McCoy v. Toms

Sep 26, 1980

No. 80-C-1517

Versions:388 So. 2d 1161

1980 La. LEXIS 8546

Concurrence Opinion

DIXON, C. J., and BLANCHE, J.,

concur in the denial.

*1162Defendant has not possessed the property in dispute for 30 years. In order to acquire it by prescription, he therefore must tack his possession to the possession of his predecessors in title. Tacking is governed by articles which deal with 10 year acquisitive prescription. C.C. 3493-96. These articles apply alike to 30 year acquisitive prescription. C.C. 3505; Stutson v. McGee, 241 La. 646, 130 So.2d 403 (1961). According to C.C. 3483-85, the title under which one must possess in order to acquire property by 10 year prescription is a title that transfers the ownership of the land. Defendant’s title does not convey the ownership of the disputed property, and for this reason defendant cannot tack the possession of his ancestors in title. Cf. Pierce v. Hunter, 202 La. 900, 13 So.2d 259 (1943); Hunter v. Forrest, 195 La. 973, 197 So. 649 (1940); Harang v. Gheens Realty Co., 155 La. 68, 98 So. 760 (1924); Bendernagle v. Foret, 145 La. 115, 81 So. 869 (1919).

LEMMON, J., concurs for reasons assigned.

Lead Opinion

In Re Lloyd Toms applying for Certiorari to the Court of Appeal, Second Circuit, Parish of Bienville, No. 14,147, 384 So.2d 518.

Denied.

Concurrence Opinion

LEMMON, Justice,

concurring.

Defendant did not possess in the name of or for another; he simply acknowledged to third parties the name of the party he thought was the record owner, while possessing adversely to that party. Nevertheless, defendant’s possession did not span thirty years, and since his deed transferred only the improvements, he cannot tack on the adverse possession of his ancestor. The result is correct.

On Motion for Reconsideration.

In Re Lloyd Toms, applying for reconsideration of denied writ of September 26, 1980.

Not considered. See Rule IX, Sec. 6 and C.C.P: 2166.