Harris v. Ferguson

375 So. 2d 712, 1979 La. App. LEXIS 2936
CourtLouisiana Court of Appeal
DecidedAugust 30, 1979
DocketNo. 7106
StatusPublished
Cited by1 cases

This text of 375 So. 2d 712 (Harris v. Ferguson) 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
Harris v. Ferguson, 375 So. 2d 712, 1979 La. App. LEXIS 2936 (La. Ct. App. 1979).

Opinion

DOUCET, Judge.

This suit was instituted by plaintiff, O. M. Harris, against defendant, Danny L. Ferguson, for a judicial partition of eighty (80) acres of land located in Vernon Parish, Louisiana. Defendant has appealed from a judgment of the district court, recognizing plaintiff as owner of an undivided Vsths interest in the tract and defendant as owner of the remaining %ths interest, and ordering a partition by licitation. We affirm.

On appeal, defendant contends: (1) that the trial court erroneously rejected his claim of ownership of the entire eighty (80) acre tract, based on thirty year acquisitive prescription, and, alternatively, (2) that the trial court erroneously refused to recognize his right to collation in effecting the partition.

[714]*714ACQUISITIVE PRESCRIPTION

The eighty (80) acre tract involved in this litigation was once part of two hundred thirty (230) acres owned by defendant’s grandparents, Daniel B. Ferguson and Nancy Helen Ferguson. In addition to the eighty (80) acre tract, there was a larger one, composed of one hundred twenty (120) acres, and a smaller one, composed of thirty (30) acres. In 1933, in the midst of the great depression of the 1930’s, all of the land was adjudicated to the State for unpaid taxes. In 1945, after the deaths of defendant’s grandparents, it was redeemed by defendant’s father and two of his uncles.

The trial court found that plaintiff is the owner of a Vsths undivided interest in the property, which he acquired by a quitclaim deed from three of the heirs of Daniel B. and Nancy Helen Ferguson and/or their surviving children.1 The court further found that the remaining %ths undivided interest had been acquired by defendant, by inheritance from his late father, Robert E. Ferguson, and by quitclaim deeds from the surviving children of the remaining heir.

Defendant argues that in making the above determinations, the trial court erred in failing to recognize his ownership of the entire eighty (80) acres by virtue of thirty year acquisitive prescription. LSA-C.C. Arts. 3499-3505. The prescriptive title which defendant claims is based on an alleged possession of the property, which was begun by his father. At the trial of this matter, he presented evidence, which he contends established that the requisite possession did, in fact, take place.

In order to successfully plead prescription of thirty years, the proponent bears the burden of proving by a preponderance of the evidence that there has been unequivocal, continuous, uninterrupted, public and adverse possession. LSA-C.C. Art. 3500: Gelpi v. Shall, 355 So.2d 1014 (La.App. 4th Cir. 1978); William T. Burton Industries, Inc. v. McDonald, 346 So.2d 1333 (La.App. 3rd Cir. 1977). It is particularly difficult for a co-heir or co-owner, such as defendant, to prescribe against his co-heirs or owners in common. In order to do so, it must be shown that the possession was clearly hostile and that notice was given thereof. Southeastern Public Service Company v. Barras, 246 So.2d 298 (La.App. 3rd Cir. 1971).

This case was tried before the Honorable Stuart S. Kay, who died before rendering a decision. His successor, the Honorable Ted R. Broyles, later reviewed the documentary evidence and a full transcript of the testimony rendered the above mentioned judgment. After the recent decision of our Supreme Court in Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979), it appears to be settled that the manifest error rule is not applicable in a case such as this. Nevertheless, we believe that the following factual findings by the trial court are well supported by the record:

“About 1931, the year defendant was born, his father, R. E. Ferguson, moved into a house which had been built on the 80 acre tract in the late 1920’s. Defendant lived there about thirteen years or until the year 1944, when his father and mother separated (Tr. 44). Defendant left with his mother and eventually moved to Houston, Texas, where he had lived for about thirty-two years as of the trial date.
The house on the 80 acre tract had been built by his father and his father’s two brothers, J. Alfred Ferguson and W. H. ‘Hibby’ Ferguson. Defendant’s uncle Alfred and his wife had lived there for about two years until Alfred built another house to the north of the 80 acre tract (Tr. 88, 89). According to Mrs. J. A. Ferguson, Alfred’s widow, it was Alfred and she who cleared the 80 acre tract, or such portion thereof as was cleared, and they erected some fences on the tract.
[715]*715The evidence further disclosed that following the separation defendant’s father, R. E. Ferguson, left the house on the 80 acre tract to live with R. E.’s brother, W. H. Ferguson, and never returned to live on the land. Some evidence in the record indicates that he left about the year 1944 and even according to defendant’s testimony he left in 1946 (Tr. 50). Mrs. J. A. Ferguson was more specific and testified that following the separation, R. E. Ferguson went to Port Arthur, Texas for about six months and then went to live with his brother and he never did ‘spend the night’ at the house thereafter (Tr. 176, 177).
In an effort, evidently, to show that civil possession continued following the corporeal possession, there was evidence that R. E. Ferguson reforested the 80 acres, cut timber from it, had a cane patch and otherwise used the land as owner. Again, however, the testimony of Mrs. Alfred Ferguson, who seemed more knowledgeable than most, controverts this. She stated that all three brothers, W. H., R. E., and J. A. cut timber from the land and shared in the proceeds. She specifically recalled that they ‘put their father away’ with some of the proceeds (Tr. 179). She further denied any knowledge of any reforestation by R. E. (Tr. 188). As for the cane patch, she indicated that this was a joint venture and that all three brothers were together in this syrup enterprise. (Tr. 189).”

In view of these facts and defendant’s own testimony that his father, Robert E. Ferguson, never at any time put his co-heirs on notice that he was possessing the property with the intention of owning it (Tr. 164), we agree with the trial court that the possession of defendant’s father, on which he relies, was non-exclusive. Moreover, it was not of an adverse or hostile nature, such as will support a plea of prescription. The trial court was, therefore, correct in rejecting the plea of thirty years prescription.

COLLATION

As we noted earlier in this opinion, in addition to the eighty (80) acres involved in this litigation, Daniel B. and Nancy Helen Ferguson owned two other tracts of land, totaling one hundred fifty (150) acres. Apparently, although their successions has not been judicially opened at the time this case was tried, dispositions of those other lands had been made or attempted by their heirs and/or surviving children, from whom plaintiff obtained his title. Defendant argues that since he did not share in the benefits received from those conveyances or distributions, an adjustment should be made by means of collation in the present proceedings. He contends that since the successions of his grandparents had not been judicially opened when plaintiff purchased his undivided interest in the property, he purchased a succession interest and must, therefore, be accorded the status of an heir, from whom collation may be demanded.

Collation is defined by LSA-C.C. Art. 1227 as follows:

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Related

Hawthorne v. Succession of Hawthorne
419 So. 2d 1295 (Louisiana Court of Appeal, 1982)

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Bluebook (online)
375 So. 2d 712, 1979 La. App. LEXIS 2936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-ferguson-lactapp-1979.