JH Jenkins Contractors, Inc. v. Farriel

246 So. 2d 340
CourtLouisiana Court of Appeal
DecidedJune 2, 1971
Docket8238
StatusPublished
Cited by10 cases

This text of 246 So. 2d 340 (JH Jenkins Contractors, Inc. v. Farriel) 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
JH Jenkins Contractors, Inc. v. Farriel, 246 So. 2d 340 (La. Ct. App. 1971).

Opinion

246 So.2d 340 (1971)

J. H. JENKINS CONTRACTORS, INC.
v.
Joseph J. FARRIEL and Mary Victoria Farriel.

No. 8238.

Court of Appeal of Louisiana, First Circuit.

March 15, 1971.
Rehearing Denied April 19, 1971.
Writ Granted June 2, 1971.

*341 Patsy Jo McDowell, Baton Rouge, for appellant.

Roger M. Fritchie, of Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for appellees.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

In this petitory action, plaintiff claims title to the western 15 acres of a 20 acre rectangular tract of land situated in the SW ¼ of the NE ¼, Section 6, T 9 S, R 6 E, Livingston Parish, and appeals the judgment of the trial court recognizing plaintiff's title to only the center or middle ten acres of the tract, and also decreeing defendants, Joseph J. Farriel and Mary Victoria Farriel, to be owners of the eastern 5 acres by record title, and defendant, Joseph J. Farriel, owner of the western 5 acres by thirty years adverse possession. Defendants have answered the appeal claiming ownership of the entire 20 acre parcel and alternatively contending that plaintiff's claim as to the center 10 acres should be rejected because of plaintiff's alleged failure to establish title thereto. We affirm the judgment below insofar as it decreed defendants owners of the eastern and western 5 acres of the tract in dispute and reverse the judgment decreeing plaintiff to be the owner of the center 10 acres.

*342 The acreage in contention was formerly owned by Simpson H. Sharp, Sr. and his spouse, Nannie Kate Carter Sharp. From these common ancestors, both plaintiff and defendant derive such recorded title as each possesses. Plaintiff's claim of ownership stems from five recorded deeds from various parties purporting to be heirs of Simpson H. Sr. and Nannie Kate Carter Sharp. Each said conveyance recites that the named vendors transfer to plaintiff:

"All of (names of vendors) right, title and interest in and to all immovable property formerly owned by Simpson H. Sharp, Sr. and Mrs. Nannie Kate Carter Sharp in Livingston Parish, Louisiana.
The immovable property herein sought to be conveyed includes but is not limited to all of Seller's interest in and to that property sought to be partitioned in Suits Numbers 17,850, 18,121, 18,122, 18,123, 18,124, 18,125, 18,126, 18,127, and 18,128 on the docket of the Twenty-First Judicial District Court in and for Livingston Parish, Louisiana, which suits are all entitled `J. H. Jenkins Contractors, Inc., v. Wiley H. Sharp, Jr., et al'; and also includes but is not limited to Suit Number 16,490 on the docket of the Twenty-First Judicial District Court in and for the Parish of Livingston, Louisiana, entitled `W. H. Sharp, Jr., and Others v. William Alexis and Others.'"

In 1944, by an unacknowledged, unauthenticated act under private signature, defendants herein purchased from Simpson H. Sharp, Sr. five acres of land described as follows:

"Five (5) acres of land in Section 6 T 9 S R 5 E. Bounded North by Farriel road; South by James Sharp land; East by Bill Brown; West by Simpson H. Sharp, together with all buildings and improvements thereon, less one-half mineral rights reserved by vendor."

Thereafter, on May 19, 1948, defendants' deed was amended to change the range number from 5 to 6, said revision being executed by Nannie K. Sharp, acting as agent of Simpson H. Sharp, by virtue of a recorded power of attorney. It is conceded that the description in defendants' deed covers the eastern five acres of the 20 acres in contention.

Plaintiff's petition alleges defendants' ownership of the eastern five acre portion of subject property, which allegation is admitted in defendants' answer. Notwithstanding this procedural aspect of the case, appellant's brief is devoted in large measure to an attack on defendants' unacknowledged deed to the eastern five acre plot. Also significant is the fact that in appellant's brief and oral argument before this court, it is expressly conceded that defendants have acquired title to the western five acre plot by thirty years adverse possession. In this connection, we note that the record conclusively establishes that defendant, Joseph J. Farriel, and his parents before him, have had continuous, open, peaceable, public and uninterrupted possession as owners of the western five acres of subject tract at least from 1935, when defendant's father built a home thereon, until October, 1969, when this action was instituted, a period in excess of thirty years. Defendant maintains that his father purchased the western five acres from Sharp; that defendant saw the deed which was never recorded, and that the deed was lost in a fire which destroyed the family home in 1955. It is undisputed that the residence was immediately rebuilt on the same site, that is on the western five acres of the property in contention.

Considering plaintiff's admission of defendants' ownership of the eastern and western five acres involved, together with defendants' deed to the eastern 5 acres and established prescriptive title to the western 5 acres, we deem defendant, Joseph J. Farriel, owner of the western five acres of the property involved and defendants, Joseph J. Farriel and Mary Victoria Farriel, owners of the eastern five acres acquired by purchase from Simpson H. Sharp, Sr.

*343 We confine all further discussion to disposing of the question of ownership of the center 10 acres of subject tract.

Plaintiff establishes its title upon the basis of the above mentioned deeds which appear of record herein, together with the judgments rendered in the Successions of Simpson H. Sharp, Sr. and his said spouse. Plaintiff did not offer in evidence the several partition suits mentioned in its deeds. Plaintiff did offer the parol testimony of Wiley Sharp, Jr., one of plaintiff's vendors and also the grandson of Simpson H. Sharp, Sr., to establish that the property in question belonged to the estate of the witness' grandparents and that the various vendors of plaintiff intended to include said property in their conveyances to plaintiff. More precisely, Mr. Sharp testified that he believed the property in question constituted part of the Ouida Alexis tract which the judgments of possession in the Sharp Successions described as "80.30 acres in Sec. 7, T. 9 S., R. 6 E., known as Ouida Alexis Tract." It will be readily noted that the judgment descriptions refer to property located in Section 7, whereas, it is conceded subject tract is located in Section 6, T. 9 S., R. 6 E. Additionally, plaintiff introduced the parol testimony of Mrs. Yvonne Easterly, Deputy Clerk of Court, Livingston Parish, who testified in essence that a check of parish records revealed that subject tract was part of an 80.30 acre parcel known as the Ouida Alexis tract which was assessed to and taxes paid thereon by Simpson H. Sharp, Sr., from 1939 until 1944, when Sharp sold 5 acres therefrom to defendants and that subsequently the remaining 15 acres were assessed to Sharp until his death, and thereafter to Sharp's heirs until 1969. Plaintiff concedes that the judgments of possession rendered in the Sharp successions do not describe either a 15 or 20 acre plot in Section 6, T. 9 S., R. 6 E.

To prevail in a petitory action, plaintiff must rely on the strength of his own title, not the weakness of that of his adversary. Cupples v. Harris, 202 La. 336, 11 So.2d 609.

For plaintiff in a petitory action to make out his title, he must allege a state of facts showing that he has title. Glenn v. West, 151 La. 522, 92 So. 43.

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Bluebook (online)
246 So. 2d 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jh-jenkins-contractors-inc-v-farriel-lactapp-1971.