Boyet v. Perryman

123 So. 2d 79, 240 La. 339, 1960 La. LEXIS 1039
CourtSupreme Court of Louisiana
DecidedJune 29, 1960
Docket43876
StatusPublished
Cited by20 cases

This text of 123 So. 2d 79 (Boyet v. Perryman) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyet v. Perryman, 123 So. 2d 79, 240 La. 339, 1960 La. LEXIS 1039 (La. 1960).

Opinions

SIMON, Justice.

This suit, which began as an action of slander of title, was converted by defendants’ pleadings into a petitory action. At issue is the title to a parcel of property situ- ■ ated in Webster Parish, Louisiana, described as follows:

“Beginning at the Northwest corner of the Southeast Quarter of the Southeast Quarter (SEj4 of SEj4), Section 24, Township 18 North, Range 9 West, extending 9 chains south to the Sparta Road; thence north 11 chains; thence northwest to the corner of the Southeast Quarter of Southeast Quarter (SEi/J. of SE54) of the aforesaid section, township and range, containing 10 acres, more or less.”

. Plaintiffs, Mrs. Carrie Belle Boyet, O. Reese Boyet and J. Marshall Boyet, the surviving widow and heirs of Shelby B. Boyet, instituted this suit in jactitation averring that they own and are in the actual physical possession of the contested property and that the defendants, The Brushwood Methodist Church and its trustees slandered their title by the execution and recordation of an oil, gas and mineral lease, dated April 9, 1951 and duly recorded, covering said property.

The defendant Church admitted the execution and recordation of said mineral lease, denied plaintiffs were the owners of said property and asserted title in itself, deraigning its muniment of title, i. e., by purchase from and through Noel PI. Boyet,1 thus converting the suit into a petitory action. In addition thereto defendant plead estoppel by warranty against plaintiffs on the ground that its author in title, Noel H. Boyet, had specifically warranted its title against “the lawful claims of myself, my heirs, my executors and administrators;” that Shelby B. Boyet and his brothers and sisters had unconditionally accepted the succession of their deceased father, and that plaintiffs had likewise unconditionally accepted the succession of Shelby B. Boyet, thus equally obligating themselves to hon- or and discharge the aforesaid warranty of title.

Plaintiffs thereupon plead in support of their asserted title to the entirety of the [346]*346property the acquisitive prescription of thirty years (LSA-C.C. Article 3499 et seq.) and the acquisitive prescription of ten years (LSA-C.C. Article 3478 et seq.) in respect only to an undivided %ths interest therein.

Upon these issues, after trial on the merits, there was judgment recognizing the defendant, Brushwood Methodist Church, as the owner of the aforedescribed parcel, and, as such, entitled to the possession thereof, from which we infer was an overruling of plaintiffs’ pleas of prescription. On appeal the Court of Appeal, Second Circuit, 98 So.2d 593, in recasting the judgment overruled the plea of estoppel and the plea of thirty years’ prescription but sustained the plea of acquisitive prescription of ten years, and accordingly recognized plaintiffs as the owners of an undivided %ths interest, and the defendant Church as the owner of a j^ths interest in the aforedescribed ten-acre parcel in contest, and as such ordered each placed in possession of their respective interests.

Upon the application of the defendant Church we granted writs to review the judgment of the Court of Appeal as to the correctness of it judgment sustaining plaintiff’s plea of ten years prescription acquirendi causa.

The facts reveal that on August 5, 1887, Noel H. Boyet, by authentic deed duly recorded, sold, conveyed and delivered, with full warranty of title, to the Trustees of the Brushwood Methodist Episcopal Church South—thereafter changed to Brushwood Methodist Church—the ten-acre tract- in controversy, which was carved and separated from a larger tract of land previously acquired, January 30, 1886, by Noel H. Boyet. In the act of conveyance to the Church it was therein declared that the parcel of ground was to be used as a “Camp-Ground,” or a place of worship. It appears that following this acquisition Noel H. Boyet moved his fences to the line separating this parcel from his remaining property, and thereupon the defendant took possession, erected frame buildings and the improvements thereon, which remained until the ravages of time took its toll. The time of their total obliteration is uncertain.

Without ever reacquiring the subject parcel, Noel H. Boyet and his wife, Mary Ann Boyet, died leaving seven surviving children, who caused their successions by ex parte proceedings to be opened and to have themselves recognized as owners by virtue of their heirship and sent into possession of their entire estates. Listed in the judgment as succession property was the Ei/£ of SE)4, Section 24, Township 18 North, Range 9 West (out of which the Camp Ground was carved), without excepting the disputed parcel which had been previously sold as aforestated.

By deed dated January 6, 1917, D. Wes Boyet and Cora Boyet Monzingo (two of [348]*348the seven children of Noel H. and Mary Ann Boyet) sold and conveyed to their five remaining brothers and sisters “all of our right, title and interest in the estates of our deceased father, Noel H. Boyet, and mother, Mary Ann Boyet,” giving as a description of their rights the property described in the judgment of possession rendered in the Succession of Noel H. Boyet.

By sheriffs deed dated August 7, 1920, Boyet & Company (a commercial partnership then composed of the remaining four heirs of Noel H. Boyet) acquired the rights, titles and interests of the estate of J. W. Boyet, deceased (one of the children of Noel H. Boyet), in and to the Estate of Noel H. Boyet, sold under Order of Court, in which the entire property was described without specifically describing the ten-acre parcel previously sold to the Church by their ancestor as aforestated.

On January 1, 1921, the four surviving members of the family partnership amicably partitioned “all of the property, real and personal, belonging to the succession of Noel. H. Boyet, deceased, and Mary Ann Boyet, deceased.” In this partition there was allotted to S. B. Boyet, now deceased, his portion, and which embraced the ten-acre Camp Ground. S. B. Boyet died on December 5, 1948, being survived by his wife and two sons, who are the plaintiffs in this action.

The title pleaded by defendants is conceded by plaintiffs to be a valid paper title to the parcel in contest and the question to be resolved is whether plaintiffs have a superior title to an undivided three-sevenths interest which they claim to have acquired by the ten-year prescription of Article 3478 of the LSA-Civil Code, which provides that “He who acquires an immovable in good faith and.by just title prescribes for it in ten years * * * ” and Article 3479, which declares that “To acquire the ownership of immovables by the species of this prescription * * *, four conditions must concur:

“1. Good faith on the part of the possessor.
“2. A title which shall be legal, and sufficient to transfer the property.
“3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
“4. And finally an object which may be acquired by prescription.”

Other applicable articles of the Civil Code are:

Article 3481: “Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it.”

Article 3482: “It is sufficient if the possession has commenced in good faith;

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Bluebook (online)
123 So. 2d 79, 240 La. 339, 1960 La. LEXIS 1039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyet-v-perryman-la-1960.