92 So. 400 | La. | 1922
This suit was instituted to recover a tract of land, forming a part of defendant’s mill site, in the parish of Allen.
It appears that Thomas B. Welch, the husband of Mrs. Ludonia Welch, one of' the plaintiffs herein, and father and grandfather of the remaining plaintiffs, entered as a homestead 160 acres of land. The land in contest herein formed a part of that entry. All of the land included in the entry was patented to the New Orleans Pacific Railway Company on January 15, 1891. Welch contested the claim of that company, and on May 3, 1895, the contest was decided in his favor, and demand was made by the General Land Office at Washington on the company to reconvey the land. On November 5, 1896, over á year and a balf after the decision of that contest, the land office, at New Orleans, issued to Welch a final certificate, and on June 8, 1900, the New Orleans Pacific Railway Company reconveyed to the government that portion of the land in contest herein. In June, 1901, Welch and his wife conveyed the entire tract to two of their sons, Archie and Jason, the consideration being that Archie and Jason would support them during the remainder of their lives. This consideration is shown on the face of the deed. Weich died in 1901. In 1905 Archie and Jason sold the land, and it is through them, by a regular chain of conveyances, that the defendant claims title.
After the issuance of the final receipt, the matter seems to have remained in abeyance .until the latter part of 1914, when the plaintiffs wrote the General Land Office in reference to it. Plaintiffs were notified that the New Orleans Pacific Railway Company had reconveyed to the government only a part of the tract, and that, so long as there was an outstanding patent to the rest, no other patent would issue, as the local office had erroneously permitted the entry. They were also notified that, if they cared to so elect, they might relinquish their claim to that part
Plaintiffs attack, as being null and void, the transfer of the land to Archie and Jason, for the consideration mentioned, on the ground that, after the execution of the act, Welch and his wife did not possess sufficient property for their maintenance. Against this attack, defendant pleads the prescriptions of one and five years.
We therefore conclude that, as 10 years did not elapse between the relinquishment and the issuance of the patent and the filing of suit, or the service of citation herein, the prescription of 10 years must be overruled.
Defendant also filed a reconventional demand for improvements, in the event of eviction, and also called in warranty its vendors. There seems to be no complaint as to the amount allowed for improvements by the lower court, nor as to its disposition of the calls in warranty. We, however, find no error in the judgment in those respects, and, in fact, none at all.
For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be affirmed; appellants to pay the costs.