118 So. 320 | La. | 1928
This is a petitory action involving title to the following described tract of land in the parish of De Soto, viz.:
"Beginning at the southeast corner of the northwest quarter of section 30, township 14 north, range 14 west; thence north 32 chains; thence west 20 chains; thence south 32 chains; thence east 20 chains to place of beginning, containing 64 acres, more or less."
The plaintiff alleged that he acquired the property from Dan Hall on March 16, 1927, by deed duly recorded in the conveyance records of De Soto parish, and that the defendant John J. Long is in unlawful possession thereof.
The defendant denied that plaintiff was the owner of the property, alleging that his deed is a mere simulation. In the alternative, defendant averred that plaintiff's title must fall, because defendant had acquired the property from Dan Hall on December 17, 1926, by a deed, duly recorded December 20, 1926, in which, although the beginning point is erroneously stated, the property is nevertheless reasonably identified by references to other recorded deeds and mortgages; that plaintiff had both actual and constructive notice from the public records that defendant had previously acquired title to the property and that he was in possession as owner thereof by virtue of his recorded title. Defendant prayed that his vendor, Dan Hall, be made a party to the suit; that the error in his deed be corrected; that plaintiff's demands be rejected; and, in the alternative, for judgment against his warrantor.
The court below rendered judgment in favor of plaintiff against defendant, and in favor of defendant against his warrantor. The defendant has appealed.
The deed from Dan Hall to the plaintiff recites a cash consideration of $1,250 for the transfer of the property. The testimony adduced on the trial of the case shows that the real consideration for the transfer consisted in part in the discharge of a debt due by the *1086 vendor to the vendee; in part by the assumption by the vendee of a debt due by the vendor to a third person; and in part by the unsecured promissory note of the vendee in an amount sufficient to make up the difference of the purchase price. In these circumstances, the defense that the sale was a simulation cannot be sustained, and this is so, notwithstanding that the consideration for the transfer was much less than the actual value of the property, which is in excess of $2,000.
The remaining question for decision, therefore, is whether plaintiff is bound by the prior conveyance of the property by his vendor to the defendant, notwithstanding the error in the description contained in the latter's deed? We think that he is. On December 17, 1926, Dan Hall, the common author of the parties, transferred to the defendant, John J. Long:
"A certain tract of land particularly described as follows: Beginning at the southwest corner of the northwest quarter of section 30, township 14 north, range 14 west; thence north 32 chains; thence west 20 chains; thence south 32 chains; thence east 20 chains to place of beginning, containing 64 acres, more or less, together with the buildings and improvements thereon. See Book 23, folio 194, and Book 30, folio 187 of the Conveyance Records of De Soto Parish, La."
The sale was made in consideration of the assumption on the part of the vendee of a mortgage for $2,200, recorded in Mortgage Book 27, folio 530, dated November 29, 1925, and bearing against the property conveyed. The act of sale from Dan Hall to the defendant John J. Long was recorded on January 18, 1927, in the Book of Conveyances No. 79, folio 119.
On September 26, 1908, J.J. Hollingsworth sold to William Harris, Jerry Thomas, Dan Hall, and Jesse Morgan (acquiring an undivided one-fourth interest each) certain tracts of land lying in sections 19 and 30, township 14 north, range 14 west, parish of De Soto. *1087 This deed was recorded in the Conveyance Records of the Parish in Book 23, folio 194, on December 17, 1908.
On December 22, 1911, Wiliam Harris, Jerry Thomas, Dan Hall, and Jesse Morgan executed an act of partition in kind among themselves of certain portions of the property owned by them in indivision. By virtue of this partition, Dan Hall acquired in full ownership the tract of land as described and claimed in plaintiff's petition. The act of partition was registered in the Conveyance Records of the Parish in Book 30, folio 187, on December 22, 1911.
In the mortgage and in the sale from Dan Hall to John J. Long, the property mortgaged and sold was inadvertently described as beginning at the "southwest" corner instead of at the "southeast" corner of the quarter section. Nevertheless, in the act of mortgage following the description appears the following declaration, viz.: "For mortgagor's title see Book 23, folio 194, and Book 30, folio 187, of the Conveyance Records of De Soto Parish, Louisiana" — and in the act of sale in connection with the description, as hereinabove quoted, appears the following caution, viz.: "See Book 23, folio 194, and Book 30, folio 187, of the Conveyance Records of De Soto Parish, La."
Plaintiff's contention, briefly stated, is that the description of the property set forth in the deed from Hall to Long is certain and unambiguous, and is not qualified or amended so as to operate against third persons by the words: "See Book 23, folio 194, and Book 30, folio 187, of the Conveyance Records of De Soto Parish, La."
It cannot be disputed that it was the intention of Dan Hall to sell and of John J. Long to purchase the property described in plaintiff's petition, and of which the purchaser is now in possession. The question then is, Does the act of sale between the parties carry their intention into effect, and particularly in *1088 such manner as to convey the information to third persons dealing on the face of the records?
A reference to the act of sale shows that the description of the property is accompanied by the legend, "See Book 23, folio 194, and Book 30, folio 187, of the Conveyance Records of De Soto Parish, Louisiana." Matters referred to are regarded as actually inserted in a deed. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur. The words composing the legend were inserted in the act of sale ex industria, and cannot be rejected as superfluous. They have a technical meaning, well known in conveyancing and to the examiners of titles to real property in this state. The words, or words of similar import, are inserted in deeds evidencing the transfer of real estate, out of an abundance of caution, to supplement the description of the property conveyed and to disclose the nature of the vendor's title.
In Lawler v. Bradford,
"Where reference is made in an act of sale of real estate to the title under which the vendor holds, both acts should be consulted, and taken together, to ascertain the true description of the property."
The controversy there was between parties claiming from a common author. In Frantom v. Nelson,
In Smith Sons v. Baham,
"* * * The name of the person from whom Baham acquired each tract is specially referred to in the act of mortgage. It is conceded that the titles by which Baham acquired the several tracts were extant upon the public records of the parish."
And the court held:
"All of which facts, taken in connection with the recitals of the mortgage and the title papers of record in the parish where the land is situated, furnish ample means of identification, and were sufficient to serve as notice to third persons dealing with Baham."
The case of McDuffie v. Walker,
Nor do we find the cases of Mendelsohn v. Armstrong, 52 La. Ann. 1300, 27 So. 735; Bender v. Chew,
For the reasons assigned, the judgment appealed from is annulled, and it is now ordered that plaintiff's demand be rejected at his costs. It is further ordered and decreed that there be judgment in favor of defendant John J. Long against plaintiff Elmo P. Lee and against Dan Hall on the call in warranty herein, correcting and reforming the act of sale from Dan Hall to John J. Long, of date December 17, 1926, so as to make same describe the property conveyed as follows, viz.:
A certain tract of land particularly described as follows: Beginning at the southeast corner of the northwest quarter of section 30, township 14 north, range 14 west; thence north 32 chains; thence west 20 chains; thence south 32 chains; thence east 20 chains to place of beginning containing sixty-four (64) acres, more or less, together with the buildings and improvements thereon. See Book 23, folio 194, and Book 30, folio 187, of the Conveyance Records of De Soto Parish, Louisiana,
— and recognizing defendant John J. Long to be the true and lawful owner thereof. *1091