Alexander v. Bourdier

The opinion of the court was delivered by McEnery, J. The plaintiffs, heirs of T. S. Alexander, brought this petitory action to recover possession as owners of one-third of the Waveland plantation, situated in the parish of St. Mary. The plaintiffs allege that their father, T. S. Alexander, was the owner of one undivided third of said plantation and that he was never divested of title thereto. Defendants claim title to the whole of said plantation by purchase at a probate sale of property belonging to the succession of Mrs. Louisa Avery, on the 23rd day of September, 1875. They allege that Mrs. Avery acquired title to one-third of said property, the interest of T; S. Alexander, at sheriff’s sale, in November, 1869, made under execution of the judgment of Jno. M. Vaughn, co-tutor, vs. P. D. Richardson, testamentary executor, et ais. And that Mrs. Avery acquired the other two-thirds of said plantation at [324] an administrator’s sale of the estate of Mary Alexander, on the 15th November, 1869. The defendants also plead an estoppel to any'claim of the heirs of T. S. Alexander to any portion of said plantation because of the several acts and declarations and silence of their father in relation to the sale of said property, said acts and conduct being of that character which induced the plaintiffs to believe that he had no interest in the plantation and they were thereafter estopped from disputing the title of plaintiffs. In 1861, Mary Rebecca Alexander, widow of D. D. Richardson, and Theodore S. Alexander, bought at the probate sale of the effects of the estate of David D. and Edward M. Richardson, the whole of Waveland plantation for the price of $103,000; $83,000 of which was on credit, represented by notes secured by mortgage and vendor’s privilege. Mrs. Rebecca Alexander became the owner of two undivided thirds, and Theodore Alexander of the other undivided third. Each party executed notes in proportion for the part of the plantation owned by him. Mrs. Mary Rebecca Alexander died. Theo. S. Alexander qualified as tutor of her minor children (the father also having died), Kate and Lizzie Richardson. J. M. Vaughn, co-tutor of the children of Edward M. Richardson, held some of the notes given for the purchase price of the plantation by Mrs. Mary Rebecca Richardson and Theo. S. Alexander. John M. Vaughn, co-tutor, and wife, brought suit on the notes held by them. All parties in interest were made defendants. The Wave-land plantation was fully and accurately described. Its sale was prayed for and the mortgage and vendor’s privilege thereon asked to be recognized. The prayer of the petition is as follows: “Petitioners pray that the said Francis D. Richardson, testamentary executor of the last will and testament of Edward M. Richardson, deceased, Theodore S. Alexander in his own right and individual capacity and as dative tutor of Kate and Lizzie H. Richardson, Louise Richardson, wife of Dudley Avery and the said Avery be duly cited to appear and answer this petition, that thereafter the premises considered, they be condemned and adjudged to pay to your petitioners the aforesaid sum of $24,538.65 with interest thereon at the rate of 8 per cent, per annum on $4,907.73 from February 1, 1861, like interest on like amount from [325] 1st February, 1862, and on like amount from 1st February, 1863, and like amount from 1st February, 1864, and like amount from 1st February, 1865. The said Francis D. Richardson as indorser and executor, in his latter capacity in the whole amount and interest, the said Theodore Alexander in his individual capacity in the sum of $8,174.53 andas ■dative tutor of Kate and Lizzie H. Richardson, $10,963, with interest as above specified in equal proportions to the whole amounts of the notes, and the said Louise Richardson, wife of Dudley Avery, in the sum of $5,453.63% with interest and in proportion as prayed for • against Theodore Alexander, tutor.” The prayer concludes for a recognition of the mortgage and vendor’s privilege and for an order for the sale of the property to satisfy the same. Answers were filed by all parties to this suit, and the contest seems to have been vigorously waged. The judgment rendered in the case was as follows: “ It is ordered adjudged and decreed that said plaintiff do recover from the estate of Mary R. Richardson, deceased widow of D. D. Richardson and from Theodore S. Alexander, personally, the sum of $10,324 with 8 per cent, per annum thereon as follows, to-wit: On one-fifth of said amount from the 1st of February, 1861, on another fifth from the 1st of February, 1862, on another fifth from the 1st of February, 1863, and another fifth from the 1st of February, 1865, said amounts to be recovered from the defendants in the following proportions from the estate of Mary R. Richardson two-thirds of said amount and the other third from Theodore Alexander. It is further ordered that plaintiffs’ mortgage and privilege take effect from the the 1st of February, 1859, on the undivided third of the property on •that day sold by the sheriff of the parish of St. Mary, and which heretofore belonged to the estate of Edward M. Richardson, deceased.” The fi. fa. and the sheriff’s return thereon are lost. The sheriff .kept the fi. fa. until 1875, when he returned it. But it is a fact that a fi. fa. issued, and by the advertisement offered in evidence, it is shown that one-third of the property was seized, and the sheriff’s deed shows that one-third of the plantation was adjudicated to Louise M. Richardson, wife of Dudley Avery. All parties who had any right, title, claim or interest in said property were parties to the above suit. They were concluded by the [326] judgment. The heirs of Mary Rebecca Richardson and Theodore S. Alexander owned the plantation in indivisión. If one-third of it was sold they lost all right or title to that third. Two-thirds of the plantation remained. The plaintiffs, therefore, have no right to one-third of the plantation. They could only claim, if they had any title, one undivided third interest in the remaining two-thirds. But what became of this remaining two-thirds interest of the plantation? It. was sold in November, 1869, at the succession sale of Mrs. Mary Rebecca Richardson, and purchased by Mrs. Avery. Theodore S. Alexander was a witness to the act of sale to Mrs. Louise Richardson. Theodore S. Alexander evidently construed the effect of the first sale as having divested him of all title or interest in said plantation. He was the uncle of Mrs. Louise M. Richardson. After the two sales and the final adjudication of the property to her she went into possession of the whole place. Theodore Alexander acted as her agent, collected rents for her, and accounted to her husband for the same. He permitted the entire property to be assesed in her name for six years. She paid the taxes on the plantation during this time. At her death he permitted it to be inventoried as her property, and made no opposition to its sale as ‘a part of her succession effects. Before leaving the premises he delivered certain plats or maps of the plantation to the defendants ‘as part of the muniments of title to the property. These several acts of the plaintiffs’ father and his silence for so many years, permitting the property to be sold under several decrees without asserting title, effectually estop them from claiming title to any part of said Waveland plantation. Marsh vs. Smith, 5 R. 518; Lippmins vs. McCranie, 30 An. 1251. It is evident that the word tutor, in the transferring clause of the deed, placed after Theodore S. Alexander’s name, was a clerical error. The suit, the judgment, the seizure, show that it is a misdescription and can have no possible effect. Mrs. Louise M. Richardson’s (Mrs¡ Dudley Avery) succession was opened in the parish of Iberia. The order for the sale was obtained there. The property was situated in St. Mary parish when it was sold by the administrator. This did not render the sale null and void. In the case of Julia Pierce, 9 M. 461; Chaney, Admr. vs. Gray, 7 R. 144. Judgment affirmed.