Suthon v. Viguerie

PRO VO STY, J. Alleging that he is owner of an undivided half of that part of lot 5, section 30, township 13 S., range 10 E., north of Bayou Grue, parish of St. Mary, and that defendant is owner of the other undivided half, plaintiff prays for a partition in kind. Plaintiff traces his title, as follows: He acquired from Wm. P. Weeks; who acquired from Mrs. Caroline Brownson; who acquired from Mrs. Iphigenie Puselier; who acquired from her husband; who acquired from the government. Defendant contests the title of plaintiff, mainly on the assumption that plaintiff is claiming title through a certain sheriff’s sale made in foreclosure of a mortgage given by Mrs. Emma Brownson, from whom defendant acquired title. That assumption, however, is purely gratuitous, since the plaintiff does not derive his title through the said foreclosure sale, but derives it as stated above. Defendant also contends that this is a petitory action, in which plaintiff, in order to succeed, must show a title good as against the whole world; and that plaintiff has failed to show a transfer from Mrs. Caroline Brownson to his author, Wm. P. Weeks, because the act of sale by Mrs. Brownson to Weeks did not embrace this lot 5. Both of these propositions are unfounded. The suit would be petitory only if the plaintiff had alleged that the defendant was in possession, or if, as a matter of fact, the defendant were in possession and the plaintiff out of possession, neither of which is true. The plaintiff does not allege that the defendant is in possession, and as a matter of fact the defendant has no better right to claim to be in possession than plaintiff, the property being low, unfenced, wood, or swamp land, upon which no greater acts of possession have ever been exercised than the. occasional cutting of cordwood — acts entirely insufficient to show possession, especially as between co-owners. Hence the suit is not petitory. See case of same plaintiff against Laws (this day decided) ante, p. 531, 53 South. 852. The description in the act of sale to Weeks was sufficient to convey said property. The sale was of a body of land described as bounded on the west by Bayou Teche, north by Puselier plantation, east by Grand Lake, and south by the Malion plantation; and lot 5 in question was included within these boundaries. True, the south boundary thus given was in part erroneous, in that the Malion plantation did not extend all the way to Grand Lake. But that error was harmless, since it brought no uncertainty into the description. The parties manifestly intended to include in the sale all the holdings of Mrs. Caroline Brownson in that locality as far as the lands belonging to other persons on the south. The intention was that these lands on the south, no matter to whom belonging, should constitute the southern boundary of the land .conveyed, and that intention continued to be manifest notwithstanding the mistake made in the attempt to give the right name of the owner of these lands abutting on the south. Defendant also pleads prescription acquirandi causa; but, manifestly, he has had no such possession as could support that plea. The defendant, Viguerie, acquired the whole of the property in litigation from Mrs. Emma Brownson and J. S. Martel. J. S. Martel had acquired an undivided half from Mrs. Emma Brownson. The defendant called his said vendors in warranty, and prayed for judgment against them, in solido, for the sum of $2,700, in case plaintiff [542] succeeded in Ms action; $700 of said sum being for one-half of the purchase price of said property, and the $2,000 being for the loss and inconvenience which defendant would suffer as the result of being deprived of said lot 5, which adjoins and connects his lands in that locality. This claim for $2,000 damages can hardly be serious, and, in fact, is not pressed. The sale to defendant included other lands besides the land involved in this suit. The title to these other lands is not contested, and the evidence in the record does not enable the court to determine what proportion of the price of the sale to defendant is attributable to these other lands and what to the land in litigation. On this point, the case will have to be remanded for furthe: trial. Mrs. Emma Brownson and Martel sold jointly; hence their warranty obligation is joint, and not in solido. It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that there now be judgment recognizing Walter J. Suthon as owner of one undivided half of that part of lot 5, section 30, township 13 S., range 10 E., north of Bayou Grue, parish of St. Mary, and ordering a partition in hind of said land; and that this ease be remanded for effecting said partition, and for further trial on defendant’s demand in warranty, with instructions to the lower court to enter judgment in favor of the defendant, F. O. Viguerie, against his warrantors, Mrs. Emma Brownson and J. S. Martel jointly, for whatever portion of the price of the sale by said warrantors to the defendant may be found to be attributable to the one-half interest involved in this suit; and that the defendant pay all the costs of this suit, except those strictly pertaining to the partition, which are to be paid in the usual course.