Bartlett v. Calhoun

FORET, Judge. This petitory action has now come before us for the third time. See Bartlett v. Calhoun, 404 So.2d 516 (La.App. 3 Cir.1981), writ granted and reversed, 412 So.2d 597 [792] (La.1982); 430 So.2d 1358 (La.App. 3 Cir.1983), writ denied, 438 So.2d 575 (La.1983). The sole issue presented for our review is whether the trial judge was correct in holding (after a trial on the merits) that a deed from the plaintiffs’ aunt1 to the defendant, dated November 30, 1949, was not a forgery but rather, an authentic conveyance between the parties, which divested plaintiffs’ ancestors of title to the subject property. This, of course, is purely a factual matter, and the trial court’s finding will not be disturbed unless manifestly erroneous or clearly wrong. After reviewing the record and the judge’s oral reasons for judgment, we are convinced that his findings and decision are amply supported by the evidence. The trial court was obviously impressed with the plaintiffs’ handwriting experts, but gave more weight to the lay witnesses’ testimony and other evidence produced by the defendant. This was within his province, and we are unable to say he erred in so doing. Plaintiffs’ witnesses did not remember much about the November 30,1949 conveyance to defendant. Plaintiffs’ experts based their conclusions on opinion and comparison of other writings and marks assumed to have been made by appellants’ ancestors. These opinions must yield to the presumed authenticity of the contested conveyance and positive testimony of the notary public and one of the witnesses before whom the deed was executed. Arnett v. Marshall, 210 La. 932, 28 So.2d 665 (La.1946). The record reflects that the. plaintiffs have failed to carry their burden of proof. Accordingly, the judgment of the trial court is affirmed. All costs are to be paid by plaintiffs-appellants. AFFIRMED. Footnotes [1] The plaintiffs in this petitory action are: Eula Thompson Bartlett, Fannie Thompson White, Evelyn Thompson Brazzell, Benjamin Thompson, Willie D. Thompson, Limmie C. Thompson, Carrine Thompson White, Hazel Thompson La-nardo, Thelma Faye Bailey, and Beatrice Thompson Faire.