Harang v. Golden Ranch Land & Drainage Co.

79 So. 768, 143 La. 982, 1918 La. LEXIS 1561

• Court: Supreme Court of Louisiana
• Decided: January 28, 1918
• Docket: No. 20757
• Status: Published

Opinions

Statement of the Case.

MONROE, C. J.

The plaintiff whose name appears in the title and his sister Mrs. (widow) Meunier, prosecuting this petitory action as two of the children and heirs of Louis Harang, obtained judgment decreeing them to be the owners each of an undivided 228»/2B92o interest in an undivided one-third of a tract of land containing 2,314 acres, which, for the purposes of this opinion, is sufficiently designated by the shaded area upon the subjoined “sketch.” The claim, as set up in the petition, includes also the tract bounded by the 80 and 40 arpent lines, the Bayou Coquille, and the line “N 9 W,” as those boundaries appear on the sketch, but as to that tract was not insisted on, since the present defendant is not asserting title thereto, and, as we understand plaintiffs have brought a suit for its recovery against one other person, who is said to be in possession. Defendant sets up title, through mesne conveyances, under a notarial act of April 8, 1880, from Oscar Lepine, who is alleged to have acquired the larger tract in which the land in dispute is included at a tax sale in December, • 1873, followed by an auditor’s deed in 1874, and conveyances from the tax debtors in 1875, which tax sale was confirmed, at the instance of defendant or its author in title, by judgment of the district court for the parish or Lafourche in September, 1910; and it (defendant) pleads the prescriptions of 3, 10, 13, and 30 years, res judicata and estoppel. The trial judge held that the title relied on by defendant included no land to the westward of the line “N 9 W,” as indicated on the sketch, and gave judgment for plaintiffs, from which defendant has appealed. The land represented on the sketch down to the 40-arpent line appears to have been included in a grant made by the French government to Joseph Villars Dubreuil on June 1, 1763; and all the land embraced in that grant was sold in the succession of Dubreuil to his son-in-law, Charles Jean Baptiste Florian, on March 12, 1772, and the grant was confirmed to him in 1806 by decision No. 213' of the commissioners of the bureau of lands of the district of Louisiana, according to which it was supposed to embrace 45.986% arpents though, according to a survey made by A. F. Rightor, deputy surveyor, in October 1839, and approved by the surveyor general of this state on December 14,1S39, it embraced 121.029 acres. Florian (or Fleuriau, as the name most frequently appears in this record) and his wife left two daughters, one of whom, Marie Melanie, married Louis Char-bonnet, and the other, Jeanne Marie, became the wife of Joseph Énoul Dugué Livaudais. Mrs. Livaudais died, and, on August 29, 1912, a partition was effected between her three sons (Philippe, Joseph, and Charles) and her daughter, Marie Jeanne, who' shortly afterward married Louis Harang, and Mrs. Char-bonnet, their aunt, whereby the Livaudais heirs acquired all the land lying to the north of Bayou Vacherie, then, also, called Bayou Cheti Tamaha, and Mrs. Charbonnet acquired all lying to the south of that bayou. The litigants, instead of producing ordinarily certified copies of the act of partition, have filed in evidence copies made by some photographic process, and referred to as “photostats,” which appear to us to be rather poorly executed. They show, however, that the original instrument is remarkable for its omissions. Thus the property partitioned is mentioned merely as “a tract of land used as a pasture, * * * situated in the southwest of Lake Barataría,” on both sides of Bayou Cheti Tamaha, and which the appearers had inherited from their mother and grandmother, Jeanne Catherine Yillars, deceased wife of Charles Jean Baptiste Fleuriau. Not one of the signatures corresponds to the name of the appearer as recited in the body of the instrument, and no- signature of the notary is to be found. But as both sides concede that the partition was effected, and that Mrs. Charbonnet thereby became the owner of the land bounded, as shown on the sketch, north and west, by Bayous Cheti Tamaha, or Vacherie, and Coquille, south, by the 40-arpent line, and east, by the Harang' Canal and the lakes which are called, variously, Barataría, Ouacha, Catahoula, Des Allemands, and Salvador, we accept those conclusions. It appears from the evidence that the tract so bounded embraces somewhat less than 20,000 acres, so that, if the call of the original concession (for 45.986% arpents] be correct, the Livaudais heirs got much the better of the partition, and if the government survey of 1839, calling for 121.029 acres, be correct the advantage obtained by them was stupendous. And, as it also appears from the evidence here adduced that they considered that they had acquired, not only the land lying to the north of Bayou Cheti Tamaha, but that lying to the west of Bayou Coquille, as well, no western boundary having been mentioned in the partition and no other bayou than Cheti Tamaha having been taken into account, it is evident that, whether the advantage obtained by them is correctly represented by the figures stated or not, it was unquestionably great. The act of partition was recorded in the parish of Lafourche on December 19, 1905, 83 years after its execution.

The muniment of title next offered by plaintiffs is an instrument purporting to be an act by private signature executed by Louis and Fleuriau Charbonnet and F. Dugué, for himself and his brothers, bearing date November 17, 1813, and which, at the request of F. Dugué • appearing as the vendee, was registered in the office of Narcisse Broutin, notary in New Orleans, on December 27, 1813, and recorded in the parish of Lafourche on December 14, 1912, some 99 years later. It reads as follows:

“I, undersigned, acknowledge to have sold, ceded and conveyed to Messrs. Phpe Enoul, F. Dugué and Charles Livaudais all my rights in the portion of land situated between the Bayou do la Vaeherie, the lands of the Lafourche and a line which should start from the bank of the Bayou de la Vaeherie, on the other side of the willows that are found at the end of the levee of shells bordering on the said bayou, and pass between the petit bois and the chactos. All, for the sum of $1,000, received cash — obligating- myself to sign an act to the same effect, before a notary, the first time that I should go to the city. At the Vaeherie, this, Wednesday, November 17, 1813.

“[Signed] L. Charbonnet.

“Fleuriau Charbonnet.

“The words five hundred erased, null; the word thousand interlined, approved.

“As well for me as, by procuration, for my brothers. [Signed] F. Dugué.”

An act by the Livaudais brothers and Louis Harang, executed before Lavergne, notary in New Orleans, on January 11, 1820, shows that, as part settlement of a partnership between the appearers, Philippe Livaudais conveyed to his brothers Joseph and Charles his one-third interest in the land as described in the instrument last above quoted, concerning which third the act contains the following recital, to wit:

“Lequel tiers forme le part qui appartient au dit sieur vendeur dans la dite portion du terre, attendu qu'il en 1 fait l’acquisition, conjointment avec les sieurs acquireurs; de Mr. Louis Charbonnet et demoiselle Fleuriau Oharbonnet, par act sous signatures priveés enregistré en eette étude le vingt-sept Decembre, mil huit cent treize.”

From the expression, “en cette étude,” we infer that Lavergne succeeded to the office of Broutin, as notary; but, at all events, there seems no doubt that the act under private signature, thus referred to, was the act of November 17, 1813, which as we have stated, was registered in Broutin’s office on December 27, 1813. The above-quoted act of January 11, 1820, was recorded in the parish of Lafourche September 8, 1900, 86 years after its execution.

By act before Felix D’Armas, notary in New Orleans, of February 26, 1828, Joseph and Charles Livaudais conveyed an undivided one-third interest in the tract described in the act under private signature, so registered in Broutin’s office, to Louis Harang, the father of the plaintiffs, but the conveyance was not recorded in the parish of Lafourche until December 14, 1912, 84 years later.

Blaintiffs offered (subject to defendant’s objection) an act executed before Segliers, notary in New Orleans, on July 19, 1839, whereby Charles Livaudais makes a dation en paiement to his brother Joseph of his third interest in the Vacherie land, as heretofore described, and wherein it is recited that Joseph Livaudais requested the notary to register in his office the act under private signature of November 17, 1813, which is recited in full, and which had been registered, in 1813, in Broutin’s office; the act in which it is thus recited having been recorded in the parish of Lafourche on July 19, 1839, the day of xts execution.

Mrs. Marie Jeanne Touton Enoul Dugué Livaudais, first wife of Louis Harang, died probably in 1833, and in 1837, the parish judge of “Lafourche, interior-,” acting under a commission from the First judicial district court, made an inventory of the property found in his jurisdiction which belonged in community to her heirs and her surviving husband, included in which was “an undivided fourth of the Vacherie tract * * * which Vacherie tract” reads the description, “is situate behind the riparian lots on the left bank of Bayou Lafourche, beginning at the upper limit of Evariste Lepine’s plantation and ending at the lower limit of Madame Cadet Elie’s plantation,” which description locates the property to the westward of Bayou Coquille, as shown on the sketch, and shows that it was part of the land which the Livaudais heirs considered that they had acquired by the partition of 1812. At what time the second wife of Louis Harang died does not appear, but it is shown that he died on December 16, 1859, and that, on June 30, 1868, the plaintiffs herein, with their full sister Mrs. Cherbonnier, presented a petition to the district court for the parish of Jefferson, in which they alleged that he had left five children by each marriage; that, according to his will, the children of the first marriage were entitled to one-third of his estate and those of the second marriage to two-thirds ; that they were children of the second marriage; that the administrator had filed an account showing that he had $11,605.89 in his hands for distribution among the heirs; that the account had been homologated, and that they were each entitled to be paid $1,-547.45%, for which they prayed judgment; and, the administrator acquiescing, there was judgment accordingly, and they were presumably paid. In January, 1913, plaintiffs and others, issue of, or descendants from both marriages, as we assume, presented a petition to the same court, which has not been copied in the transcript upon which they obtained, ex parte, a judgment recognizing them as the sole heirs at law of Louis Harang and Marie Livaudais, his wife, and sending them into possession of the estates of those decedents in certain designated proportions, “and particulax-ly of the following described real estate,” after which follows a description of the property included in the shaded area as shown on the subjoined sketch.

So far as we are able to discover, that property was never inventoried in either the succession of the first Mrs. Harang or in that of her husband, and neither she nor he ever asserted or recorded any title to it in the parish of Lafourche until about two months before the institution of this suit, save as included, by way of recital, in an act between other parties, and have never exercised any dominion over, or paid any taxes on, it. And the judgment purporting to put them in possession of it, being ex parte is, of course, inoperative as to any other person having rights to assert, and is so admitted by plaintiffs, since they are here seeking to be put in possession.

Defendant has also introduced considerable documentary evidence, including the following:

An act of mortgage before D’Armas, notary in New Orleans, of date March 24, 1834, in which the firm of “Dugué Freres & Louis I-Iarang,” composed of Joseph and Charles Dugué (Livaudais) and Louis Harang, acknowledge an indebtedness to the firm of Plique & Le Beau of $27,000, for which the debtor gives its notes secured by mortgage on different pieces of property, including their five-eighths interest, or more, in “the tract of land generally known under the name of ‘the Vacherie’ in the parish of Lafourche, interior, on the left bank of Bayou Vacherie,” excepting therefrom land sold to Derbigny & Le Breton, Collins, Flowers and Nicholas, the undivided two-thirds of another tract having a front of 178 arpents on Bayou Lafourche by 40 arpents in depth, their undivided five-sixths interest in 11 slaves, and other property. The debt was for money borrowed, and seems to have been of rather a pressing character, but it does not appear to have occurred to the debtors to include the land here in dispute in the mortgage; to the contrary they seem to go somewhat out of the way to declare that the “Vacherie” lands found upon the right bank of Bayou Vacherie belong to the Charbonnet family.

An act of sale and partition before Seghers, notary in New Orleans, of date March 31, 1838, which was the result of a suit brought by children of Philippe Livaudais, then deceased, against their co-owners of lands held in indivisión by them, and “commonly called the Vacherie of Messieurs Dugué Livaudais, situated in the parish of Lafourche, interior, and bounded by the inhabited lands fronting Bayou Lafourche, beginning 40 arpents from the bayou, and, on the other sides, by Bayou Boeuf, Bayou des Allemands and the plantation of Charles Derbigny, according to a plan by Bourgerol, deputy United States surveyor of date August 25, 1835,” etc.

The instrument in question contains the recital that the land so described was included in the grant to Dubreuil, the confirmation to Fleuriau, and the partition between Madame Charbonnet and the Livaudais heirs, and for the purposes of the sale it was divided into' 60 lots, of which 6 were sold to “Joseph Énoul Dugué Livaudais,” 6 to the three minors, “Énoul Dugué Livaudais,” and 7, including lot 46, according to the Bourgerol plan, to “Charles Énoul Dugué Livaudais.”

From other instruments offered by defendant and the recitals therein contained it appears that Louis Charbonnet, Juste Barthelmy Charbonnet, and Mrs. Anais Charbonnet, wife of Francois Numa Plique, were the sole heirs of Mrs. Marie Melanie Charbonnet, wife of Louis Charbonnet, and that the entire tract acquired by her in the partition of August 29, 1912, including the land lying between the 40 and 80 arpent lines, was considered as having been inherited and was disposed of by them, or their heirs and successors, or supposed successors, in title as follows:

On October 9, 1843, Louis Charbonnet sold, by the following description, to Francois Numa Plique a one-third interest which, according to the recitals of the act, he had just inherited from his brother Juste Barthelmy Charbonnet, to wit:

“The undivided third of a tract of land known under the name of Vacherie, situated in the pax-ish of Lafourche, interior, in this state and measuring twenty thousand and sixteen and fifty one hundredth of an acre in area; bounded, on the one side by a bayou which, separates it from the property of Mr. C. Derbigny, on the side of the Lafourche, by the property of Mr. Énoul Dugué Livaudais and on the other by Lake Baratarla and the land of the United States.”

On April 27,1850, Plique sold by practically the same description the interest which he had thus acquired to Louis Le Beau.

On April 24, 1851, the one-third interest which had been inherited by Mrs. Anais Plique from Sirs. Marie Malanie Charbonnet, was sold in Mrs. Plique’s succession to Louis Le Beau. On July 5, 1867, the heirs of Louis Le Beau sold to A. B. Charbonnet an undivided one-half of an undivided one-third interest in the property.

On May 15, 1875, the heirs of Louis Le Beau represented by F. Edgar Le Beau, sold the remaining undivided half interest which the decedent had acquired to Oscar Lepine. On October 30, 1867, the succession of Louis Charbonnet sold to A. B. Charbonnet the one-third interest which the decedent had acquired as the heir of his wife.

On October 2,1875, the succession of A. B. Charbonnet sold to Oscar Lepine, by quitclaim deed, “an undivided one-half” or whatever interest the succession might have in the property.

In the sale to Louis Le Beau, in the succession of Mrs. Plique, on April 24, 1851, the description reads:

“An undivided third of a tract known as the Vacherie Charbonnet, of which one-third already belongs to the said Louis Le Beau and the other one-third belongs to the said Louis Charbonnet. The said pasture is composed of twenty thousand and sixteen and 50Aoo (20,0165o/ioo) acres, more or less, in superficies, bounded by the Bayou la Vacherie, which separates it from the plantation, now or late, of Charles Derbigny and which is navigable as far as Lake Ouacha, or Barataría, by Bayou Catahoula, and by lands, now or lately, belonging to Messrs. Énoul Dugué Livaudais, the whole, according to a plan of A. H. Rightor, deputy surveyor.”

In March, 1871, the Derbigny plantation was sold by Mr. Derbigny to the Consolidated Association of the Planters of Louisiana.

In 1870, 1871, and 1872 there was an assessment 5n the parish of Lafourche, in the name of “.Le Beau and Charbonnet,” as follows:

“Twenty thousand (20,000) acres, being back of the plantation of the Consolidated Association of Planters and contains fractions of T. 15 and 16 S. E. D. R. 18 or 10 E.”

In December, 1873, the tax collector, proceeding in accordance with section 4 of Act 47 of 1873, made an adjudication of the land so assessed to Oscar Lepine, and on December 18, 1873, executed a deed, in which he described it as follows, to wit:

“A certain tract of land situated in the parish of Lafourche, interior, and lying back of the plantation belonging to the Consolidated Association of the Planters of Louisiana, in tho settlement known as Vacherie Dugué Livaudais and designated on 'the map of the parish of Lafourche as part of the B. Florian claim and containing fractions of townships 15 and 16, South Eastern district, range 18 or 19, east, the number of acres unknown, but, according to the assessment rolls, the tract of land above described and sold is supposed to embrace an area of about 20,000 acres, the same having been seized for the payment of taxes due by Le Beau and Charbonnet, as owners thereof, according to the tableau and assessment rolls for the years 1870, 1871 and 1S72.”

The auditor’s deed, of date July 23, 1874, contains the same description. Lepine, it appears, went into possession of, and pastured his cattle upon, the entire tract lying to the northeast of the 40-arpent line, as indicated on the sketch, until April 8, 1880, when he, made a sale to John R. Gheens of the cattle and part of the land, the latter being described as:

“All that portion of the following described tract of land lying and being back of the 80-arpent linfe from Bayou Lafourche, to wit: A certain tract of land known and designated as Vacherie Charbonnet, comprising twenty thousand and sixteen arpents and fifty-six hundredths of an acre, in superficies, situated in the parish of Lafourche, in this state, and bounded by the Bayou la Vacherie which separates it from the plantation, now or late, of Charles Derbigny and which is'navigable as far as Lake Washa, or Barataría; by Bayou Catahoula; and by lands, now or late, belonging to Enoul Dugué Livaudais; the whole according to a plan of A. H. Rightor, deputy surveyor. Tho portion of land lying and being in front of the said 80-arpent line is reserved and not included in this sale — was sold by the present vendor to Messrs. Foret and Le Blanc, though the act of sale is not yet- passed.”

Gbeens took over 400 bead of cattle with the land and he and his successors in title pastured their cattle there for a number of years, and discontinued so doing on account of a season of high water, indicating in that way, and otherwise, that they considered that the shaded tract as shown on the sketch was included in the sale from Lepine.

On January 24, 1890, Gheens sold the property to the Golden Ranch Sugar & Cattle Company, and that company, in July, 1910, instituted suit in the district court, alleging that at the time of the tax sale the property appeared to be owned by Louis Le Beau, Arthur B. Charbonnet, and Mrs. George Richard Beard, and praying for citation of Mrs. Beard, whose whereabouts were alleged to be unknown, through a curator ad hoc and for judgment confirming the sale and quieting the title resulting therefrom; and on September 27, 1910, there was judgment accordingly. The property then passed back to Gheens, by whom it was conveyed to Garnett and Morrill, who in November 3, 1910, conveyed it to the plaintiff, together with other lands, by an act before‘Loomis, notary in New Orleans, which declares that:

“The lands herein sold are delineated upon a plat compiled by Daney & Waddill-, civil engineers of New Orleans, duly paraphed by me, notary, and on file and of record in my office.”

The plat thus referred to bears date January 3, 1906, and was prepared under the following circumstances: John R. Gheens and his brother constituted in effect the Golden Ranch Sugar & Cattle Company, and in 1905 they were negotiating with some Chicago capitalists for the-sale of its property, including what had been the Derbigny plantation. The representatives of the prospective purchasers found some objections to the title that was tendered, and, among them, that it did not include the tract here in dispute. Mr. Gheens was of opinion that the title did include that tract, and the negotiations with the gentlemen from Chicago having failed in their purpose, he employed Mr. Waddill, of Daney & Waddill to make a survey of the entire holdings of the Golden Ranch Sugar & Cattle Company, without reference (so Mr. Waddill testifies, though Mr. Gheens denies the restriction) to the line “N 9 W,” and the result of that employment was the compilation above mentioned. The difference of opinion appears to have arisen from the fact that there is in existence a plat of survey with field notes of the entire Fleuriau grant, made by A. F. Rightor, deputy surveyor, on October 18, 1839, which is an official document, duly approved by the Surveyor General, and placed of record in the Land Office, and that there was also- produced during the negotiations mentioned a lithographed auctioneer’s plan, or advertisement, purporting to be a “survey of part of the claim of Charles F. B. Fleuriau,” also by A. F. Rightor, deputy surveyor, whereon appeared the line “N 9 W,” which plan was thought by the Chicago party to be that referred to in the act of sale from Lepine to Gheens, of April 8, 1880, and which line was thought to be that described in the act under private signature of November 17, 1813, upon which plaintiffs predicate-their claim. The particular - copy of the lithograph in question which was offered in evidence, as an ancient document, was produced by Mrs. F. Edgar Le Beau, widow of the gentleman by that name, who testified that she had found it among her husband’s old papers, that she had often seen it in his hands, and that certain pencil memoranda which appear on it are in his handwriting. The paternity of the document is, however, not established; it does not appear ever to have been attached to, or identified with, any act of conveyance, or deposited or recorded in any public office; and, though apparently intended for use as the auctioneer’s advertisement of land to be sold in the succession of Mrs. Plique, could not well have been so used, since it purports to advertise, as the property of that succession, the whole of a body of land of which the succession owned but an undivided one-third, and it attributes to the tract indicated on our sketch as lying to the eastward of the line N 9 W an area of 20.016.56 acres, whereas the entire body of land, including the shaded area and that lying between the 80 and 40 arpent lines, contains considerably less than that acreage, and the particular tract indicated contains only about 12,000 acres. The plan appears to have been taken from the original survey by Rightor, to which was added the line “N 9 W, on the west, or south west side of which is the name Énoul Dugué Livaudais” in pencil, the writing, it is said, being that of F. Edgar Le Beau, the husband of the lady who produced the document. Looking at it, as a document of the kind is ordinarily viewed, i. e., upon the theory that the bottom represents the south side of the lands exhibited, tlie line N 9 W appears to run rather west 9 degrees north than north 9 degrees west, which makes it appear that the “lands of the Lafourche” lie to the south of the line, whereas the line is supposed to have been run N 9 W from those lands, and there lie to the Westward of it, first, the shaded area, and, next, “lot 46, Bourgerol plan,” which was acquired by Charles Énoul Dugué Livaudais in the partition of 1838. Among the lands of the Lafourche it will be observed that there is a tract bearing the name “J. E. D. Livaudais,” which is said to bound the upper tract for a distance of a mile and a quarter, but leaving, as plaintiffs assert, a gap in the boundary on that side, as described in defendant’s title of some four or five miles.

The document now under consideration appears to include all the land represented on our sketch, to the westward of the line N 9 W, and more besides, but the acreage, “20,-016.56 acres,” is inscribed on the tract lying to the eastward of that line. ,It (the document} bears the legend:

“Sale without Reserve of 20,016.56 Acres of Land. Succession of Mrs. Anais Plicque, Wife of P. L. Plicque, by P. E. Tricou, Auctioneer.

“By virtue of an order from the honorable the second district court, * * * will be sold, on Monday, April 7,' 1851 * * * the property hereinafter described:

“A tract of land known as ‘Vacherie Char-bonnet,’ situated in the parish of Lafourche, interior. This land is bounded by Bayou, la Vacherie, which divides it from the plantation of Charles Derbigny and is navigable through its entire course to its junction with Lake Washa, or Barataría; by Lake Washa, or Barataría; by Bayou Catahoula; and by the tract of land, now or formerly, belonging to Messrs. Énoul Dugué Livaudais, the whole according to a plan drawn by A. F. Rightor, deputy surveyor.”

And then follows rather a glowing descrip-' tion of the land, its hunting and fishing advantages, etc.

The act of sale, of date April 24, 1851, before Mazureau, notary, contains the recital that there had been adjudicated—

“to Mr. Louis Le Beau * * * [not the whole property, as advertised, but] * * * the undivided one-third of a tract of land [following the description contained in .the legend on the plan] the whole in conformity with a plan by A. F. Rightor, deputy surveyor.”

The inference to be drawn from the confusion thus disclosed would seem, perhaps, to be that the person who prepared the plan, and, presumably the legend purporting to explain it, proceeded and was written upon the theory that the “Vacherie Charbonnet” consisted of the tract lyjng to the eastward of the line “N 9 W” and north of the 40-arpent line, or “the lands of the Lafourche,” that that tract contained 20,0165 e/100 acres, and that the whole of it was to be sold; and, as that impression was entirely erroneous, it would follow that the sale, as evidenced by the notarial act, was not made according to the plan, nor could have been so made. Beyond that, as the plan was not identified by date, registry or deposit with the act, and as Rightor may have drawn another plan, or many more, no one can say that the particular plan which has been offered in this case is that to which the act refers, and still less can any one say that Mr. Gheens, buying property nearly 30 years later, in the1 parish of Lafourche, where, so far as we are informed, that plan had never been seen or heard of, should have assumed that it, rather than the official survey by Rightor, duly recorded in the proper office, was “the plan of A. F. Rightor, deputy surveyor,” to which his act of purchase referred. In view of the use of the name, “Énoul Dugué Livaudais” in the description, in the sale from Lepine to Gheens, it may be pertinent to explain that the Livaudais brothers, and the sister, seem all to have borne the names Énoul Dugué, and, as was not altogether uncommon in some families of French and Spanish descent, they used their other family names quite frequently to the exclusion of the name derived from their father. Thus in the partition of 1812 Frangois Joseph Énoul Dugué Livaudais appears, by signature, as F. Dugué; Charles Énoul Dugué Livaudais, as C. Livaudais Dugué, Philippe Énoul Dugué Livaudais, as Phpe Énoul Dugué, Marie Jeanne Touton Énoul Dugué Livaudais, as Touton Énoul. In the instrument under private signature of November 17, 1813, upon which plaintiffs rely, the Livaudais brothers are described as Phpe Énoul, F. Dugué, and Chas. Livaudais. The signature representing the three is “F. Dugué.” Mrs. Marie Melanie Charbonnet is represented by the signature “Fleuriau Charbonnet,” and in the act of January 11, 1820, between the Livaudais brothers and Louis Harang, the person who is supposed to have affixed that signature is referred to as “demoiselle Fleuriau Char-bonnet.” When to that we add that the Vacherie Dugué Livaudais was frequently confused with what was properly, after the partition of 1812, the Vacherie Charbonnet, and that the Vacherie Charbonnet was, from that date, partly bounded, on the west and south, by Énoul Dugué Livaudais lands, the fact that it was so described in the sale from Lepine to Gheens is not surprising. The description is at least as definite as applied to the Vacherie Charbonnet, meaning the entire tract acquired by Mrs. Charbonnet in the partition of 1812, as is the. description in the act of partition or that in the act by private signature of November 17, 1813, on which plaintiffs bring this action.

A year or two after the failure of the negotiations with the Chicago people, and five or six years prior to the institution of this suit, Mr. Gheens, acting upon advice, built a fence upon the 80-arpent line, as an additional method of asserting possession of the land here in dispute; and, as plaintiffs allege actual possession in the defendant company, we understand it to be conceded that such actual possession has been maintained at least since the fence was built.

Dominique Harang, plaintiff herein, was born within a mile or two of the land in dispute, and made it his hunting ground, whenever it so pleased him, during the greater part of,his life; but though he and his co-plaintiff attained their majorities as far back as 1868, the title which they now set up was never, as such, registered in the parish of Lafourche until 1912, and no claim under that title appears to have been asserted until within a short time prior to the bringing of this action, in December, 1913.

Opinion.

[1] The question which meets us at the threshold is, whether the plaintiffs have now the right to prosecute this suit, or whether the delay within which that right might have been exercised has not elapsed; in other words, whether the action is not barred by the prescription of 30 years, liberandi causa. “Title xxiii” of the Civil Code treats of “Occupancy, Possession and Prescription”; chapter 3 of that title of “Prescription,” and section 1 of that chapter, under the rubric, “General Provisions,” contains the following:

“Art. 3457. * * * Prescription is a manner of acquiring the ownership of property, or discharging debts, by the effect of time, and under the conditions regulated by law. Each of these prescriptions has its special and particular definition.

“Art. 3458. * * * The prescription by which the ownership of property is acquired, is a right by which a mere possessor acquires the ownership of a thing which he possesses by the continuance of his possession during the time fixed by law.

“Art. 3459. * * * The prescription by which debts are released is a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time without urging his claim.”

Section 2 of chapter 3 deals with the “Prescription by which the Ownership of Property is Acquired,” generally known as the “prescription acquirendi causa,” and we pretermit its consideration, though it also is pleaded and urged on behalf of defendant, further than to call attention to article 3499, which declares that:

“The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.”

Section 3 of chapter 3 deals with the “Prescription which operates a Release from Debt,” and the following articles are to be found therein, to wit:

“Art. 3528. * * * The prescription which operates a release from, debt discharges the debtor by the mere silence of the creditor, •during the time fixed by law, from all actions, real or personal, which might be brought against him.

“Art. 3529. * * * This prescription has also the effect of releasing the owner of an estate from every species of real rights, to which the property may have been subject, if the person in possession * * * has not exercised it during the time required by law.

“Art. 3530. * * * To enable the debtor to claim the benefit of this prescription, it is not necessary that he should produce any title, or hold in good faith; the neglect of the creditor operates the prescription in this case.”

“Art. 3548. * * * All actions for immovable property, or for an entire estate, as a succession, are prescribed by thirty years.”

Under “Title 1. Of Successions” (chapter 6, section 2) we find:

“Art. 1030. * * * The faculty of accepting or renouncing a succession becomes barred by the lapse of time required for the longest prescription of the rights to immovables.”

The article last quoted was applied in Succession of Waters, 12 La. Ann. 97, and it was there held, quoting the syllabus, that:

“The heir who has permitted 30 years to elapse without having done any_ act showing an intention to accept the succession is barred by prescription from any rights as heir.”

Chief Justice Merrick, as the organ of the court, said, in the course of the opinion handed down by him:

“Did the article read, simply, the faculty of accepting an inheritance becomes barred by the lapse of time required for the longest prescription of the rights to real estate, it would present no difficulty, and we could have no hesitation in concluding that the heir who should suffer 30 years to elapse without evincing his intention to accept a succession then opened would lose his right of accepting, and the inheritance could not be claimed by him, into whose hands whosoever it might have gone.”

A difficulty was found, however, in construing the prescription of the “faculty of accepting” with that of renouncing, and, after considering the views of Marcadé and other French commentators, with no satisfactory result, the court said:

“We therefore, conclude that the Legislature intended to declare, in one part of the article, that, if he who is called to an inheritance is silent for 30 years, and does no act evincing his acceptance of the succession, he is barred by prescription. We do not find it necessary to put any construction upon the second portion of the article. It will be in time to consider the difficulties presented by it whenever the case arises in which their explanation, if possible, is required.”

Mr. Justice Spofford, in a concurring opinion, seems to reach the conclusion that, construing the provisions of the article in question with the provisions of other articles of the Code, as well as inter sese, it is impossible to apply the prescription of the faculty of accepting without also giving effect to the prescription of the faculty of renouncing, differing in that respect from Marcadé, who held that the similar article of the Code Napoléon merely established a prescription against the right to choose between acceptanee or renunciation, and operated an acceptance at the end of the period:

“I think,” said the learned justice, “the Legislature of Louisiana intended, in article 1023 [now 1030], to fix a term of prescription against the right of acceptance, and to intimate the consequence of its lapse without an acceptance; that consequence, I think, is that the suecessible becomes a stranger to the succession.”'

We are not here dealing with the prescription of the faculty of accepting or renouncing a succession which is a faculty that may be exercised, at any time, by any person, sui juris, without let or hindrance from or awaiting the action of, any other person. The plaintiffs in this case accepted the succession of their father in 1868, when they demanded and obtained judgment for their respective shares of the assets of the succession, then in the hands of the administrator, but, having done so, they thereafter remained silent for 45 years, making no claim to, and bringing no action for the recovery of, the immovable property which they now allege devolved on them by virtue of that acceptance, and the action which they now bring appears to be one which the law declares that they have no standing to bring. Whilst, however, in the matter of the prescription of the faculty of accepting or renouncing a succession, a definite point of departure is established by the death of the de cujus, and the heir who desires to accept or renounce is not obliged to find another person, contradictorily with whom to take such step, the bringing of an action involves the finding of a cause of action and of a person against whom it may be asserted; and, until the cause and the person are found, and the action will lie, it can hardly be said that any prescription will run against the right to bring it. .It is true that article 3459 declares that “the prescription liberando causa, or that by which debts are released, is a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time without urging his claim,” but a release from debt implies the existence of a debtor, and in the matter of immovable property implies, in the case provided for by the article, the existence of one who withholds the property from the owner, under an adverse claim, and which therefore requires the bringing of an action for its recovery. If, then, during 30 years or a longer period, no one asserts, or pretends to have acquired, any adverse rights to such property, whether of title or possession, and the rights of the owner are not thereby challenged or invaded, no occasion can arise for his breaking his silence concerning them, since, under such circumstances, he is at liberty to exercise or enjoy them in his own way. From the moment, however, that the rights of the owner, not in possession, are challenged, or invaded, by one who sets up an adverse claim of title, or possession, the relation of debtor and creditor, within the meaning of the law declaring the prescription liberandi causa, is established, and if the pretensions of the debtor are of such a character as to authorize or require an action at law, on the part of the creditor for the vindication of his rights, the period, at the end of which the prescription against such action becomes effective, begins and, if the creditor remains silent until it is completed, he loses, not only his right to complain that the title asserted by the debtor is defective, or no title, or that his possession is not such as to enable him to hold the property as owner, but the right to bring any action at all, since the prescription operates as “a peremptory and perpetual bar to every species of action, real or personal,” in which his complaints might be urged. “Prescription attaches to a right from the moment that it can be exercised.” Andrews v. Rhodes, 10 Rob. 53; Darby v. Darby, 120 La. 850, 45 South. 747, 14 L. R. A. (N. S.) 1208, 14 Ann. Cas. 805. “To enable tlie debtor to claim the benefit of this prescription it is not necessary that lie should produce any titlenor is it necessary that be should hold in good faith; nor, if possession be relied on, does it make any difference whether it he actual or constructive.

“The prescription which operates a release from debts discharges the debtor, by the mere silence of the creditor during the time fixed by law, from all actions, real or personal, which might be brought against him.” The right which plaintiffs are here asserting might have been exercised in 1873 or 1874, when Oscar Lepine recorded his tax title and went into possession of the property which had been assessed to Le Beau and Charbonnet as embracing an area of about 20,000 acres, and which must have included the tract in dispute in order to have embraced that area. To the contention that the description did not identify the property and that Lepine did not take actual possession of the tract in dispute, the answer is that he went into possession of the property which had been acquired, and was held, by Le Beau and Charbonnet, under recorded titles, as the “Vacherie Charbonnet”; that no other title to the property so described was at that time recorded in the parish; that, whether the tract in dispute was then included in the Vacherie Charbonnet or not, he had good reason to believe that it was, and, acting upon that belief, turned his cattle loose, .to graze upon that tract as upon any other part of the property, and later sold, or agreed to sell, to Eoret and Le Blanc the tract lying between the 80 and the 40 arpent lines, which is as much a part of the land described in the title set up by plaintiffs as the tract included in the shaded area, and in fact was actually claimed by them in this suit, and is now claimed in another suit against other defendants. Moreover, Gheens considered that the tract in question was included in his purchase from Lepine, and from that time (1880) has always assumed the quality and exercised the rights of an owner, all to the knowledge of the plaintiff, Dominique Harang, as will be understood by the following testimony given by Harang, in an examination by his own counsel, to wit:

“Q. Mr. Harang, did you ever erect a cattle shed, or cattle pen, on the land claimed by Mr. Gheens? A. Yes, sir. Q. Did you ever converse with Mr. Gheens with reference to the destruction of that cattle shed? A. Yes, sir. Q. Please relate to the court what took place on that occasion. A. Mr. Gheens called at my house and told me that he heard that I had erected a pen on his property. I told him that was true, I had erected a pen, but- that I did not know that it was his property. He claimed that it was, and that he was coming there and burn it, and I told him that, whenever he felt ready, if he would notify me of the day and hour, I would meet him with a can of five gallons of gasoline and help him burn it. I asked him if he really meant what he said; he smiled and said, ‘Yes.’ Q. What year was that? A. 1882 or 1883.”

On his cross-examination, he said that, as subsequently ascertained, the pen w-as not on the land claimed by Gheens, but was on the tract lying between the 80 and 40 lines, which had been sold by Lepine to Eoret and Le Blanc.

Our conclusion then is that the prescription of 30 years liberandi causa is applicable to tbe case, and should have been sustained. To the contention that its application amounts to a taking of plaintiffs’ property without due process of law we answer, in the language of the Supreme Court of the United States, quoted with approval by this court, as follows:

“Prescription is a thing of policy, growing out of the experience of its necessity; and the time after which suits or actions shall he barred has been, from remote antiquity, fixed by every nation, in virtue of that sovereignty by which it exercises its legislation for all persons and property within its jurisdiction.” M’Elmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177; Terry v. Heisen, 115 La. 1083, 40 South. 461.

For the reasons thus assigned, the judgment appealed from is set aside and annulled, the Remands of the plaintiffs rejected, and this suit dismissed at their cost in both courts.

O’NIELL, X, dissents. PROVOSTY, X, dissents and hands down reasons. See 79 ..South. 777. LECH®, X, concurs in the decree.