Dufrene v. Moore

612 So. 2d 147, 1992 La. App. LEXIS 4033, 1992 WL 381782
CourtLouisiana Court of Appeal
DecidedDecember 16, 1992
DocketNo. 92-CA-524
StatusPublished

This text of 612 So. 2d 147 (Dufrene v. Moore) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dufrene v. Moore, 612 So. 2d 147, 1992 La. App. LEXIS 4033, 1992 WL 381782 (La. Ct. App. 1992).

Opinion

KLIEBERT, Chief Judge.

We are called upon in this appeal to determine which of two families is entitled to the ownership of certain immovable property located in Jefferson Parish. Plaintiffs, the Hogan heirs,1 appeal the trial court decision that the Mayronne heirs, defendants,2 acquired the property by prescription of ten years acquirendi causa. For the following reasons, we affirm.

The Hogan ancestors purchased approximately 500 acres of marsh and swamp land from Louisiana Land & Exploration Company (LL & E) on July 24, 1931, which is described as follows:

A CERTAIN PORTION OF GROUND, situated in the Parish of Jefferson, in the District of Barataría, said portion of ground is designated as being Section 84 and 102 in Township 14 South, Range 23 East, containing. 504.06 acres.

The property was adjudicated to the State of Louisiana on December 30, 1934 for nonpayment of taxes due for the 1933 tax year. The property was redeemed by the Hogan heirs on October 22, 1936 by payment of the 1933 tax debt.

The property again went to a tax sale for the non-payment of taxes for the year 1938 and was purchased by the Mayronne heirs at the tax sale on September 16,1939. The Mayronne heirs went into possession of the property shortly after the sale.

Then, on June 10, 1953, the Hogan heirs again paid the taxes due for the tax year [149]*14919333 and received a redemption certificate from the state which was filed of record.

On September 29, 1955, the Hogan heirs sued the Mayronne heirs to establish ownership of the property. The matter was abandoned and the case dismissed in 1965.

The Mayronne heirs continued in possession of the property and on August 6,1980, the Hogan heirs instituted this “PETITION FOR DECLARATORY JUDGMENT, ACCOUNTING, ETC.,” again seeking to be recognized as owners of the property at issue. The actions for accounting and declaratory judgment were severed before trial and the case proceeded as a petitory action. The case was submitted on stipulated facts, a copy of which stipulation is attached as Appendix “A” (with exhibits omitted). The trial court held the May-ronne heirs were the owners. In doing so, it found the Mayronne heirs had met the requirements of Civil Code Article 3475 to establish title by acquisitive prescription. The requirements itemized in the article are as follows:

1). Possession for ten years;

2). Good faith;

3). Just title;

4). A thing susceptible of acquisition by prescription.

The Hogan heirs have appealed that judgment and argue the Mayronne heirs were in legal bad faith as the 1936 redemption by Hogan’s ancestor’s in title was null and void because the redemption statute utilized by Hogan was declared unconstitutional in 1937. Thus, they argue the May-ronne heirs were in legal bad faith and could not have just title since their title acquired in 1939 was defective. Therefore, they could not avail themselves of the prescription of ten years acquirendi causa. Furthermore, they argue because title remained vested in the state this was not a “_ thing susceptible of prescription.” Additionally, they maintain the Mayronne heirs have not proven thirty years acquisitive prescription.

The contentions advanced by the Hogan heirs have been rejected on numerous occasions by our Supreme Court and appellate courts. As stated in Eivers’ Heirs v. Rankin’s Heirs, 90 So. 419, 150 La. 4 (1922):

“[2] It is well settled that a bona fide purchaser at a tax sale, receiving a deed prima facie valid, though in fact invalid, after having actual and notorious possession of the property, in good faith, for 10 years, acquires an indefeasible title by prescription acquirendi causa. A purchaser at tax sale may, in good faith, presume that the assessor and the tax collector have performed their duties; and it is not essential to the purchaser’s good faith that he should investigate the assessment rolls or verify the recitals of the tax deed....”

See also Saucier v. Sondheimer Co., 32 So.2d 900, 212 La. 490 (1947); Wilkie v. Cox, 222 So.2d 85 (3rd Cir.1969) writs refused 223 So.2d 873, 254 La. 470 (La.1969).

Here the Mayronne ancestors were a bona fide purchaser of the property at tax sale in 1939 for non-payment of taxes for the year 1938 by the Hogan ancestors. The Mayronne acquisition was filed of record in the conveyance office of Jefferson Parish. Thus, the trial court determination that the Mayronne ancestors were in good faith and had just title is affirmed. Additionally, because the subject of this dispute is immovable property, it is susceptible of prescription of ten years acquirendi causa notwithstanding the fact that at the time of the 1939 tax sale title to the property was vested in the state due to the 1937 declaration that the redemption statute utilized by the Hogan ancestors in 1936 was unconstitutional. See Eivers’ Heirs, supra; Saucier, supra, and Wilkie, supra.

We are now left with the question of whether the Mayronne heirs have had “... continuous, uninterrupted, peaceable, public and unequivocal” possession for ten years. LSA-C.C. Article 3476.

The Mayronnes have been in possession of the marsh and swamp land since the tax sale on September 16, 1939. They granted oil and gas leases on the property in 1944 [150]*150for as long as minerals are produced on the property and in 1962 for five years. Both leases were recorded in the records of the Parish of Jefferson. A trapping lease was executed and recorded in Jefferson Parish with a term from May 1, 1967 through April 30, 1972. The lessee, Roland Ba-deaux, built a trainasse (canal system) throughout the property in 1967, has maintained the trainasse and trapped continuously and publicly to date. Rights of Way to Shell Pipeline Corporation were granted in 1969 and two in 1975, all recorded in the records of Jefferson Parish. ' Further, real estate taxes were paid exclusively by the Mayronne heirs from their purchase of the property at tax sale in 1939 through tax year 1953. Thereafter, it appears taxes were paid by both parties through 1989. Finally, a right of way was granted to Louisiana Power & Light Company in 1975. Louisiana Power & Light had the property surveyed and the boundaries marked in 1974.

Thus, we agree with the trial court that the Mayronne heirs have established “... continuous, uninterrupted, peaceable, public and unequivocal” possession of the property from 1939 until this attack on their ownership filed August 6, 1980.

For the foregoing reasons, the trial court judgment granting the Mayronne heirs ownership of the above described property is affirmed. All costs of this appeal are to be borne by the Hogan heirs.

AFFIRMED.

EXHIBIT “A”

24TH JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

No. 242-723

Division “L”.

BETTY DUFRENE, et al.

versus

ALICE MAYRONNE, et al.

FILED: _

DEPUTY CLERK

JOINT STIPULATION OF FACTS

NOW INTO COURT, through undersigned counsel, come plaintiffs, Betty Du-frene, et al. (referred to herein as the “Hogans/Savoies”), and defendants, Mrs.

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Related

Saucier v. E. Sondheimer Co.
32 So. 2d 900 (Supreme Court of Louisiana, 1947)
State ex rel. Hughes v. Board of Com'rs of Port of New Orleans
90 So. 419 (Supreme Court of Louisiana, 1922)
Wilkie v. Cox
223 So. 2d 873 (Supreme Court of Louisiana, 1969)
Wilkie v. Cox
222 So. 2d 85 (Louisiana Court of Appeal, 1969)

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612 So. 2d 147, 1992 La. App. LEXIS 4033, 1992 WL 381782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dufrene-v-moore-lactapp-1992.