132 So. 499 | La. | 1930
Lead Opinion
Plaintiff brings this action for slander of title against defendant; and the latter, after excepting to the right of plaintiff to maintain the action, then sets up title in itself. The lands involved are: (a) Lot 5 of section 77, fractional section 78, and east half of section 79; and (b) section 84, and fractional section 102 — all in township 14 south of range 23 east.
We think he was. At that time one Brady, or his assigns, were in actual possession of the lands, trapping therein, under a lease from plaintiff. It is true that prior to the time when Brady leased from plaintiff, he had taken a lease thereon from defendant or its author in title; but the evidence, whilst confusing, nevertheless satisfies us that Brady did not get actual possession of the lands until after he obtained his lease from plaintiff, and now holds possession under the latter.
The next exception to plaintiff's right to maintain this action is that he does not own the entirety of the property, but only 65 per cent. thereof, the other 35 per cent. thereof, though standing in his name, being held by him only in trust, as it were, for other parties.
We see no merit in this. Plaintiff has undoubtedly the right to protect his own interest against the alleged unwarranted claims of *916 defendant, and in a like manner to protect also the interest of those for whose account he holds title.
We therefore think that plaintiff has a good and valid title to the lands in sections 77, 78, and 79; and that defendant has no such title thereto.
The only title which plaintiff claims thereto is by the prescription of ten years under a title to its author the Jefferson Land Company from one Geo. H.T. Shaw, who had no valid title thereto, and sold to the Jefferson Land Company only "all my (his) right, title, interest and ownership of whatever nature" in the land (Tr. 117, 119).
In Thomas v. Kean, 10 Rob. 80, it was held by this court the sale of only the right, title, and interest of the vendor in and to the land is not such a title to the land as will be the basis of the prescription of ten years, citing Eastman v. Beiller, 3 Rob. 220. *917
The reason for this is apparent. Such a sale does not purport to convey the property itself, but only such interest as the vendor may have therein; which may be all or nothing; and this such title conveys on its face notice that there may be outstanding interests in others. Victoria Lumber Co. v. Dawson,
The doctrine that such a title cannot be the basis of the ten years' prescription was again approved in Avery v. Allain, 11 Rob. 436, and Hughey v. Barrow, 4 La. Ann. 248. The same doctrine was mentioned, but neither approved nor disapproved, because not appropriate to the case, in Land Development Co. v. Schulz,
And the fact remains that we find no instance, and none has been brought to our attention, in which a sale of only the right, title, and interest of the vendor in the property has been held sufficient for the basis of the prescription of ten years.
O'NIELL, C.J., dissents from the ruling that a sale of "all of one's right, title and interest and ownership of whatsoever nature" cannot be the basis of prescription of ten years.
Addendum
This case and the case No. 30209 of our docket, entitled Robert J. Perkins v. Mrs. Mary J. Wisner et al.,
The two cases present the same determinative issue, i.e., the ten-year prescription acquirendi causa. We have found that the later and better reasoned decisions of this court hold that a quitclaim deed is sufficient basis for the maintenance of the ten years' prescription acquirendi causa, if accompanied by actual possession of the property for that length of time after the recordation of the deed.
We have found, for the reasons stated in No. 30209, Robert J. Perkins v. Mrs. Mary J. Wisner et al.,
The opinion in No. 30209, Robert J. Perkins v. Mrs. Mary J. Wisner et al.,
Inasmuch as our original reasons for judgment are not adhered to in this opinion, the right is reserved to the plaintiff to apply for a rehearing.
ST. PAUL, J., concurs in the decree.