as will appear from the De Voe map.
It is upon these descriptions, thus established by contemporaneous public records, that the defendants rely for the assertion in their answer, that Mrs. Cano-, their judgment debtor, still owns “ that portion of block sixty-eight (68) adjoining and to the north and
Under these circumstances, it seems quite clear that when Leavenworth accepted .the mortgage of Mrs. Oane on “ all that portion of lot or block sixty-eight (68) north and east of Bosworth’s east boundary,” situated on the extreme northwestern part of that block, he did not acquire a mortgage on “that portion of block 68 adjoining and to the north and northeast of the land sold” by Oane and Bennett to Nicholls in 1848, situated on the extreme northeastern part of the block; and between which two properties the Hamilton Oil Mill property of 2£8 acres has intervened since 7848.
It appears that in 1886 the plaintiff instituted suit against Mrs. Cane in the foreclosure of the Leavenworth mortgage, of which he was the assignee, and became the adjudicatee of the hypothecated property, by the identical description given in the mortgage, thereby placing himself in Leavenworth’s place and stead, paying therefor §100.
It further appears that under expropriation proceedings in 1881, subsequent to the mortgage, though antecedent to this sale, the New Orleans Pacific Railway Company acquired a small portion of block 68, situated east and south of the Bosworth lot, for which they paid on the Leavenworth mortgáge §2750, same being equal to the capital of the mortgage debt and cost.
In 1871 Bosworth paid for the small lot he purchased §5300. Nicholls paid, in 1848, for the 2% acres he purchased of Oane and Bennett, §2625, and Hamilton paid, in 1868, for the same property §8000.
Is there any reason to suppose that the lot in question, adjoining as it does the Hamilton Oil Mill property on the east, of 1% acres, was not worth as much proportionately? Oan it be supposed that this valuable property, in addition to the residue of the property ad
To fully disclose the plaintiff’s contention, we quote the following pertinent extracts from the brief of plaintiff’s counsel, at pp. 4 and 5, to wit:
“This is the description: The said Mrs. M. D. O. Oane declares that she does, by these presents, specially mortgage and hypothecate •unto and in favor of said F. P. Leavenworth, his heirs and assigns, the following described property, situated in the city of Shreveport, La., to wit: All of that portion of lot or block sixty-eight (68) north and east of Bosworth’s east boundary, now owned by the said Mrs. M. D. C. Oane.
“ It is admitted she owned the land in controversy at date of mortgage, and it is averred in answer she owned it in 1848. Now she mortgages all the land east and north of the Bosworth tract, and then adds, now owned by the said Mrs. M. D. O. Oane. That is, if she owned any more land in block or lot 68 she mortgaged that also, as we'will show further on.”
Counsel subsequently adds the following, viz.:
“ The extreme portion of said block 68, east of Bosworth’s east line, is the tract marked Jno. R. Jones, and is the tract in controversy. W. R. DeVoe, the city surveyor, made this map and says this tract is east of Bosworth’s tract and a portion of lot or block 68 of the city of Shreveport.”
We do not consider the language of the act of mortgage as hypothecating all the land east and north of the Bosworth tract, then owned by Mrs. Oane. Had she so intended, she would have employed different and more comprehensive language, better calculated to have conveyed such an intention. The statement of DeVoe, as a witness, is strictly true, but it does not throw any light on the question.
The learned judge, in his exceptionally able opinion, says:
“ If, in the mortgage to Leavenworth, and sale to Jones, the land had been merely described as all,.the land then owned by her (Mrs. Oane) in block 68, it would have been sufficient. No one could have been misled by such a description, and no difficulty could have been met in identifying the property.”
For this reason we consider the judge’s conclusion, clearly, a non sequiter.
The learned judge cites the fact that the defendants remained inactive and silent while Jones’ sale was pending, as an evidence of their manifest acquiescence in his purchase. But the same question recurs; the purchase of what property? The argument is self-destructive.
He, also, cites the expropriation proceedings supra, and her acquiescence in the application of the proceeds as a credit on the Leavenworth mortgage debt, as an acquiescence in the existence of a mortgage on the property. But the question instantly arises: what property was mortgaged?
To each and all the questions, the answer is the same.
Reference is made, in the brief of the plaintiff’s counsel, to an averment made by Mrs. Oane in her answer in the expropriation suit, to strengthen the Leavenworth mortgage and Jones’ title; but that document forms no part of the evidence offered, was not referred to in the plaintiff’s petition, and is not mentioned in the judge’s reasons for judgment. To that suit, neither the plaintiff nor'the defendants were parties or privies. The defendants are Mrs. Oane’s grandchildren, but they are nob her heirs, because she is still living. It is not possible for us to give it any effect. The plaintiff must stand or fall upon the title he derived at sheriff’s sale.
The testimony shows that plaintiff has been, since his purchase in 1886, exercising some rights of ownership over the property, such as grading, and the like. His right to claim compensation therefor should be reserved; but the judgment in his favor must be reversed, and his injunction dissolved, with costs, without damages; the defendant’s right being, in this respect, reserved likewise.
It is, therefore, ordered and decreed that the judgment appealed from be and the same is amended and set aside; and it is now ordered and decreed that there be judgment dissolving plaintiff’s injunction at his cost, without damages, the right of defendants being reserved in this respect.