Schultze v. Frost-Johnson Lumber Co.

BREAUX,- C. J. In the -present case plaintiffs bought,the land they",claim from the1 heirs of - the laté Thomas Green Davidson and his first wife, Mrs. Frances E. Davidson. Mrs. Davidson died in 1862. Prior to 1872, Thos. Green Davidson settled with the children of his first wife for all amounts inherited by them from their mother. [1] The weight of evidence is that the heirs who undertook to transfer to plaintiffs the property in 1888 had received their inheritance from Thos. G. Davidson long prior to that date, and in consequence had no claim to transfer. Plaintiffs brought this suit to recover judgment against the defendants for the property described in their petition which belonged to Davidson- and his first wife. The-Succession of the first'wife having been settled, there is no right Of actionin' so far as relates to the succession of the first Mrs. Davidson. [5]' The prescription pleaded of'30 years and of 10 years is a'complete bar. It must be borne in mind that Mrs. Davidson died 'in 1862. It is now too late for the heirs to recover these lands against those who have had possession ¿S owners in good faith for over 10 years. ' " ! ' [2,3] Now, as to the interest of Thos. Green Davidson' in these lands':' The act of sale of March 26, 1875, was’ destroyed at the time that the courthouse was destroyed by-fire. Thos.' G." Davidson conveyed the land to George Colmer. This deed is dated March .25, 1875; it was confirmed by an authentic act of 1877 — an act made nécessary'by the fact that the original 'deed had been ‘destroyed by fire, as just before mentioned. It is streirúoüslyurged'-'that the deed was, not authentic. Conceding for a moment, -that it was'not, it'was duly recordfe'd iff thé recorder’s office in due time. But,. conceding that it was not recorded in due time, it was an act inter partes (the act of the father, Thos. G. Davidson, as to whom his heirs cannot plead they were third persons); ■ they are not in a position to invoke the law of registry; and they are bound by the acts of-their an [370] cestor. It had been his property as head of the community, and what he did in disposing of it is binding upon the heirs. [4] The contention is also that it was a dation en paiement, and that, as actual possession had not been given, the dation could not be of any effect. This is very true as to third persons, but not as to the heirs. As to third persons, there is no dation en paiement unless delivery is made. Moreover, it was an onerous donation; after 30 years it cannot very well be annulled for the effect of time and prescription have cured defects of form, if any there were, as claimed. Hughes v. Mattes, 104 La. 218, 28 South. 1006. It is therefore ordered, adjudged, and decreed that the judgment appealed from is affirmed.