Devall v. Choppin

15 La. 566

Opinion

Simon J.,

delivered the opinion of the court.

This is a petitory action. Plaintiff alleges that he is the owner of a tract of land situated in the parish of West Baton Rouge, on the west bank of the Mississippi, containing forty arpents in front, more or less, by the depth of forty arpents, bounded above by Fausse-Riviere, which he purchased from the heirs of William Conway; that the titles to said land were originally granted in three portions, by the Spanish government, to William Conway, Patrick Conway, and Maurice- Conway; that afterwards, William Conway acquired the title of his two uncles to their respective portions, died the sole and exclusive owner of the three tracts, and transmitted the same to his heirs, who sold to the petitioner. He prays that the defendants, who are in possession of the whole land, be condemned to deliver up the same to him, and to pay him fifteen thousand dollars for the rents and profits, and ten thousand dollars damages.

The defendants, after pleading the general issue and denying specially the heirship of plaintiff’s vendors, aver that they are in possession of certain portions of the tract of land claim ed by plaintiff, which they purchased from the succession of Alexander Baudin, in April, 1836, as designated on, and according to a sketch annexed to the probate sale of the lands of the said succession : that the purchasers of the tract 1111 „ _ ,. , . , . . , , , sold by the estate of Baudin, derive their title, by regular intermediate conveyances, from Catherine Herbert, widow Bidou, who had inherited the same from her brother, Joseph Herbert, who had acquired it from Pierre Perrault, to whom it had been granted by the proper authorities. The defendants further allege a peaceable and uninterrupted possession, in good faith, and with a just title, since 1767, and plead the prescriptions of ten, twenty and thirty years.

Before the trial in the court below, plaintiff dismissed that part of his claim under Patrick Conway, and limited his demand to thirty arpents in front, by forty in depth, under William and Maurice Conway.

The record shows that plaintiff’s titles to the thirty arpents, are predicated on a complete grant made by the Spanish government to William Conway, on the 1st February, 1786, for ten arpents in front, by forty in depth, situated in the district of Pointe Coupée, bounded on one side by Patrick Conway, and on the other by Maurice Conway; and on an order of survey issued on the 27th January, 1789, in favor of Maurice Conway, for twenty arpents in front, by forty in depth, situated in the district of Pointe Coupée, in the inferior part of the mouth of False River, and bounded on one side by the mouth of said False River, and on the other by the tract of William Conway. Both titles were regularly confirmed by an act of congress of the 28th of February, 1823, and are accompanied by plats of survey made under the Spanish government, showing their location. It further appears that Maurice Conway, by last testament, dated 22d of May, 1792, instituted his nephew, Wilson Conway, as his only and universal heir; and that the children of William Conway, after the death of their ancestor, sold the two tracts to plaintiff, on the 11th of November, 1835. The plaintiff relying wholly on his titles, has produced no proof of possession in himself, nor in any one of those under whom he claims.

On the part of defendants, it has been shown that on the 9th of February, 1767, Pierre Perrault petitioned the French government of Pointe Coupée, for a tract of land on the point of False River, to contain forty arpents in front, by such depth as might be found ; which was granted “sous le bon plaisir de Monsieur le gouverneur,” with certain conditions and restrictions. This title, after having been once rejected by the United States land commissioners, when claimed in the name of Philip Bidou, was afterwards regularly confirmed in the name of Alexander Baudin, for forty arpents in front, by forty in-depth, by act of congress of the 28th of February, 1823.

From the mass of evidence contained in the record, we have deemed it necessary, in order to understand the chain of titles under which the defendants pretend to possess, and particularly for the investigation of the question of prescription, to recapitulate the following facts: Perrault, in 1774, sold his land to Joseph Herbert; and so far, there is no proof of actual possession by Perrault, except that it appears from the sale, that he had cut down and hewed timber on the land. Herbert, who was in the lumber trade, cultivated the land, made pickets, and cut cypress timber on it. He became insane in 1776, a curator was appointed to him, and he died some considerable time afterwards. During his insanity, the land was left unoccupied ; and for aught we know, it must have been during this period that the Conways made their application to the Spanish government. Herbert left no other heir but his sister Catherine, who was the wife of FranQois Bidou, and resided in France. No further act of actual possession is shown until 1807; that a son of Mrs. Bidou came to Louisiana, and sold the land to Mathurin, under the pretence of having inherited the same from his uncle Herbert. Mathurin took possession of the land, and possessed it for several years; but already in 1806, Madame Bidou had sent her power of attorney to Baudin, who, in 1812, instituted a petitory action against him in the United States Court, based on the same titles relied on in this suit by defendants. Mathurin was evicted, and Baudin, in 1813, was put in possession of the tract, as agent of Mrs. Bidou. In March, 1814, Baudin, as agent, sold a part of the land to Guinault; and in July following, Baudin became the purchaser of the balance at sheriff’s sale; he took up his residence on the land with his family in 1815, and was there in 1816. In 1820, Guinault sold his part of the tract to Baudin, who, in 1821, had the whole of it surveyed by one L’Hermite; this witness found several persons living on it, with Baudin’s permission. In 1822, one Brugé lived on the land; he had purchased a portion of it from Baudin, who, after his death, bought it back at probate sale. In 1833, Baudin sold the whole tract to Brunet, who took immediate possession, cultivated the land, made four crops, and remained there until the latter part of 1827, when, having failed, the tract was sold by his syndic, and bought in again by Baudin. After the death of Baudin, in 1834, the land was sold in five portions to several persons, who, together with their vendees, are the defendants in this suit.

The evidence shows, also, that in 1819, Baudin inslitutéd a suit against Dubourg and Baron, agents of Mrs. Bidou, on an account of expenses incurred during his agency, in which he gives credit for the amount of the sales.made by him to Guinault, and by the sheriff to himself, claiming judgment for the balance. He recovered; and an appeal having been taken to this court, the judgment, was affirmed, and the matters of controversy resulting from Baudin’s agency, were thereby ended. It is further in evidence that Baudin, styling himself the attorney in fact of the heirs of Patrick Conway, made application to the land office for the confirmation of their title; and although the identity of the individual has been very much controverted, we are satisfied that he is the same Alexander Baudin who obtained the confirmation of the title of Perrault. Proof has also been adduced, to show that Baudin paid the taxes on the land in dispute, from 1814 to 1834.

The record contains several bills of exceptions, one of which it is only necessary to notice: plaintiff objected to the production of a copy of the act of sale from Perrault to Her bert, on the grounds that the original had not been signed by tjie vendor, that it is not an authentic act, and that, therefore, the original must be produced and the signatures proven. The act was passed in 1774, before the commandant of Pointe Coupée, in the presence of two witnesses, and states that the vendor did not sign it, because he did not know how to write: the title is mentioned to have been delivered , , , . . , to the vendee, who, it appears, took immediate possession of the land. We think this act would have been sufficient evidence of title under the Spanish law', which, as this court , .. has repeatedly recognized, permitted parole sales or immoveables ; it has all the requisites of an authentic act; as such remained deposited among the notarial records of Pointe r ° Coupee, and the absence of the vendor’s signature is sufficiently accounted for by the public officer who received it; at that remote period, the ordinary mark of a party to an r 7 J r j authentic act was not required. In our opinion, the district judge did not err in permitting the copy to be read in evidence.

An act of sate SfeCommandant of Point Coupée, in 1774, in presenceoftwowitit°iCs!ated°thaí the vendor did not sign it, because he did not write,- bufit is mentioned that the title was delivered to the took Cm me díate possession of the land, possesses the requisites 0/ under^theSpaCl ish law. Parole sales of immoveables have been repeatedly recognised under the Spanish law \ and at that remote period, the ordinary mark of a party to an authentic act was not required. Parole evidence is good to prove facts and circumstances of possession at a iime when plaintiff^ title was unknown, and when the parties could not be suspected of making evidence for themselves. The acts and authority of a commandant, putting a settler In possession of a part of the public domain, by a written permission or grant, showing the extent of the tract conceded, and accompanied by proof of occupancy, will be considered pnma fade, a good and sufficient title. The acts of an officer to P],een assigned, are kent/hatuúñ aithoSTyr and

The other bills of exceptions taken by plaintiff, appear to us to be unfounded : the documentary and parole evidence objected to, was certainly good for the purposes for which it was offered, and particularly to prove facts and circumstances of possession which took place at a time when the plaintiff’s title was unknown, and when the parties could not be suspected to make evidence for themselves. The objection made to the introduction of Perrault’s original title, goes to its effect and not to its admissibility.

After a careful examination of the facts of the case, and an attentive consideration of the rights of the parties, we have come to the conclusion that it has become unnecessary for us to inquire deeply into the validity of their respective titles. We are not disposed to question the authority of the French commandant of Pointe Coupée to puta settler in the possession of a part of the public domain by a written per mission or grant which, showing the extent of the tract) conceded, and accompanied with proof of long occupancy, might afterwards be considered by his government as a suffi cient title ; indeed, such a title has very often been recognized subsequently by the Spanish authorities, to be an absolute abandonment of the king’s domain, and in a great many instances has been made the foundation, as in the present case, of favorable reports on which the government of the United States has confirmed a great number of private land claims. The jurisprudence of the Supreme Court of the United States on this subject, establishes the principle, “ that the acts of an officer to whom a public duty is assigned by his king, within the sphere of that duty, are prima facie taken to be within his power, and that he who controverts a grant executed by the lawful authority, takes on himself the burden of showing, that the officer has transcended the powers conferred upon him.” 12 Peters’ Reports, 437; 8 idem., 452-3-5, 664; 9 idem., 134, 734; 6 idem., 727; 10 idem., 331. The rule applies also to the judicial proceedings of local officers, to pass the title of land according to the course and practice of the Spanish law in the province of West Florida. 8 ., ,«t« , . . . , idem., 310. “When the act done is contrary to the written order of the king, it shall be presumed that the power has not been exceeded, and that the act was done according to some order known to the king and his officers.” 7 idem., 96; 8 idem., 447, 451. “ And courts of justice ought to require very full proof that he had transcended his powers, before they so r k r J determine it.” 9 idem., 464, 734. We conclude, therefore, that the authority of the French commandant, cannot 'properly be inquired into in this case. In relation to the question raised by plaintiff, whether the French authorities had the right to grant lands in Louisiana in 1767, it will be conceded that it comes rather late and with bad grace from a party who suffered his titles to lay dormant for upwards of half a century; and as we deem it entirely useless to make 't a matter of serious investigation in this suit, let it be suffiient for us to remark,, that it is historically known that the Spanish government never contested the validity of the grants lade by the French officers before the Spaniards took posession of the colony ; that the conduct of Spain amounts to t least a tacit ratification ; and that the government of the United States, by the 4th section of the act of 2nd March, 1805, has expressly declared that all French grants made while (he French government had the actual possession of the territory of Louisiana, should be recognized and protected. 1 Land Laws, 519; 2 While’s New Recopilación, 569. In this case, both parties have obtained the confirmation of the United States by the same act of congress, they therefore stand upon an equality with regard to our government; but, although, if their rights were to be tested on the strength of their respective titles, the plaintiff might perhaps succeed; we think it is only necessary for us to examine if the defendants have not acquired such title by prescription as to be considered sufficient to destroy the plaintiff’s pretensions.

It is historically known that the Spanish government never contested the validity of grants made by the French officers before the Spaniards took possession of the colony of Louisiana in 1769. The possession of an usurper, or person under adefeetive mesne conveyance, and who is evicted, will not interrupt prescription, as against the rightful proprietor, when they both claim under the same original title.

Before considering this question on its real merits, under the evidence adduced by defendants in support of their plea, it will not be unimportant to dispose of two questions raised by plaintiff’s counsel for the purpose of showing that the plea of prescription founded on the possession of several individuals, has been interrupted by certain circumstances brought out by the evidence, and that such possession, however long it may have been, cannot benefit the defendants. He contends :

1. That the possession of Mathurin, under the title to him transferred by Philip Bidou, is an interruption, and cannot enure to the benefit of the defendants.

2. That Baudin, who possessed the land by himself and by others, from 1814 to 1834, was in bad faith ; that he knew he was not the owner of the property, as his title under Mrs. Bidou was fraudulent, illegal and void ; and because he was not ignorant of the plaintiff’s titles, one of which wasH confirmed on his own application. He, therefore, maintains Q that Baudin’s possession cannot be of any use to theH defendants. H

I. From the circumstances of the case, it is clear, thatHj Mrs. Bidou and Mathurin both claimed under the title ofH Joseph Herbert, whose heir Philip Bidou had alleged bimselfB to be, when he sold to Mathurin. The suit then turned onfl the validity of this mesne conveyance, and not of the originalB title. The possession of both parties originated under the same title, and may certainly be considered as a notice to any adverse claimant. We cannot see any good reason to allow to such adverse claimant, who remained silent during the controversy, the benefit of an interruption which he never caused, and which would destroy the effect of the previous possession. Mathurin, being an usurper, was evicted, and the property returned to the first and previous possessor. Vazeille, in his Traité des Prescriptions, volume 1, page 189, number 176, says: “Le possesseur troublé dans sa jouissance a le choix du recours au possessoire ou au pétitoire. Quelle que soit la voie qu’il prenne, le résultat est le méme pour lui, si son action intervient dans l’année du trouble. 11 est méme trés juste que, sans considération d’un terns aussi court, toute décision qui proscrit définitivement l’usurpation, fasse disparoitre l’inlerruption qu’elle avoit produite. La cause cessant, l’effet doit cesser aussi. La raison l’indique, et Domat, l’enseigne dans ses lois civiles. (Notes, article 6, section 3, livre 3.) C’étoit aussi une régle établie, en termes généraux, par la loi, 13, section 9, jf. de acq. et amitt. poss. Si jussu judicii, res mihi restituía sit, accessionem esse mihi dandam placuit. Ce n’est plus la réintégration par la voie de l’interdit ou de l’action possessoire. JBruneman l’a bien compris; car, pour expliquer la loi, il présente l’exemple d’une éviction ordonnée contre l’individu qui détenoit la chose depuis six ans, et il dit que le possesseur réintégré peut joindre la possession de celui qu’il a évincé, h la sienne propre, pour former la prescription, et Vopposer U la tierce personne qui viendroit revendiquer cette chose. Suivant l’explication de Bruneman, Dunod afirme que ‘l’on peut employer la possession de celui qu’on a fait condamner h la désistance.’

“Pothier, dans ses pandectes, livre 41, titre 3, numero 47, tire la méme décision de la loi pré-citée. II dit: Supposons que j’aie commencé de bonne foi la possession d’un fonds, qu’un usurpateur s’en soit emparé, et que je l’aie reprise en vertu d’un jugement, la possession de cet usurpateur comptera pour moi, tout comme si je n’avais pas été dépossédé. See, also, Troplong, Prescription, vol. 1, numbers 448 and 449, in which he quotes the opinion of Cujas, on the text of the law 13: Prcedone possidente, si jussu judiéis res mihi resiitua sit. accessionem mihi jussu dandam, founded on the authority of the Baziliques : “ quod possidebas mala fide dedisti mihi, jussu judiéis : accedit mihi tempus tuum and number 451, in wiiich the author says, “le sysléme dont Cujas est 1’organe me paroit sous tout point préférable, soil sous le rapport doctrinal, soit sous le rapport logique.” We also adopt this system, and conclude on this point that Mathurin’s possession, far from having caused an interruption, ought to be considered as a continuation of Mrs. Bidou’s previous possession to enure to the benefit of her subsequent, ayant cause.

Where the original possessor was in good faith, although an intermediate possessor of the premises held in bad faith, the subsequent possessor in good faith can avail himself of the prescription applicable to such possession.

II. In order to prescribe, it is necessary that good faith should have existed at the commencement of the prescription. Old Code, article 72, page 488; Louisiana Code, article 3448. And it cannot be denied that Mrs. Bidou’s possession, after the eviction of Mathurin, was one in good faith as well as before; and that, bad she or her representatives transferred the property to the defendants, there would have been no doubt of the accomplishment of the prescription. But it is urged that Baudin, who began to possess for himself in 1814, was >n bad faith ; that he knew that the property belonged t0 others, and that, therefore, he did not possess animo domini. _ _ . , . Had Baudin been the first possessor, or was the time to establishjLhe prescription to be ascertained or computed by taking [fis possession as the commencement or origin of the right, . * • , ° ° , the authorities quoted by plaintiff s counsel from JPothier and Troplong, would, perhaps, receive their proper application, and there would probably be no difficulty, under our law, to maintain him in his position. But here, Baudin was an intermediate possessor, and his predecessor was in good faith. Troplong, Prescription, vol. 1, No. 432, says: “JDésle momentl qu’on succéde a une personne, on doit pouvoir se servir de sa possession, toutes les fois que le vice qu’on peut lui reprocher n’empéche pas la prescription d’aprés Ies regies générales.l Ainsi, dans l’exemple donné par Voét, je ne comprends pasl pourquoi la mauvaisefoi d’un possesseur intermédiaire empéche-l rait la jonction des possessions de bonne foi, qui ont précédé; car il suffit que la bonne foi ait existé au commencement, et la mauvaise foi survenue plus tard ne vicie pas la possession. Qu’importe done que l’un des possesseurs soit de mauvaise foi, si sa possesion n’est pas cells qui ouvre le terns de la prescription.” And in volume 2, numbers 937 and 938, the same author says : “ Puisque le moment initial de l’acquisition est le seul point a considérer, il s’ensuit que lorsqu’un individu a possédé de bonne foi un héritage, et qu’il meurt avant Paccomplissement de la prescription, l’héritier qui lui succéde continuera valablement a prescrire, quoiqu’il soit de mauvaise foi.”

If the possession has commenced in good faith, and if it is afterwards held in bad faith, that will not prevent prescription, even if the possessor’s title was fraudulent, and he knew another person had a better title.

• De méme, le successeur a litre parliculier. qui acquiert de mauvaise foi un immeuble, possédé avec litre et bonne foi par son vendeur, peut continuer la prescription eommencée par ce dernier, et la conduire a fin, sans qu’on puisse lui objecter sa mauvaise fot. C’est a peu pres comme si le vendeur húmeme fut devenu de mauvaise foi depuis son acquisition.”

This distinction appears to us perfectly clear; Baudin himself would have been entitled to prescribe; and in our opinion, the defendants who hold under him, ought to have the benefit of his, as well as of all the previous possessions. This doctrine is, undoubtedly, a proper and correct interpretation of the article 3448, of the Louisiana Code, that says: “ It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.” Under this view of the question, it is immaterial whether Baudin’s title under Mrs. Bidou, was fraudulent or not; and whether he knew, or not, that the Conways had a title which might afterwards prove to be better than his; and moreover, we are not ready to say that Baudin’s title did not become perfect' and final, by the judgment by him obtained in 1819, against the agents of Mrs. Bidou, and that the confirmation of the title in his name by the government of the United States, in 1823, ought not also to militate in favor of the defendants.

On the merits, we think the defendants have completely made out their title to the property in dispute, not only by the prescription of ten years, but perhaps also by that of thirty years. The facts which we have recapitulated, show clearly that the possession of those under whom defendants have acquired, began in 1774, and no title or good faith was necessary in support of this kind of prescription. Louisiana Code, article 3465; (and the same rule prevailed under the former laws of Louisiana.) In support of the prescription of ten years, which, if it were necessary, the defendants have J \ t even acquired under the Louisiana Code, they have shown : 1st. Good faith in the first and subsequent possessors, at least up to 1814: 2d. A legal title under the original grantee, sufficient to transfer the property : 3d. A continuous and uninterrupted, peaceable, public and unequivocal possession during the time required by law; and, 4th. A certainty in the object sold by Perrault to Herbert; being not merely his inchoate title, not even alluded to in the sale, but a tract of land of forty arpents in front, by the ordinary depth, sold with full warranty. Louisiana Code, articles 3445, 3449, 3450, 3451, and 3452. It is true that the possession has not always been a corporeal one; but when it is necessary to complete a possession already begun, the civil possession suffices, provided it has been preceded by the corporeal or actual possession of the thing. Idem., article 3453. We are, therefore, of opinion that the district judge decided correctly in rejecting the plaintiff’s claim, and in maintaining the defendants in their title and possession of the property.

To support the long prescription of thirty years, possession only, without title or good faith, is necessary: but continuous and uninterrupted possession, under a legal title derived from the original grantee, with certainty in the object and good faith in the first and subsequent possessors, will support the prescription of ten years. Where the possession has not always been a corporeal one, but when it is necessary to complete a possession already begun, the civil possession will suffice.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.