Marsh Cattle Farms v. Vining

707 So. 2d 111, 1998 La. App. LEXIS 64, 1998 WL 21781
CourtLouisiana Court of Appeal
DecidedJanuary 23, 1998
Docket30156-CA
StatusPublished
Cited by9 cases

This text of 707 So. 2d 111 (Marsh Cattle Farms v. Vining) 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
Marsh Cattle Farms v. Vining, 707 So. 2d 111, 1998 La. App. LEXIS 64, 1998 WL 21781 (La. Ct. App. 1998).

Opinion

707 So.2d 111 (1998)

MARSH CATTLE FARMS, Plaintiff-Appellant,
v.
Charles L. VINING, Jr., et al., Defendant-Appellee.

No. 30156-CA.

Court of Appeal of Louisiana, Second Circuit.

January 23, 1998.
Writ Denied April 24, 1998.

*113 Leroy Smith, Jr., Tallulah, for Plaintiff-Appellant.

Vicki V. Baker, Tallulah, M. Randall Donald, Monroe, for Defendant-Appellee.

Before HIGHTOWER, GASKINS and CARAWAY, JJ.

GASKINS, Judge.

The plaintiff, Marsh Cattle Farms, claimed it owned an undivided ¾ interest and the defendants owned an undivided ¼ interest in a piece of property in East Carroll Parish. The plaintiff sought to invoke a partition by licitation. The defendants, Charles L. Vining, Jr., Randall E. Vining, Bobbie Jean Donald, and Darlene Duncan, contended that they and the plaintiff each owned a ½ interest in the property and that the property was subject to division in kind. The trial court agreed with the defendants and the plaintiff appeals. For the following reasons, we reverse the trial court judgment and remand for further proceedings.

FACTS

The disputed property is located on the Mississippi River and was originally comprised of approximately 165 acres.[1] However, over the years, due to erosion, there is now only 80-100 acres. The disputed acreage was owned ½ by Charles L. Vining, Sr. and ½ by Gaines Florence. Mr. Vining was married to the defendants' mother, Bobbie Jean Vining Beatty. During the course of divorce proceedings, Mrs. Beatty seized Mr. Vining's interest in the property in satisfaction of a judgment against him. To pay her legal fees, Mrs. Beatty executed a deed to her attorneys, John M. Hester and Mason P. Gilfoil, reciting that she conveyed an undivided ½ interest in the disputed property. The defendants argue that she intended to give only ½ of her ½ interest, or a ¼ interest in the property to the lawyers and showed that Mrs. Beatty paid taxes on ¼ of the property *114 for many years after the deed to Mr. Hester and Mr. Gilfoil. Prior to her death, Mrs. Beatty deeded her interest in the property to her children, Charles L. Vining, Jr., Randall E. Vining, Bobbie Jean Donald, and Darlene Duncan.

In 1988, Marsh Cattle Farms acquired from the heirs of Mr. Gilfoil and Mr. Hester all their right, title and interest in the property. Plaintiffs contend this was a ½ interest in the property as a whole, the defendants contend it was a ¼ interest. In 1990, Marsh Cattle Farms purchased a ¼ interest in the property from another owner. In 1988, the defendants also purchased a ¼ interest in the property from another owner.

On September 12, 1994, Marsh Cattle Farms filed a petition for licitation against Charles L. Vining, Jr., Randall E. Vining, Bobbie Jean Donald, and Darlene Duncan, claiming that the defendants owned an undivided ¼ interest in the disputed property. The plaintiff claimed that the property was not subject to partition in kind and requested a partition by licitation and a public auction.

The defendants answered, asking for a division in kind. They then transferred their interest in the property to the Vining Family Real Estate Trust and moved to substitute that entity as the defendant.

A hearing on the merits was held on December 15, 1995. The plaintiff introduced the documents comprising the chain of title to the property. Paul Marsh, a partner in the Marsh Cattle Farms, testified that the plaintiff believes it owns a ¾ interest in the property and that the north and south halves of the property are not similar in characteristics. He claimed that the south end is higher and has more timber, while the north end is flooded by the Mississippi River for about a month and a half each year.

The plaintiff also presented the testimony of Kirk R. Morley, a real estate appraiser who stated that he had reviewed the property to determine if it could be divided in kind and determined that it could not. After examining maps from the Corp of Engineers and considering the factors of flooding, drainage, wildlife, timber and access, he determined that dividing the property would decrease its value. He estimated that the tract contained about 100 acres and that the south end has timber worth about $5,000.00 or $50.00 per acre. The timber at the north end was worth only about $7.00 per acre. He opined that the entire property was worth about $25,750.00 divided and $30,600.00 undivided. He stated that the property is not subject to division in kind and the highest and best use of the property is for deer hunting.

The defendant introduced the testimony of its own expert in real estate valuation, Earl Banks, who stated that the property has no value for farming, that there is no significant difference in any portion of the property and that it could be subject to division in kind. He stated that the property is worth $250.00-$300.00 per acre, but later said that he would not pay $165.00 per acre for the land and would not try to sell it for more than that.

At trial, the defendant asserted that it owned an undivided ½ interest in the property and not a ¼ interest as contended by the plaintiff. The defendant disputed the contention that the deed from Mrs. Beatty to Mr. Hester and Mr. Gilfoil conveyed to them her entire undivided ½ interest in the property. To establish the ambiguity of the deed from Mrs. Beatty to Mr. Gilfoil and Mr. Hester, purportedly conveying all her interest in the property, Charles Vining, Jr. testified that he accompanied his mother to Mr. Hester and Mr. Gilfoil's law office and that they agreed that the lawyers would receive as their fee ½ of what they recovered for his mother. He also claimed that his mother received the property from his father in satisfaction of a money judgment against him obtained in the course of their divorce suit. Mr. Vining stated that he frequently paid the taxes on the property for his mother and that through the years, he took her to the property on several occasions.

The tax records for East Carroll Parish showed that Mrs. Beatty, Mr. Hester, Mr. Gilfoil, the defendants and the plaintiffs have all been assessed with varying interests in the property over the years. Testimony also showed that the parties had paid the taxes as *115 assessed over the years and Marsh Cattle Farms never questioned the assessment.

On September 16, 1996, the trial court filed a judgment in favor of the defendant, ordering a partition in kind and appointing a notary public to make a division of the property. In reasons for judgment, the court found that the issues presented were the amount of property owned by the defendant and whether the property could be partitioned in kind.

On the issue of ownership, the court noted that the deed from Mrs. Beatty to Mr. Hester and Mr. Gilfoil stated that it was for her undivided ½ interest in the property and that on its face, that document appeared to unambiguously convey all her interest in the property to the attorneys. However, the court found that other documents and evidence in the case established that the deed was ambiguous. The court noted testimony that Mrs. Beatty intended to convey only ½ of her interest in the property to Mr. Hester and Mr. Gilfoil. The court found that the plaintiffs and defendants each own a ½ interest in the property now.

Regarding the type of partition, the court noted that partition in kind is favored and that the burden of proof is on the party seeking partition by licitation to show that the property cannot be divided in kind.

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Cite This Page — Counsel Stack

Bluebook (online)
707 So. 2d 111, 1998 La. App. LEXIS 64, 1998 WL 21781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsh-cattle-farms-v-vining-lactapp-1998.