105 So. 728 | La. | 1925
Augustus C. McDougald, or McDougale, died intestate in Union parish on December 23, 1902, leaving a widow in community, to wit, Mrs. Martha A. McDougald, and seven minor children, viz: (1) Miss Addie McDougald, now wife of R.L. Snell; (2) Miss Pearl McDougald, now wife of H.P. (Mullen) Bowen; (3) Charles Henry McDougald; (4) Miss J. Myrtle (Jimmie) McDougald, now wife of Perry Brasher, or Brasier; (5) Miss Laskie Vaughn (Larkin) McDougald, now wife of Ollie Butler; (6) Patrick Horace McDougald; and (7) Augustus Clayton McDougald.
At his death he left inter alia a certain tract of 270 acres of timbered lands in said parish, all being in township 21 north, range 3 east, to wit:
S. 3/4 of N.W. 1/4 of S.W. 1/4 of Sec. 22, say *606 30 acres; S.W. 1/4 of S.W. 1/4 of Sec. 22, say 40 acres; N.W. 1/4 of N.W. 1/4 of Sec. 27, say 40 acres; N. 1/2 of N.E. 1/4 of Sec. 28, say 80 acres; S. 1/2 of S.E. 1/4 of Sec. 21, say 80 acres.
This deed was executed on a printed form, and contained the following clause, to wit:
"The party of the second part (Union Sawmill Company) shall cut and remove said timber within a period of 12 years from the date hereof; or, if it shall not do so, it shall be responsible for and pay to the first party (Mrs. McDougald and her two daughters) the full amount of taxes assessed against said lands and timber after the expiration of said period of 12 years from this date until such time as said timber is removed and possession returned to said first party."
Accordingly, on July 29th, Mrs. McDougald executed a new deed, in which she declared that, "acting individually and as tutrix of *607 the minors of A.C. McDougale, deceased * * * (and together with said minors being a 12/14 interest holder in and to the pine timber (aforesaid) * * *," she sold said pine timber to the Union Sawmill Company aforesaid "for and in consideration of $1,540, our proportion of the whole value of $1,800, receipt of which is now acknowledged"; which deed recites that "the party of the second part (Union Sawmill Company) shall have 12 years to remove the timber," but contains no "extension clause" such as is found in the deed of March 4th and quoted above.
And thereupon the purchaser delivered to the vendors a draft for $1,800, dated March 4, 1909, and payable to the order of Mrs. M.A. McDougale and children; which draft, after being duly indorsed by Mrs. McDougale individually, and as tutrix, and by Mrs. Snell and Mrs. Bowen, was duly collected.
The object of the suit is to cancel and erase from the parish records the deed of March 4, 1909, as a cloud upon their title to the timber on the lands aforesaid.
They claim that said deed was obtained from their mother, and from Mrs. Snell and Mrs. Bowen, by fraud and misrepresentations, and that in any event, in view of the later deed of July 29th, the defendants are estopped from claiming anything against their mother's share under the earlier deed of March 4th.
If a party can read, it behooves him to examine an instrument before signing it; and if he cannot read, it behooves him to have the instrument read to him and listen attentively whilst this is being done. Murphy v. Hussey,
One of the parties to that deed (Mrs. McDougald) did in fact withdraw therefrom by making a new deed to the timber containing different provisions before receiving payment. And it is immaterial whether these changes were made inadvertently or deliberately; for the fact remains that the changes were made, that they were made at a time when she had a right to make them at her pleasure, and that the price for the timber was paid on the deed as redrafted, and only after it had been so redrafted.
Our conclusion is, as was also the conclusion of the trial judge, that the last deed, the deed of July 29th, was the only deed which was binding on both parties, and therefore the only deed by which to measure the rights of the parties upon the timber conveyed. And according to the terms of that deed the Union Sawmill Company had only *609 12 years to remove the timber, and no right to an extension.
This, of course, does not apply to Mrs. Snell and Mrs. Bowen, who accepted their portion of the price on the deed of March 4th without any modification thereof whatever.