Albert Hanson Lumber Co. v. Baldwin Lumber Co.

LAND, J. This is a petitory action to recover the N. y2 of N. W. % section 20, township 15 S., range 10 E., situated in the parish of St. Mary. Both parties trace their titles to Robert Gibbs, who purchased the land from the state of Louisiana in the year 1847. Defendant claims under a sale made by Robert Gibbs in 1849 to Adelard Carlin. Plaintiff claims under a probate sale made in the vacant succession of Robert Gibbs in 1899. The contention of the plaintiff is that the deed from Gibbs to Carlin was not inscribed on the records so as to give notice that the land in dispute had been conveyed. The contention of defendant is that the land was properly described in the act of sale from Gibbs to Carlin; that said act, having been deposited in the proper office [851] and indorsed by tbe proper officer, was notice to tbe plaintiff of tbe lands conveyed; that tbrougb clerical error tbe land sold was misdescribed in tbe inscription of tbe deed on tbe boobs of tbe conveyance office; and that tbe defendant bad acquired tbe property by tbe prescription of 10 years. Tbe deed conveyed— “the fractional east half and southeast quarter of southwest quarter section seventeen, the northeast quarter of northeast quarter section nineteen; north fractional half of the north fractional half and the southwest quarter of the northeast fractional quarter of section twenty all in township fifteen south, range ten east, containing three hundred and nineteen 75/100 acres as per entry made of said land by the said vendor under state warrant No. 91 of the land office at Opelousas as per certificate from the register of the said land office dated the 19th day of March, 1847, exhibited at the execution of the act.” In tbe inscription of tbe deed on tbe conveyance book, tbe words “of tbe north fractional half,” and tbe word “section” before the word “twenty,” were omitted, making tbe description to read as follows: “The north fractional half and the southwest quarter of the northeast fractional quarter twenty.” Tbe plaintiff contends that tbe N. % of the N. W. % of section 20 was not included in tbe description of record, and that, as tbe description in tbe original deed was not recorded, it can have no effect against third persons. Tbe description as recorded is ambiguous from any point of view, and any construction that may be adopted cannot be reconciled with tbe precise acreage called for by tbe certificate from tbe state land office. However this may be, we have come to tbe conclusion that tbe original deed operated as notice to plaintiff. This deed was deposited in the office of tbe parish records in tbe year 1849, and was indorsed and indexed by the official. Tbe deed was actually recorded, but the description of tbe lands conveyed was not correctly copied. By Act No. 151 of 1853, re-enacted in Act No. 261 of 1855, and incorporated in tbe Civil Code of 1870, art. 2251, it was made tbe duty of all notaries, without tbe limits of the city of New Orleans, to deposit in tbe office of tbe parish recorder the originals of all acts passed before said notaries; and it was further provided that notarial acts thus deposited should form a part of the archives of the parish recorder, and should be immediately recorded. Section 3 of tbe same statute made it tbe duty of tbe recorder to indorse on tbe back of each act transmitted to him the time such act was received by him, and to record tbe same without delay, and further provided as follows: “And such acts shall have effect against third persons, only from the date of their being deposited in the office of the parish recorder.” The deed from Gibbs to Carlin bad already been deposited, indorsed, and indexed, and became effective against third persons from and after tbe passage of tbe act of 1853. Tbe imperfect record of the deed was certainly notice that it bad been deposited in tbe office of tbe recorder and formed a part of the archives of his office. Tbe deposit and indorsement of tbe deed, without any record whatever, was sufficient notice to third persons. See Way v. Levy, 41 La. Ann. 447; Payne & Co. v. Pavey and Husband, 29 La. Ann. 116. As tbe deed thus deposited and indorsed operated as notice to third persons, tbe plaintiff was bound to take notice of tbe misdescription of tbe property in tbe inscription of the deed in tbe conveyance book. This conclusion renders it unnecessary to consider other points in tbe case. Judgment affirmed. See dissenting opinion of PBOVOSTY, J., 58 South. 639.