Walker v. Baer-Thayer

MOUTON, J. Plaintiffs herein, eight in number, are the children of T. P. Pornea, who died in 1914, and of Mary Pornea, his surviving widow. They allege their ownership and possession of an undivided eight-eighteenths interest in a timbered tract of land of 100 acres in Washington parish in the B. Carmen headright 45, range 2, etc. This land, they aver, is community property which belonged to their deceased father and surviving mother. They allege that within the past six months defendant company has, without their permission or consent and over their protests, entered on this land, and has committed acts of trespass, by cutting and removing .therefrom 400,000 feet of timber worth $8 per thousand feet, footing up a total in value of $3,200 to eight-eighteenths or say the sum of $1,422.22, to which they are entitled. Reserving their rights to sue [383] for the value of any timber cut on the land after the filing of their suit, plaintiffs pray for judgment against defendant company for $1,42'2.22, with legal interest from judicial demand. The defendant company denies the ownership of the plaintiffs as averred, but admits that it has cut and removed from the land described in their petition 200,000 feet of timber, which defendant alleges does not exceed in value $4 per thousand. After averring that it had purchased the timber on the land described in plaintiffs’ petition from John H. Cassidy and Daniel E. Sheridan on March 3, 1920, under a warranty deed, defendant prays that its vendors be called in warranty, that the suit be dismissed, but, in case judgment is rendered against it, for a like judgment against the warrantors. Cassidy and Sheridan, after admitting the call in warranty and adopting paragraphs 1 to 11 «f the answer of the Baer-Thayer Hardwood Company, defendant, aver that they purchased the timber claimed by plaintiffs from Mathew Slush and Mrs. Jessie W. Hannan by virtue of a deed accepted by them January 23, 1920; that Mathew Slush and Mrs. Jessie W. Hannan acquired from Mrs. Yandalee Wilkes and her husband, S. W. Wilkes, March 2, 1905, which was confirmed by these two vendors, March 16, 1918, by a quitclaim correcting the description given in the act of conveyance. They further allege that a portion of the timber on this land was acquired by Mrs. Vandalee Wilkes from Robert Daniel, July 27, 1891, and the other from the heirs of A. McMillan prior to March 17, 1897, as shown by a judgment reinstating the title thereto. They also aver that Mathew Slush and Mrs. Jessie W. Hannan acquired from R. D. Fornea February 9, 1920. They ask that R. D. Fornea be called in warranty, and, in a supplemental answer, after alleging that the call of R. D. Fornea had been dismissed on exception, they pray that their warrantors, Mathews Slush and Mrs. Jessie W. Hannan, non-residents, be called in warranty, through their attorney and representative, Mr. B. D. Talley, who, after filing an exception of no cause of action, with due reservation of his rights under the exception, answered, urging the plea of estoppel against plaintiffs and the prescription of ten and thirty, years. In their answer, Mathew Slush and Mrs. Jessie W. Hannan, ask that R. D. Fornea be called in warranty and for judgment against him in case they be held responsible in warranty to Cassidy and Sheridan. R. D. Fornea answered the call in warranty, and, after denying the petition of the plaintiffs, avers that they have no interest in the timber described in their petition, admits that he and Mrs. Mary Fornea, his mother, executed what he thought to be a quitclaim to any interest in the property described in plaintiff’s petition, but, if that title was a warranty deed, denies that he received $500, but, on the contrary, that he received $50 for the purpose of signing a quitclaim, and that, if he be responsible in any amount, it be restricted to the sum of $50. The district judge rendered judgment rejecting the demand, from which plaintiffs appeal. Plaintiffs, the record shows, trace their title from Robert Daniel, from whom T. P. Fornea acquired his title in December, 1885. The warrantors of defendant company, Cassidy and Sheridan, Mathew Slush, and Mrs. Jessie W. Hannan, also claim that they derive their title for a portion [384] of the land from Robert Daniel, through Mrs. Yandalee Wilkes. Counsel for defendant company says in his brief that the description in both the Fornea and Wilkes deeds are too vague to support a claim under either without proof dehors the calls of the deeds. Plaintiffs and defendant company claim to have derived their titles from Robert Daniel; ¡plaintiffs through T. P. Fornea who acquired from Robert Daniel in 1885, and ■ defendant through Mrs. Vandalee Wilkes and the heirs of McMillan who acquired from Daniel in 1905, and 1917. There were various deeds introduced in evidence, and, for the purpose of locating the land on which it was alleged the timber had been taken, several witnesses were examined in the case- in furtherance of that purpose, T. E. Piggott, parish surveyor, was sworn as a witness by plaintiffs. He testified he had made two surveys of the land, one in 1905 or 1906 for the Wilkes from whom defendant traces its title, and the other later, in 1907, for T. P. Fornea, the alleged author in title of the plaintiffs. The surveyor said that the land he surveyed for T. P. Fornea was the same as is described in plaintiffs’ petition. He also stated, however, that he had subsequently surveyed 400 acres of land for Mrs. Wilkes, from whom defendant claims through mesne conveyances, and that these 100 acres claimed by plaintiffs were within this body of land surveyed for the Wilkes. Several witnesses, old residents of the neighborhood where the land is situated, were also examined in reference to its location. The preponderance of their evidence sustains the contention that the 100 acres were located within the 400 acres surveyed by Piggott for the Wilkes, original authors of defendant. It therefore appears that .plaintiffs failed to prove by the surveyor and their witnesses that the timber was cut from the land claimed in their petition, as a community asset from T. P. Fornea, their deceased father; on the contrary, shows that it was removed from the land which had been transferred to defendant through various sales from the original title acquired by the Wilkes from Robert Daniel, the common author of the plaintiffs and defendant. Plaintiffs’ counsel say their suit is one in trespass for the value of timber, that they are not required, as in a petitory action, to prove title against all the world, quoting Gould v. Bebee, 134 La. 123, 63 So. 848, and Union Sawmill' Co. v. Starnes, 121 La. 554, 46 So. 649, in support of that contention. In Gould v. Bebee, 134 La. 123, 63 So. 848, the court held that, where plaintiff claiming title to real property, seeking damages against a trespasser who does not assert title in himself or his co-trespassers, it is not necessary for plaintiff to show a ■ title ' perfect in all respects. In Union Sawmill Co. v. Starnes, 121 La. 554, 46 So. 649, there is nothing in conflict with the foregoing rule as stated in 134 La. 123, 63 So. 848. In this case the real defense is that the defendant company has title to the timber which it traces through the Wilkes, and consequently that plaintiffs have and could have none through their father, T. P. • Fornea, from whom they claim in the quality of heirs in community.' The defendant is therefore indirectly asserting title, and cannot be brought under the operation of the foregoing rule, where the doctrine announced is that, when a trespasser does not set up title in himself or [385] his co-trespassers, plaintiff is not required to establish a title good in. all respects. The trial judge found that plaintiffs had failed to make out their case with the degree of reasonable certainty necessary to support a judgment in their favor and rejected their demand. We find no error in this finding of the district judge. As there is no judgment against defendant, there is no necessity for us to consider the demands in' warranty. LECHE, J., not participating.