STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-452
ESTELLE WIGGINS GUNTER RYDER
VERSUS
GLENN EDWARD BELGARD, ET UX.
********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 215,830 HONORABLE F. RAE SWENT, DISTRICT JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Ricky L. Sooter 3600 Jackson St., Suite 106A Alexandria,, LA 71303 (318) 767-0366 Counsel for Plaintiff/Appellee: Estelle Wiggins Gunter Ryder
Richard E. Lee 810 Main St. Pineville, LA 71360 (318) 448-1391 Counsel for Defendants/Appellants: Glenn Edward Belgard Johnna Sue Haynes Belgard GREMILLION, Judge.
The defendants, Glenn and Johnna Belgard, appeal the judgment of the
trial court declaring that the plaintiff, Estelle Wiggins Ryder, is the owner of the
property at issue through acquisitive prescription of ten and thirty years. For the
following reasons, we affirm.
FACTS
The subject 10.97 acres is located in Deville, Rapides Parish, Louisiana.
The land is part of Section 11, which consists of 676.98 acres in Township 5 North,
Range 2 East, which was granted to Benjamin Miller via a patent from the United
States in 1832. The ownership of Section 11 changed hands several times through
1902. In 1904, eighty acres, including the subject acreage, was sold by Elijah Lee to
David C. Gunter, who was married to Janie Bonnette Gunter. Five of the eighty acres
was then sold by David to James R. Howard in 1906. On January 17, 1914, David
sold the south forty acres of the eighty acre tract to his son Avard (Doc) Gunter. The
property description of that sale stated:
Commencing at the South West Corner of Section Eleven (11) being the Benjamin Miller Grant “B” 720 911 Township Five (5) North Range Two (2) East and Thence run N. 20° 50' West Twenty (20) Chains; thence North 69° 10' East Twenty (20) Chains; Thence South 20° 50' East Twenty (20) chains; thence South 69° 10' West 20 chains and being the South half of the land purchased by this Vendor recorded in Conveyance Book “R R” pages 478 from Elizah Lee.
On December 2, 1915, an Act of Exchange was executed between David
and Avard, whereby:
Said David C. Gunter and Avard (Doc) Gunter did decleare that they are desirous of making an Exchange of the two tracts of land above described, the Said Avard Gunter exchanging the South half or forty acres with David C. Gunter for the North half of the 80 acres above
1 described and said affiants did declare that they each to the other do hereby exchange, sell, convey, transfer and set over to the other, the lands now owned by them and above described - the Said David C. Gunter to the Said Avard Gunter, the North half of the Said Eighty acres of land and the Said Avard Gunter to David C. Gunter, the South half of the Said 80 acres and improvements.
Pursuant to this act, David now owned a forty acre tract located in Section ll,
Township 5 North, Range 2 East, with the following property description:
Commencing at the South West Corner of the Benjamin Miller Spanish Grant - B- 720 911, in Township Five (5) North Range Two (2) East and thence run North Twenty degrees and fifty-minutes (20° 50' ) West, Twenty (20) chains; thence North Sixty Nine degrees and ten minutes (69° 10') Twenty (20) chains; thence South Twenty degrees and fifty-minutes (20° 50') East Twenty (20) chains; thence South Sixty nine degrees and and (sic) Ten minutes (69° 10'), Twenty chains, and being the South half of the 80 acres of land purchased by David C. Gunter from Elijah Lee recorded in Conveyance book R R page 478- the Sale from D C Gunter to Avard Gunter, being recorded in book 57- page 499 of the records of Rapides Parish Louisiana.
In 1927, subsequent to David’s death on September 9, 1920, seven of his
children, John, Jake, Jim, Avard, Gene, Hattie, and Mattie sold all of their interests
in his succession to their brother, Robert, a bachelor, particularly the following
described property:
All of that certain tract of land described as commencing at the South West corner of Section Eleven, being the Benjamin Miller Grant “B” No. 911, in Township Five, North Range Two East, Thence North twenty degrees and fifty minutes West, forty chains, thence North sixty- nine degrees and ten minutes East twenty chains, thence South twenty degrees and fifty minutes East forty chains, and thence South sixty-nine degrees and ten minutes West, twenty chains, to point of beginning, containing the quantity of eighty (80) acres; being the same property described in sale of Ellijah (sic) Lee to D. C. Gunter, in Conveyance Book “RR”, page 478, of the Records of Rapides Parish, Louisiana, less that prortion sold by David Gunter to Avard (Doc) Gunter and described as follows: Commencing at the South West corner of Section Eleven, being the Benjamin Miller Grant “B” No. 911, Township Five, North Range Two East, and thence run North twenty degrees fifty minutes West twenty chains; thence run sixty-nine degrees, ten minutes, East,
2 twenty chains, thence South twenty degrees and fifty minutes East twenty chains, thence South sixty-nine degrees and ten minutes West twenty chains, and being the South half of the land purchased by David Gunter in Conveyance Book “RR”, page 478, of the records of Rapides Parish, Louisiana.
On December 28, 1933, Robert married Estelle Wiggins at his home
located on the subject property, where they thereafter resided. Subsequent to his
mother’s death on April 17, 1937, Robert again purchased his siblings’ interests in
David’s succession. These five conveyances, executed on June 25, 1942, September
1, 1942, December 29, 1945, December 21, 1946, and November 25, 1949, contained
the same property descriptions as in the October 1, 1927 conveyance, pertaining to
the eighty acres of property, less and except the forty acres sold by David to Avard.
On July 31, 1948, John B. Hammond sold Robert 2.49 acres of land
located in Section 11, Township 5 North, Range 2 East, which was located in the
southwest corner of the north forty-acres owned by Avard after the execution of the
Act of Exchange with David.
In 1948, Robert commenced selling off portions of the 42.49 acres
owned by him. On January 2, 1948, he sold one acre of land to Dwight Belgard,
which was located on the east side of the Catahoula Lake Road. On July 6, 1951, he
granted a right-of-way easement across his property to the Louisiana Rural Electric
Corporation. On November 29, 1952, he sold eighteen acres of property located east
of the road to his brother, Carl. On March 30, 1955, he sold one acre located in the
southwest corner of his property to Spencer Wiggins. He sold another acre to Shirley
Wiggins on May 25, 1957. Robert died on January 24, 1958. Subsequent to his
death, Estelle continued selling off portions of the property. On April 13, 1965, she
3 declared that Robert had executed a right of way in favor of American Louisiana Pipe
Line Company, which was recorded in the Rapides Parish Conveyance Book on
December 5, 1955. On February 3, 1969, she executed an oil, gas, and mineral lease
in favor of Jack T. Everett on thirty-nine acres located in the southwest quarter of the
southwest quarter less and except one acre in the form of a square in the southwest
corner owned by D. W. Faircloth. On September 18, 1972, she sold one acre to
Donald Wayne Faircloth and 2.2 acres to Edward Belgard. On April 27, 1978, Estelle
sold one acre to Spencer Wiggins. On February 11, 2003, Estelle donated a servitude
of drainage over her remaining 13.29 acres to her niece, Teresa Allen.
On December 23, 2003, Gene Herbert Gunter, Jr. (Gene Herbert), David
Gene Gunter’s grandson,1 conveyed all of the rights, interest, and title he might have
inherited with regard to 11.191 acres of land to Glenn and Johnna Belgard. This
property is part of the 13.29 acres owned by Estelle. Subsequent to their purchase,
the Belgards had the property surveyed, culverts set in place, and attempted to post
“no trespassing” signs around the perimeter.
Thereafter, Estelle filed a Petition for Declaratory Judgment seeking to
have herself declared the owner of the property pursuant to deed acquired from
Robert, through ten and thirty years acquisitive. Following a trial on the merits, the
trial court took the matter under advisement. Subsequently, in written reasons, it held
that Estelle had established her possession of the property and shifted the burden of
proof to the Belgards to prove a superior title. Finding the Belgards unable to do so,
the trial court declared Estelle the owner of the property pursuant to La.Civ.Code arts.
1 David Gene Gunter was Robert’s brother.
4 3473 and 3488.2 Judgment was rendered in this matter on January 18, 2005. This
appeal by the Belgards followed.
ISSUES
On appeal, the Belgards raise five assignments of error. They argue that
the trial court committed legal error by shifting the burden of proof from Estelle to
them when she failed to satisfy the burden of proof for a possessory action after the
trial court held that the subject property was not enclosed on all sides by visible
boundaries. They also argue that the trial court erred in finding that she satisfied the
requisites for ten years and thirty years acquisitive prescription. Further, they claim
that the trial court abused its discretion by not allowing them to file their third
amended answer, in response to Estelle’s introduction of the probate record of
Robert’s succession, and its failure to find the judgment of possession in that
proceeding null and void ab initio.
After reviewing the record, the judgment, and the pertinent law, we find
no error in the trial court’s judgment finding that Estelle proved acquisitive
prescription of thirty years. While we acknowledge that the Belgards’ have raised
valid arguments concerning just title and the validity of Robert’s testament as pertains
to the issue of ten years acquisitive prescription, we need not address those since we
find that she satisfied the requirements of thirty years acquisitive prescription.
Accordingly, we pretermit all discussion pertaining to those issues, except that
concerning the trial court’s refusal to declare the probate judgment absolutely null,
as discussed below.
2 Although the trial court references La.Civ.Code art. 3488, the relevant code article was La.Civ.Code art. 3486, pertaining to prescription of thirty years.
5 THIRTY YEARS ACQUISITIVE PRESCRIPTION
The Belgards argue that the trial court erred in finding that Estelle
satisfied the requirements for proving ownership of the property pursuant to thirty
years acquisitive prescription.
The following precepts apply to acquisitive prescription. Louisiana Civil
Code Article 3486 provides that ownership of an immovable “may be acquired by the
prescription of thirty years without the need of just title or possession in good faith.”
Possession occurs when a possessor takes corporeal possession of an immovable,
with the intent to possess as owner. La.Civ.Code art. 3424. “Corporeal possession
is the exercise of physical acts of use, detention, or enjoyment over a thing.”
La.Civ.Code art. 3425. Accordingly, acquisitive prescription is commenced by
corporeal possession; however, once this requirement is satisfied, civil possession
may follow. La.Civ.Code art. 3476. Most importantly, possession must be
continuous, uninterrupted, peaceable, public, and unequivocal. Id. A possessor who
possesses pursuant to title, constructively possesses an immovable to the extent of his
title. Possession in the absence of a title extends only to that area actually possessed.
La.Civ.Code arts. 3426 and 3487. The party asserting acquisitive prescription bears
the burden of establishing that the codal requirements for proving such have been
satisfied. Phillips v. Fisher, writs denied, 94-0813 (La. 5/6/94), 637 So.2d 1056, 93-
928 (La.App. 3 Cir. 3/2/94), 634 So.2d 1305, writs denied, 94-0813 (La. 5/6/94), 637
So.2d 1056. Moreover, a trial court’s findings with regard to acquisitive prescription
are factual in nature and will not be reversed in the absence of manifest error. Id.
6 Various witnesses testified with regard to the acts of possession
exercised by Estelle over the property at issue. Estelle testified that she married
Robert on the property on December 26, 1933, and has lived there ever since. She
stated that she lived in the original house located on the property until it burned down
and then in the house that replaced it. She stated that the improvements located on
the property in 1933 included, in addition to the house, a large two-story hay barn, a
chicken house, a shop, and a smoke house. She testified that the property south of the
house was used as a pasture land, on which they ran three horses, two mules, and
approximately a hundred head of cattle. She stated that she also kept a hundred
laying leghorn hens. Additionally, Estelle testified that they grew a vegetable garden,
maintained an orchard, and cut wood on the property.
In addition to these physical acts of possession, Estelle also performed
civil acts of possession. She executed an oil and gas lease over the property in 1969,
she sold portions of the property to Donald Wayne Faircloth and Edward Belgard in
1972, and to Spencer Wiggins in 1978. Furthermore, she donated a servitude of drain
in favor of her niece, Teresa Allen, in 2003.
Charles Slay, the former Tax Assessor for Rapides Parish, testified that
he began visiting Robert on the property prior to his marriage to Estelle in 1933. At
that time, he stated that Robert’s original house was located in the northwest corner
of his property. He testified that the house burned down in the early 1950's, but that
it was replaced by another house slightly to the east of the original site. He
recollected that a barn was located on the property, as well as a cattle pen, and that
Robert owned a stallion and ran cows there. Slay further testified that Robert always
7 planted a large field of peas behind his house, which they picked during the summer.
He stated that he visited Robert and Estelle numerous times on their property.
Travis Gunter, Carl’s son, testified that he has known Estelle as long as
he can remember and that he stayed with her and Robert in their original house. He
stated that in addition to their home, they maintained a log barn and a blacksmith
shop on their property. He further testified that they ran cattle and horses on their
property in a pasture which was located behind their home, to the west of Gene
Gunter Road.
Gene Herbert testified that Estelle has lived on the subject property as
far back as he can remember, his date of birth being May 21, 1942. He stated that she
and Robert lived in the original house until it burned, and then in the house built to
replace it. Until 2003, he testified that he never claimed any interest in Estelle’s
property, he never physically possessed it, paid taxes on it, ran cattle on it, or fenced
it.
Edward Belgard, who purchased 2.2 acres of land from Estelle, testified
that he moved onto his property at the time he purchased it on September 18, 1972,
and that he has lived there ever since. He stated that Estelle has continuously lived
on the property since that date.
Robert’s testament was also introduced into evidence. Although
executed on March 18, 1953, and filed into the conveyance records of Rapides Parish
on November 8, 1955, it was not filed for probate until August 4, 2004. In the
testament, Robert bequeathed to Estelle all of his property, including “Forty one &
49/100 (41.49) acres of land in the Southwest corner of Section eleven (11) township
8 five (5) North Range Two (2) East, less and excepting Eighteen acres of land sold to
Carl Gunter as shown in book 443, page 290, with the survey of Irion Lafargue
attached.” An Order of Probate and Judgment of Possession was rendered on August
4, 2004.
After reviewing the evidence and the law, we find that Estelle
commenced possessing as owner the 41.49 acres of land described in Robert’s
testament, less an additional two acres sold by him prior to his death, on January 24,
1958. Prior to that time, we find that the property was possessed by Robert as his
separate property.
By December 2003, when the Belgards’ attempted to disturb her
possession of the 11.191 acres, Estelle had possessed the 13.29 acres remaining from
Robert’s property for approximately forty-six years. “One who holds a deed
translative of title is presumed to possess to the full extent of his title by any act of
possession on his land.” Winjum v. Duplantis, 393 So.2d 405, 407 (La.App. 1 Cir.
1980) (footnote omitted). As Robert’s testament is an act translative of ownership,
Estelle constructively possessed the property to the limits of her title by possessing
only part of the property. La.Civ.Code art. 3426. Thus, Estelle is not required to
prove actual possession of either inch-by-inch possession or possession within
enclosures. Presswood v. Spillman, 04-145 (La.App. 1 Cir. 2/11/05), 906 So.2d 509,
writ denied, 05-0672 (La. 5/6/05), 901 So.2d 1098. Moreover, the “title need not be
valid in order to support a claim of constructive possession.” Yiannopoulos, 2
Louisiana Civil Law Treatise § 305, p. 606 (2d Ed. 2001) (citing Marks v. Collier,
216 La. 1, 43 So.2d 16 (1949)). Thus, even if Robert’s testament is found to be
9 invalid for its failure to include an attestation clause, it still suffices to support
Estelle’s claim of constructive possession.
Accordingly, we find that Estelle has proven that she corporeally
possessed the 13.29 acres continuously, uninterruptedly, peaceably, publically, and
unequivocally for thirty years. The judgment of the trial court is affirmed on this
issue.
PROBATE RECORD
In two assignments of error, the Belgards argue that the trial court erred
by refusing to file their third amended answer in response to a judgment of possession
obtained by Estelle several days prior to this matter proceeding to trial. They further
argue that the trial court erred by not declaring the judgment of possession as null and
void ab initio due to the fact that Robert’s testament failed to satisfy the requirements
for a nuncupative will by public act.
During the hearing, the trial court accepted the Belgards’ third amended
answer on proffer. In its December 28, 2004 written reasons, the trial court ordered
the answer filed into the record, which was done on August 5, 2004. Accordingly,
we find no merit in this assignment of error.
With regard to their second assignment, we find that the Belgards are not
entitled to attack Robert’s will collaterally. In LeGlue Buick, Inc. v. Smith, 390 So.2d
262, 264 (La.App. 3 Cir. 1980), we discussed the law pertaining to absolutely null
judgments:
A judgment is an absolute nullity when there exists a vice of form. LSA-C.C.P. Article 2002, supra and the Official Comment to that article. A person with interest may show such nullity in collateral proceedings at any time and before any court, for absolutely null
10 judgments are not subject to the venue and the delay requirements of the action of nullity. Nethken v. Nethken, 307 So.2d 563 (La.1975); Tannehill v. Tannehill, 226 So.2d 185 (La.App. 3 Cir. 1969), cert. denied [,] 228 So.2d 485 (La.1969); Garnett v. Ancar, 203 So.2d 812 (La.App. 4 Cir. 1967); Franz v. Franz, 315 So.2d 79 (La.App. 4 Cir. 1975); American Bank & Trust Company v. Marbane Investments, Inc., 337 So.2d 1209 (La.App. 3 Cir. 1976). A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. Nethken v. Nethken, supra.
On the other hand, “a final judgment obtained by fraud or ill practices may be annulled ...”. LSA-C.C.P. Article 2004. Such a judgment is not an absolute nullity; the nullity must be properly decreed within the time prescribed. The established jurisprudence of this State requires that such grounds be asserted in a direct action and not raised collaterally. Nethken v. Nethken, supra; Pontchartrain Park Homes, Inc. v. Sewerage and Water Board of New Orleans, 168 So.2d 595 (La.1964). What is meant by a “direct action” is that the party praying for the nullity of a judgment must bring his action by means of a petition; and the adverse party must be cited to appear, as in ordinary suits. LSA-C.C.P. Article 1201, 2001-2006; Nethken v. Nethken, supra; Garnett v. Ancar, supra.
We find that the appellants’ attack on the trial court judgment in this case must be considered a collateral attack. The petition for nullity was filed in the record of an ongoing proceeding, and sought to be made a part of these proceedings. The only judgments which may be collaterally attacked are those which are absolutely null because of a vice of form as provided in LSA-C.C.P. Article 2002.
LSA-C.C.P. Articles 2001-2006 provide the grounds for an action of nullity. These are the exclusive grounds for nullity of judgment. Southern Wheel & Rim Service, Inc. v. Champion Machine Works, Inc., 283 So.2d 328 (La.App. 4 Cir. 1973); C. I. T. Leasing Corporation v. Bar-Tender of Louisiana, Inc., 258 So.2d 228 (La.App. 4 Cir. 1972). Therefore, the facts alleged in the petition must show entitlement to annulment based solely on these grounds. An action for nullity cannot be substituted for a timely appeal. C. I. T. Leasing Corporation v. Bar-Tender of Louisiana, Inc., supra; Levy v. Stelly, 254 So.2d 665 (La.App. 4 Cir. 1971), cert. denied, 256 So.2d 289 (La.1972); Succession of Quaglino, 248 So.2d 380 (La.App. 4 Cir. 1971), writ refused, 252 So.2d 455 (La.1971).
In this instance, the judgment of possession is not absolutely null as it
fails to satisfy any of the grounds set forth in La.Code Civ.P. art. 2002. Thus, a
11 collateral attack by the Belgards fails. Furthermore, La.Code Civ.P. art. 2931
provides that “[a] probated testament may be annulled only by a direct action brought
in the succession proceeding against the legatees, the residuary heir, if any, and the
executor, if he has not been discharged. The action shall be tried as a summary
proceeding.” Accordingly, there was no error in the trial court’s failure to declare the
judgment of possession absolutely null.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
The costs of this appeal are assessed to the defendants-appellants, Edward and Johnna
Belgard.