586 So. 2d 569 | La. Ct. App. | 1991
Lead Opinion
In this action, a former husband sought a declaration that a community property settlement conveyed to him all his ex-spouse’s interest in two tracts of property. Plaintiff further requested an order compelling the execution of deeds necessary to perfect his title.
FACTS
Plaintiff, Dewey E. Williams, and defendant, Ann Olive Williams, judicially separated on October 18, 1978. On October 25, 1978, they executed a document that purported to be a full and final partition and division of all community property. Among a list of other items, the agreement conveyed to Mr. Williams:
All the capital stock owned by appearers as property of their marital community of acquets and gains in North Louisiana Well Servicing Company, Inc. and its several divisions, this item including Mrs. Williams’ interest in the businesses of*570 she and Mr. Williams, except for those interests received by her herein, including corporate stock or proprietary interest, corporate, partnership or sole proprietorship.
(Emphasis added). At another point, additional language appeared as follows:
It is agreed by and between the parties that this agreement is made without regard to the technical niceties of recorded ownership, and each of the parties hereto agrees, binds and obligates himself and herself respectively to cooperate with the other to fully perfect record title and ownership to each of the properties allotted to him or her respectively herein and to execute this agreement in good faith according to their mutual intent.
Prior to their legal separation, the parties operated North Louisiana Well Servicing Company, Inc., through two unincorporated divisions doing business as Oil Well Service Company and Arkla Concrete. The couple established these going concerns on two parcels of land located in Springhill, Louisiana and Magnolia, Arkansas, respectively. Although the husband and wife had purchased the immovable property with corporate assets, they held title jointly in their individual capacities.
Ten years after the execution of the property settlement, and in connection with an attempted sale of the tracts, title examiners informed Dewey Williams that the settlement document did not convey record title. After the former wife refused to execute “quitclaim deeds,” the ex-husband instituted this suit.
The parties testified regarding their understanding of the agreement. Mr. Williams believed, relying on the above-mentioned paragraphs, particularly the emphasized portion, that he received title to the two parcels. His ex-wife, of course, disputed that position, but remained irresolute at trial concerning her understanding of the document at the time of its execution. At one point in her testimony, she indicated that both parties completely overlooked the immovable property at issue. However, in another instance, she stated that she knew before execution of the instrument that the Arkansas parcel could not be transferred by the partition.
After trial, the judge ruled against the former husband, finding that the 1978 agreement did not encompass the two parcels at issue. In a written opinion, he reasoned that the document signed by the parties did not evince an act translative of title. Finding the agreement lacking in that respect, the judge additionally stated that the settlement language did not contain ambiguities or an omnibus provision. Thus, the two tracts remained owned in indivisión by the parties. This appeal ensued.
DISCUSSION
The appellant-former husband contends the trial court erred in finding that the agreement did not convey Mrs. Williams’ interest in the parcels at issue.
We disagree with appellant. The clauses relied upon make no reference to immovable property owned by the parties, but concern the transfer of the former wife’s interest in the corporate entity, its divisions and businesses involved. As mentioned previously, with respect to the real estate, the parties held title jointly in an individual capacity.
Obviously, to transfer title, some specific reference to the property is necessary. In general, to be translative of title to real estate, an instrument must contain such a description as to adequately identify the property. Snelling v. Adair, 196 La. 624, 199 So. 782 (1940). On the other hand, as between the parties, an omnibus provision has been deemed sufficient to effectuate a transfer. Williams v. Bowie Lumber Co., 214 La. 750, 38 So.2d 729 (1948); Bean v. Bean, 484 So.2d 246 (La.App. 3d Cir.1986); Dickerson v. Scott, 476 So.2d 524 (La.App. 1st Cir.1985); Major v. Morgan, 408 So.2d 923 (La.App. 1st Cir.1981); Nix v. Nix, 385 So.2d 503 (La.App. 1st Cir.1980); Valvoline Oil Company v. Krauss, 335 So.2d 64 (La.App. 3d Cir.1976). As the trial court found, however, neither a specific nor omnibus description appears in the instrument. Indeed, as concerns any omnibus provision, the attorney for the former wife,
Alternatively, in a second assignment of error, the ex-husband argues that the document is ambiguous. From that premise, he then contends that the testimony disclosed an intent by the parties for him to receive the subject property, and that the settlement agreement should therefore be so reformed.
In interpreting a contract, the common intent of the parties is determinative. LSA-C.C.Art. 2045. But, by whatever formality the document may be executed, when its terminology is clear, explicit and leads to no absurd consequences, no further interpretation may be made in search of intent. LSA-C.C.Art. 2046.
Clearly, a document passed before a notary and two witnesses, as the instant voluntary partition and settlement, constitutes full proof of the agreement. LSA-C.C.Art. 1835; Grant v. Ouachita National Bank, 536 So.2d 647 (La.App. 2d Cir.1988). Thus, testimonial or other evidence is inadmissible to negate or vary its terms, save to show a vice of consent, simulation, or subsequent oral modification. LSA-C.C.Art. 1848; Grant, supra. The former husband did not plead any of these three codal exceptions and the record reveals none existing.
One additional circumstance, an elementary rule as between contracting parties, is that parol evidence of intent is admissible to clarify an ambiguity. See McAteer v. McAteer, 393 So.2d 805 (La.App. 2d Cir.1981). Accord Grant, supra; Texaco v. Newton and Rosa Smith Charitable Trust, 471 So.2d 877 (La.App. 2d Cir.1985), writ denied, 475 So.2d 1104 (La.1985); Bean supra; Rayner v. Butler, 482 So.2d 965 (La.App. 3d Cir.1986).
However, on the issue of ambiguity, we agree with the trial court that the language of the agreement is not ambiguous. Thus, plaintiff could not use parol evidence to vary the provisions of the document, or to somehow create an ambiguity.
Accordingly, the trial court did not err in concluding that the couple’s agreement did not encompass the conveyance of the parcels at issue, and in further refusing to reform the instrument in question.
CONCLUSION
Thus, the judgment of the trial court, declaring that the two tracts continue to be owned in indivisión, is affirmed. All costs are taxed against appellant.
AFFIRMED.
. Plaintiff styled his petition as one for both declaratory judgment and specific performance, without' seeking the two forms of relief as alternatives. Whether a court can order specific performance in a proceeding for declaratory relief is a question apparently unanswered in this circuit. However, because we affirm the trial court’s decision, we specifically pretermit such a consideration.
Concurrence Opinion
concurring.
I reluctantly but respectfully concur in the result. I find that the two clauses of the partition agreement quoted in the opinion create an ambiguity regarding what interests in the parties’ businesses Mr. Williams was to receive as a result of the agreement. However, under the rationale set forth in City Bank and Trust of Shreveport v. Willard Scott, Jr., 575 So.2d 872 (La.App. 2d Cir.1991) decided and handed down by this court also on this date, I conclude that parol evidence is inadmissible to explain the ambiguity. In City Bank and Trust of Shreveport we stated:
This court has noted that there are cases in which parol or' extrinsic evidence may be admitted to aid and identify immovable property described in a written contract to sell. Parol evidence has not been allowed, however, to wholly identify the immovable. Parol has been allowed only where the courts have found that there was “sufficient body” in the initial, written description so as to leave the title to immovable property “resting substantially on writing and not essentially on parol.” Jackson v. Harris, 18 La.App. 484, 136 So. 166, 169 (La.App 2d Cir.1931). (emphasis added)
* * * * * *
The rule in Louisiana then, and now, was stated, citing Kernan v. Baham, 45 La.Ann 799, 13 So. 155 (La.1893). The court noted that the Kernan rule “prevails, with slight modifications, throughout the United States.” [13 So.] p. 168. We shall attempt to paraphrase the rule:*572 To aid and establish identity of a defective or ambiguous description of an immovable property in a written contract, parol evidence is admissible only where the written, but defective, description distinguishes the property from other properties so as to allow the conclusion that the mutual or common intent of the parties to the writing was to deal with the particular property and not another property of the same kind or quantity.
There should be sufficient substance in the written description in question so as to leave the title to the immovable resting substantially on the writing and not on parol.
In City Bank we concluded, based on the above cited authority, that a description in a Real Estate Purchase Contract that read “Auction Property # 137, Vacant Land 21 acres” was too general to serve as a base on which title to an immovable might be identified by extrinsic and parol evidence.
Accordingly, based on City Bank and Trust of Shreveport, and noting that Ann Olive Williams does not agree or admit that her husband was to receive the disputed immovable property in the act of partition, I must conclude that the “description” relied on by plaintiff herein, which never mentions immovable property, real estate or land, is too general to serve as a base on which title to the immovable tracts at issue might be “identified, built up or eked out” by extrinsic and parol evidence.
The result reached in this case is, in my opinion, inequitable. However, as we stated in City Bank and Trust of Shreveport:
[We] are not only constrained ... by an established jurisprudence, but by the possible consequences of such a precedent. The rule that every transfer of immovable property must be in writing was established by the Legislature to prevent the perpetration of fraud. If it should be held that the identity of the immovable subject of a transfer might be wholly showed by extrinsic evidence, it would defeat the purpose of the statute and invite rather than avert fraudulent transactions involving real estate. The enforcement of the rule that there should be sufficient body in the description of the immovable property to leave the title resting substantially on writing and not essentially on parol may work a hardship occasionally, as in the instant case; nevertheless it is clearly our duty to enforce it.
Dissenting Opinion
dissenting.
I must respectfully dissent from the result.
As Judge Hightower so ably points out and supports, there are many cases where “an omnibus provision has been deemed to effectuate a transfer” even of an un- or ill-described immovable property.
Mr. Fish, the attorney who once represented both parties and who drafted for Mrs. Williams, the community settlement contract in question in this appeal, explained that he knew Mr. and Mrs. Williams had loosely operated their businesses and had acquired both business and non-business immovable and movable properties in Louisiana and in Arkansas in names that were legal non-entities. Explaining the two provisions in the settlement contract, he said:
I did understand that there might be business properties that were not titled in the business ... and it didn’t make any difference whether it was in a family owned corporation or partnership or whatever and that was the purpose of the language, one of the purposes of the language, that without regard to the technical niceties of recorded ownership that they were — that Ann (Mrs. Williams) was going to get half the minerals and it — and if the corporation owned the minerals and Dewey (Williams) was the stockholder of the corporation and the owner, he was obligated to see that she did. * * *
I would think [that would also apply in a similar manner to the situation involving Dewey Williams getting the businesses in this case] ... I understood that there were some titles that were taken in— informally and so forth, thinking particularly about the D & A partnership or the D & A trade name and the Oil Well*573 Service name and how much of that had to do with land and how much of it had to do with business, generally, I was not aware * * *
Mr. Fish explained that he did not put a general omnibus provision in the contract because he did not want Mrs. Williams to convey her interest in any overlooked property, “like, if my client ... can find a bank account ten years later, I want her to get half of it, or if I find out for the first time that he squirreled away anything anywhere, I want to preserve her rights to getting it but that has to do with really property that she didn’t even know existed.”
Do you recall any property that the parties knew existed that was intended to be not divided by the community property settlement?
[Mr. Fish] No Sir.
* * * Did you put some language in the community property settlement to the effect that whatever property was involved in the business would be covered?
[Mr. Fish] That’s correct_ that was my thought ... I thought there might be problems generally just because of the way they had done business, I mean having non-legal entities involved in business ... that’s the purpose of the language [about the technical niceties of recorded ownership] — and the whole idea was that if anybody needs a subsequent deed it would be made ... — in accordance with the intention [of the] parties at — the time the act was subscribed.
And there’s ... the agreement to that effect?
[Mr. Fish] Well certainly and that’s the purpose of it.
Based on this record, the writings exchanged between the parties, the business records, the settlement contract itself, and the testimony of Mr. Fish, I have no difficulty concluding that Mrs. Williams was well aware that the corporation and other family businesses had occupied and improved the two immovable tracts in question for a number of years and that these tracts were “business” properties “without regard to the technical niceties of recorded ownership,” which were to be conveyed to Mr. Williams. In the settlement, Mrs. Williams was to receive certain properties, movable and immovable, that were not “business” properties, and she was to give up or to convey to Mr. Williams all of her interests in all properties of the “businesses,” including, as the contract says, her corporate stock or proprietary interest, corporate, partnership or sole proprietorship [interest], without regard to the technical niceties of recorded ownership
I would agree, in accordance with the explanation of Mr. Fish, that he wrote the contract so that it would not convey to Mr. Williams any property that he had “squirreled away” or any property that either had overlooked.
I conclude, however, that the contract, as Mr. Fish explained, was intended to convey to Mr. Williams everything connected with the businesses, including the two immovable properties those businesses had long occupied and improved, without regard to the technical niceties of recorded ownership. To this extent the contract contains an omnibus provision, limited, however, to the extent that Mrs. Williams could enforce her right to receive mineral rights under undescribed immovable properties and that Mr. Williams could enforce his right to receive undescribed immovable properties [the two tracts in question] long occupied and improved by the businesses. In this critical area, I must disagree with my brethren.
The cases which recognize the effect of an omnibus provision in a contract that affects un- or ill-described immovable property seem to be consistent in two or more respects. The parties are or were, in some way, co-owners of the immovable and, more often than not, one co-owner, after the writing containing the un- or ill-described immovable, goes into possession of the immovable. Thereafter one of the parties seeks to perfect, or to attack, the record title to the un- or ill-described immovable. See Valvoline Oil Company v. Krauss, 335 So.2d 64 (La.App. 3d Cir.1976), and cases cited and discussed therein.
I must respectfully dissent in this appeal. I would reverse the trial court, uphold the limited or business omnibus provision, and render judgment declaring that the parties effectively intended that Mrs. Williams would convey title to the two business tracts of immovable property to Mr. Williams. The trial court’s implicit conclusion that Mr. and Mrs. Williams intended to remain as co-owners, and did not intend to deal with those tracts in the contract, is not supported by the record and is clearly wrong in my humble opinion.
I attach the community property settlement as an appendix to this dissent.
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STATE OF LOUISIANA
PARISH OF WEBSTER
PARTITION OF COMMUNITY PROPERTY AND SETTLEMENT OF CLAIMS
BEFORE ME, the undersigned Notary Public, and in the presence of the undersigned competent witnesses, personally came and appeared DEWEY E. WILLIAMS, whose mailing address is P.0. Box 471, Springhill, Louisiana 71075, hereinafter referred to as "Mr. Williams," and ANN OLIVE WILLIAMS, whose mailing address is P.O. Box 516, Springhill, Louisiana 71075, hereinafter referred to as "Mrs. Williams," both domiciled in Webster Parish, Louisiana, who declared that they were separated by judgment of the Twenty-Sixth Judicial District Court in and for Webster Parish, Louisiana, in proceedings entitled "Ann Olive Williams vs. Dewey E. Williams," Suit No. 37,532, the judgment decreeing a separation "a mensa et thoro" between them having been dated October 18, 1978.
Appearers, Mr. and Mrs. Williams, do by these presents make and enter into this agreement in full and final partition and
division of all of the property of their marital community of acquets and gains and in full and final settlement of their claims, each against the other.
FOR AND IN CONSIDERATION of the properties received by him herein, and of the premises herein contained in their entirety,- ■ Mr. Williams does by these presents exchange, transfer, set-over, convey and deliver unto Mrs. Williams, here present and accepting the same for herself, her heirs, successors and assigns, all of his right, title and interest in and to the following described property, to-wit:
1. Certificates of Deposit in Springhill Bank 6 Trust Company in the name of Ann Olive Williams, identified as follows:
a. Certificate No. 2069 dated October 3, 1978, in the principal sum of $100,000.00.
b. Certificate No. 2070 dated October 3, 1978, in the principal sura of $100,000.00.
c. Certificate No. 1866 dated June 29, 1978, in the principal sum of $50,000.00,
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2. Begin at a railroad spike set at the Southwest corner of the Southwest Quarter of Southeast Quarter, Section 3, Township 23 North, Range 11 West, Springhill, Webster Parish, Louisiana, thence run South 89 degrees 27 minutes East 210 feet; thence run North 00 degrees 09 minutes East 660 feet; thence run North 89 degrees 27 minutes West 210 feet; thence run North 220 feet; thence run North 89 degrees 27 minutes West 210 feet; thence run South 00 degrees 09 minutes West 670 feet; thence run North 89 degrees 27 minutes West 35 feet; thence run South 00 degrees 09 minutes West 307.6 feet to the North line of Louisiana State Highway No. 157, thence run in a Northeasterly direction along the North line of Louisiana State Highway No. 157 to a point due South of the point of beginning; thence run North to the point of beginning, together with all improvements located thereon and rights thereto belonging, as well as all furnishings, fixtures, equipment, appurtenances, everything of value on the premises except for those items hereinafter particularly described, received by Hr. Williams in this agreement, the said property being located in the Southwest Quarter of Southeast Quarter and Southeast Quarter of Southwest Quarter, Section 3, and the Northeast Quarter of Northeast Quarter, Section 10, all in Township 23 North, Range 11 West, Webster Parish, Louisiana, it being agreed and understood that a portion of the property herein described is located in the Highway and a street, and that this description includes property previously conveyed by Mr. Williams to Mrs. Williams; which conveyance is expressly ratified and confirmed '' herein and is transferred for value, the receipt of which is expressly acknowledged, this being a part of the overall property settlement of appearers. Mrs. Williams assumes all mortgage indebtedness affecting the said property, approximately $30,000.00.
3. All of the diamonds referred to and identified as Mrs. Williams' personal diamonds, they being all of the diamonds now in her possession or under her control, and being all of the diamonds of the parties except for those that Mr. Williams receives, his personal diamonds which he has in his personal control.
4. A Mark V Lincoln automobile titled in the name of Kenneth Williams, Mr. Williams acknowledging that he has no right, title or interest therein or thereto.
5. One-half of all of the oil, gas and other minerals and rights relating thereto, including'production owned by Mr. and Mrs. Williams directly or indirectly as well as oil, gas or other minerals and rights relating thereto owned by any corporation in which appearers own stock, it being agreed and understood that Mrs. Williams will receive without further cost or consideration from each corporation one-half of its entire oil, gas and other minerals interest. This item includes one-half the benefits of all contracts or things of value pertaining to oil, gas or hydrocarbons, or their production in the broadest sense, and
7. All stock owned by Dewey E. Williams and/or Ann Olive Williams in Springhill Bank l Trust Company, all Springhill Bank & Trust Company stock.
8. East 6 acres of the South 10 acres of the Southwest Quarter of Northeast Quarter, Section 5, Township 22 North, Range 13 West, Bossier Parish, Louisiana, together with all improvements located thereon and rights thereto belonging.
9. $ oil money placed in the Springhill Bank & Trust Company "D & A Construction Company" account.
10. The DeSoto automobiles owned by appearers, one green and one black.
11. The sum of $7,500.00, representing one-half of the interest paid on a certificate of deposit deposited in the Concrete Products account.
12. All policies of life insurance on the life of Dewey E. Williams of which Ann Olive Williams is registered as the owner.
13. One-half interest in appearer's Pine Bluff, Arkansas, property, the interest of both appearers in the said lands being one-half, with Mrs. Williams receiving a one-fourth interest in the property in its entirety, more particularly described as Begin 60 feet South and 533.8 feet West of the Northeast Corner of Northeast Quarter, Section 24, Township 6 South, Range '9 West, Jefferson County, Arkansas, thence run South 44 degrees West 971.5 feet along the Southerly boundary line of Woodlawn Addition to the Southwesterly corner of SD Addition; thence run South 31 degrees 50 minutes West 400 feet; thence'run South 52 degrees 15 minutes East 331.8 feet; thence run North 31 degrees 50 minutes
15. 3 1/3 acres of land, more or less, located in the vicinity of Canfield, Arkansas, which will be conveyed by Mr. Williams to Mrs. Williams by separate deed.
As a further part of the consideration herefor, Mrs.
Williams will receive pay or compensation of $5,000.00 per month until December 31, 1978, and will be retained on the payroll of Mr. Williams or one of his companies for this-amount, and the Travelers Hospitalization insurance coverage presently protecting Mrs. Williams shall be maintained in full force and effect for her benefit until December 31,
1978. Mrs. Williams, who has been active in the management of the business affairs of appearers, will continue to cooperate with Mr. Williams in the orderly transfer of the business to him and will perform functions of the nature heretofore performed by her, however, she is not required to go to the place of business for this purpose, and will do so only with the mutual consent of both parties.
FOR AND IN CONSIDERATION of the properties received by her herein and of the premises herein contained in their entirety, Mrs. Williams does by these presents exchange, transfer, set-over, convey and deliver unto Mr. Williams, here present and accepting the same for himself, his heirs, successors and assigns, all of
2. All of Mrs. Williams' right, title and interest in and to Concrete Products of North Caddo, Inc.
3. All assets of D s A Proprietorship, except those received by Mrs. Williams as set forth hereinabove, D s A Proprietorship being a name under which appearers did proprietorship business.
4. A 1939 Ford automobile, with battery charger.
5. The following items on the premises received by Mrs. Williams:
1 Browning 30-06 .
1 Browning 16 !
1 Remington 410 1 Winchester 30-06 1 Texas Ranger Set
Assorted shotguns and shells for them, except shells for Mrs. Williams' guns.
1 44 Mag.
1 Charles Daly
1 Browning sterling silver 9 MM 1 Double barrell Assorted Colt Commerative sets 1 Winchester 20 gauge
1 set antique Watches, approximately 95
2 Remington Shotguns 1 Black suitcase
1 Briefcase.
6. Begin at the Southeast corner of the Southeast Quarter of Northwest Quarter, said Southeast Quarter of Northwest Quarter also known as Lot 3, Section 2,. . Township 23 North, Range 11 West, Webster Parish,'. . Louisiana, thence run South 89 degrees 50 minutes West 853.54 feet to the point of' beginning of the property herein described; thence continue South 89 degrees 50 minutes West 1,068.86 feet; thence run North 0 degrees 10 minutes West 700 feet to the South line of the State Line Road (Montgomery- Street); thence run North 89 degrees 41 minutes East along the South line of the said Road 1,068.86 feet .to a point bearing North 0 degrees 10 minutes West from the point of beginning; thence run South 0 degrees 10 minutes East 702.75 feet to the point of beginning, containing 17.21 acres, more, or less,
8. One-half of the Pine Bluff, Arkansas, property, one-half of which was reqeived by Mrs. Williams, more particularly described in Item No. 13 hereinabove set forth.
9. A Ford Walden Tractor.
It is agreed by and between the parties that this agreement .is made without regard to the technical niceties of recorded ownership, and each of the parties hereto agrees, binds and obligates himself and herself respectively to "" cooperate with the other to fully perfect record title and ownership to each of the properties allotted to him .or her respectively herein and to execute this agreement in good faith according to their mutual intent.
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Williams waives any and all claims, demands or rights that she has or may have to alimony, past, present or future; and as a further part of the consideration herefor, Mr. Williams agress, binds and obligates himself to pay the cost of having Mr. Ray Cook, Certified Public Accountant, prepare all tax returns of Mrs. Williams for the calendar year 1978.
Mrs. Williams forgives all of her right, title, interest or claims in and to sums payable by any of the businesses to Mr. and/or Mrs. Williams, whether or not evidenced by one or more promissory notes and all corporation or other business entities forgive all indebtedness due by Mrs. Williams directly or indirectly.
Appearers will pay the fee of his or her attorney respectively.
Mr. Williams agrees to pay all debts and claims of appearers except for those assumed by Mrs. Williams herein and except for her personal'bills for such things as utility charges and the cost of running her household.
Mr. Williams will take over the operation of the businesses at 7:00 o'clock A.M. on October 26, 1978. The parties have, agreed on the items that are to be removed from the business premises by Mrs. Williams as her property. She shall have a reasonable time in which to remove them.
Appearers each acknowledge that he and she respectively is well satisfied with this partition and settlement of their claims, each against the other, and with the subscription hereof, neither is indebted to the other in any manner for any cause, nor does either have any claim or right against the other, except for those herein set forth.
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Rehearing
on rehearing:
On rehearing granted to reconsider the law to be applied to the factual circumstances which are fully set forth in the prior opinions by each of the judges on the three-judge appellate panel, we reverse and render judgment for Mr. Williams. The facts will not be repeated except where necessary to explain the disposition by this five-judge rehearing panel.
In City Bank and Trust v. Scott, 575 So.2d 872 (La.App. 2d Cir.1991), the bank sought to enforce a contract to sell “vacant land, 21 acres, Gilliam, Louisiana.” We held that parol evidence was not admissible to supply the description of the land because the law required such a contract to be in writing (CC Art. 2462) and precluded proof of the contract by testimony (CC Art. 1832). We noted, however, that even where a contract to sell is at issue, parol evidence is sometimes admissible to identify the property that is ill-described in the contract if the resulting title can be said to rest “substantially on the writing and not on parol.” 575 So.2d at p. 874.
An omnibus provision in a deed, or a contract to sell, is sufficient to effectively transfer an immovable between the parties, while not sufficient to affect third persons. Williams v. Bowie Lumber Co., 214 La. 750, 38 So.2d 729 (1948). The description in the contract to sell in City Bank, supra, was not an omnibus provision.
In this appeal, we are concerned only with whether the partition of the former community between Mr. and Mrs. Williams contains a limited omnibus provision sufficient to allow parol evidence to prove the intent of the parties regarding disposition of known co-owned immovable properties.
Our original opinions cited the several cases where an omnibus provision between partitioned of property that includes immovable property has been deemed to effectuate a transfer of un- or ill-described immovable property. Each case, of course, must rest on its own facts. The principle is upheld in cases involving partitioning co-owners even though no reference is made to immovable property or the immovable is not described sufficiently to fulfill the requirements for a sale or a contract to sell an immovable. See Valvoline Oil Company v. Krauss, 335 So.2d 64 (La.App. 3d Cir.1976); Bean v. Bean, 484 So.2d 246 (La.App. 3d Cir.1986). In Bean, e.g., the former husband and wife-partitioners simply dealt with “claims” to “marital property” without mentioning mineral interests (immovable property in Louisiana). The reference to claims to marital property, while not a description of any sort, was there held sufficient as an omnibus provision to divest the wife of mineral rights formerly owned by the community in Louisiana. 484 So.2d at p. 249.
For the reasons Attorney Fish explained, which are set forth in the dissent to the original opinion, the contract he drew to partition the former Williams community was intended to convey to Mr. Williams everything connected with the businesses, including the two immovable properties those businesses had long occupied and improved, and continued to occupy and improve after the partition, without regard to the technical niceties of record ownership. To this extent the contract in question contains a limited omnibus provision.
Mrs. Williams was protected by the partition drawn by Attorney Fish to the extent that she could enforce her right to receive or recover mineral rights under unde-scribed co-owned properties, even properties she did not know about. Conversely, Mr. Williams, in our opinion, is allowed to enforce his right to receive or recover un-described co-owned immovable business properties (the two undescribed tracts in question) long occupied and improved by the community businesses, on which tracts Mrs. Williams actively worked during the marriage.
DECREE
For the reasons expressed herein, as amplified by the dissent to the original opinion
TRACT A
That part of the Northeast Quarter of the Northeast Quarter of the Northwest Quarter (NE/4 of NE/4 of NW/4) of Section 10, Township 23 North, Range 11 West, Webster Parish, Louisiana, lying South of the Springhill-Plain Dealing Highway, together with all improvements thereon; and
TRACT B
Three acres in the NE/4 of NW/4 of Section 24, Township 17 South, Range 21 West, Columbia County, Arkansas, described as follows:
Commencing at the Southeast Corner of the NE/4 of NW/4 of Section 24, Township 17 South, Range 21 West, thence run South 89°54' West 261.40 feet, thence run North 0°18' West 431.31 feet, thence run North 83°40' East 231.3 feet, thence run North 10°20' West 50 feet, thence run South 83°40' West 232.11 feet, thence run South 73°40' West 144 feet, thence run South 83°40' West 424.08 feet to the point of beginning: thence run North 83°40' East 385 feet, thence North 0°26' West 340 feet, thence South 83°40' West 385 feet, thence South 0°26' East 340 feet to the point of beginning, containing three (3) acres, more or less; and
(2) intended to, and did, obligate Ann Olive Williams to cooperate with Dewey E. Williams “to fully perfect record title and ownership to each of the properties allotted to him ... herein,” including Tract A and Tract B, above described.
Costs are assessed to Mrs. Williams.
REVERSED AND RENDERED.
NORRIS, J., dissents for reasons originally assigned.
HIGHTOWER, J., dissents for reasons assigned in original opinion.