60 So. 629 | La. | 1911
Plaintiffs, alleged owners of property conveyed to three of them by the heirs of Thomas Green Davidson and his first wife, Frances E. George, instituted this action for tracts of land described in their petition. These heirs are Emma E., widow of George Austin, Annie M., wife of Ernest Nicaud, and Frances L., wife of Trezevant. The date of the deed of transfer is November 9, 1898.
Thomas Green Davidson was a well-known citizen of this state, a lawyer in active practice, a member of Congress for many years. He was twice married. His first wife died in the ’60’s. They had five children; one of the number died childless, the other died before his father, leaving a son, who died recently. He was not a party to this suit.
It is averred that Mrs. Austin, Mrs. Trezevant, and Mrs. Nicaud, who transferred their right of inheritance, accepted unconditionally the estate of the mother and under the benefit of inventory the estate of their father.
Nears after the death of his wife, in 1869, Davidson contracted a second marriage with Josephine H. Kille, widow of James P. Elmore. She was the mother of a son, issue of her prior marriage with Elmore. There were two children born of the marriage with Davidson. The only parties who transferred a right of inheritance are the three daughters before named. They accepted the succession of their father. The other children did not join in transferring an asserted inherited right; on the contrary, they oppose plaintiffs’ claim, based entirely on that right transferred as before mentioned.
In a marriage contract between Davidson and the wife of his second marriage, it was provided that there would be no community ■between the husband and wife. This is mentioned only to add that there was only one community concerned; i. e., the community existing between Davidson and his first wife.
Mrs. Josephine Davidson, the widow, still survives her late husband, who died in 1883.
Plaintiffs alleged and urged that Davidson, the father, was absolutely without right to sell the one-half of the community property.
We are informed by the record that there is no record that mortuary proceedings were ever instituted in matter of the estate of the first Mrs. Davidson, and no inventory ever made.
Shortly after the death of Thomas Green Davidson, his estate was opened. His second wife and widow petitioned for the opening of the succession. She did nothing further than merely open the estate.
In 1884 one of the heirs, Mrs. Emma Austin, daughter of the first marriage, applied for the administration. She was appointed administratrix, had an inventory of the property of the estate made, but did not include therein the property now claimed by plaintiffs; she had at least a good portion of the property of the estate sold, but did not for an instant seek to sell the property now in dispute. It does not seem to have been considered as part of the Davidson succession.
The argument of learned counsel at this point is that the fact that Mrs. Emma Austin, the administratrix, did not have the property credited to the estate on the inventory, after she had applied for the administration, should not be prejudicial to her interests; that she was young at the date of her mother’s death, inexperienced, without ability to manage an estate, and ought not to be held responsible for not having the property properly entered on the inventory; and that no presumption should be considered as arising because of her failure to have the property inventoried. None the less, this, failure on her part in having had an inventory made adds force to defendants’ averment that the property was not owned by the estate.
Going back in order to give consideration to the history of the title of March 26, 1875, it is stated by defendants and warrantors that Davidson transferred the property in dispute, at least a part of it, to Dr. George Colmer; that this act of March 26, 1875, was destroyed in the fire which burnt down the courthouse in Livingston parish in the latter part of the year 1875. In an act dated in 1877, reference is made to this sale for the purpose of reinstating the destroyed deed of 1875. Full reference is made to the deed of 1875 in the act of 1877. Copying the words of the act, the following are the recitals of both acts as shown by the declaration in the act of 1877:
“Thomas Green Davidson sold and warranted the title to George Colmer to 1,230 acres of land near Bayou Barbary in Livingston parish, known as the Denham tracts, tracts bought by vendor from the late Levi Spiller.”
It is stated in the deed that George Colmer returned to Davidson his said vendor’s note as part consideration of the conveyance from Davidson to Colmer.
Davidson stipulated that he would have a right to redeem the whole or part of the land at any time during his life.
The foregoing acts were under private signature, signed by two witnesses; to the act of 1877 there is appended a written declaration, signed by the parties and witnesses, in which they declared that the purpose of the act of 1877 was to ratify the act of 1875 and to restore it in full force on the public records of the parish.
Plaintiffs’ contention is that the act was not translative of property; that it was private and never authenticated, an absolute nullity in fact, of not the least importance in any respect.
Defendant excepted to plaintiffs’ action on the ground that plaintiffs had no right of
The exception was referred to the merits.
Thereafter an answer was filed pleading a general denial and claiming the ownership of the property.
In the answer defendant denies that Mrs. Austin, Mrs. Trezevant, and Mrs. Nicaud had title to the property claimed by plaintiffs when they passed - the act of transfer on the 10th of November, 1888. In the act of transfer to Sehultze, the plaintiff declared that they conveyed their hereditary rights, •title, and interest in and to the property of the late Mrs. Frances M. George, wife of T. G. Davidson: also all their rights, title, and interest of every kind and description in and to all lands left by their late mother. They transferred all of their property ; Mrs. Nicaud and Mrs. -Trezevant included a clause in the deed reserving all the property in their possession which they had received from their father, the late T. G. Davidson.
In addition, the other heir, Mrs. Emma Austin, sold a number of tracts of land to plaintiffs received by her from the succession of her late father. There is a special declaration that these tracts came from her father’s estate in settlement of her claim inherited from her mother.- The land last referred to — i. e., lands sold by Mrs. Austin to plaintiff — is fully described in the deed to plaintiffs and identified as lands received from Davidson’s succession.
Defendant, the Frost-Johnson Lumber Company, in its answer urged a number of grounds; among them that the heirs just named are estopped from attacking the title to the property, that they are bound by the act of Davidson, "their father, and are bound to defend the sales and dispositions made of the property by him. Defendant further alleged that it -bought the property from C. D. Frost, Johnson, and N. W. McLeoid, with full warranty, and that these parties (just named) bought from James J. Manson about nine years before this suit was instituted.
James J. Manson, at the instance of defendant, was made a party to the suit as warrantor. He alleged in his answer to the call in warranty that he became the owner of the property by purchase from Dr. James P. Elmore and from Mrs. Settoon, who was Kate Colmer Davidson, and Mrs. Marion Wallace Davidson on December 9,1901.
These last-named persons in turn were made warrantors. They answered at some length. The children of the second marriage of T. G. Davidson, also Dr. Elmore, stepson of T. G. Davidson, offspring of the first marriage of Mrs. Davidson with Elmore, denied that plaintiff or his authors in title, Mrs. Austin, Mrs. Trezevant, and Mrs. Nicaud, had any right to the property. They invoked the different acts passed at different times. They pleaded the 5, 10, and 30 years’ prescription.
The heirs just named as warrantors held the property as owners under a donation to them by George Coliner in the deed of donation ; these warrantors urged that the lands donated to them are the Denham tracts of lands, the same claimed by plaintiffs, which he (the donor) acquired from T. G. Davidson on March 25, 1875, and confirmed by an act in 1877, signed to supply document destroyed by fire. This act is in authentic form and fully reinstates prior acts of transfer. It is dated July 30, 1878.
We will state at this time that the act last above mentioned was signed by T. G. Davidson acting for his minor children of his second marriage. These children have fully ratified the act of their father, who signed for them. At all times after their majority they ratified their father’s act.
This act was recorded in the year 1895. It was binding between the parties from the first, and binding as to the third persons,
The questions relating to the succession of Thomas Green Davidson will be the first considered for decision.
One of the objections of plaintiff in argument is that the act contained a right of redemption, and for that reason the act is null. The donation, we have stated, was not gratuitous; it had served to pay a claim which we consider in the light of a sale. Until a tender of this amount, plaintiffs could not exercise the right of redemption, and the act was a complete security for the sum. It is not possible to reinstate the condition to what it was without returning the amount received; for this reason it is now a sale and nothing else.
The late Mr. Davidson disposed of some of the property of the community existing between him and his first wife; he treated the property as his own; transferred it until it reached the possession of third persons. To all of this these heirs did not object. The estoppel pleaded applies to these heirs.
This in the main brings our views to a close regarding the succession of Thomas Green Davidson.
We will now take up the succession of the late Mrs. Thomas Green Davidson.
An old colored servant testified to a limited extent in regard to this settlement.
As to these last-named heirs (Mrs. Austin and Mrs. Trezevant), they also are concluded, although the evidence is not as direct as to them.
We have noted that the property had passed from Davidson to his friend and neighbor, Dr. Colmer; it had been property of the community disposed of over 30 years ago. These last-named heirs also received lands from the estate of their father, and thereafter acquiesced in that which had been done over 30 years ago. In addition, these heirs never accepted the succession of their mother except by the effect of the declaration made by them in the act of transfer to plaintiff.
This court held, in the Succession of Waters, 12 La. Ann. 97, that the heir who has permitted 30 years to elapse without having done any act showing the intention to accept the succession is barred by prescription from any rights as heir.
There is no evidence showing that Davidson kept possession of the property or any evidence showing that these heirs, in assuming to transfer their asserted inheritance, transferred the lands to defendant. They only transferred their asserted right to succession and did not in the transfer allude ever to any particular land; lands must be' described or identified in some way at least in transferring them.
There are other points of minor importance. We have considered them all, and, after considerable deliberation, have arrived at the conclusion that these have been settled with, and, if not settled with, that their claim is barred by prescription.
It is therefore ordered, adjudged, and decreed that the judgment appealed from is affirmed.