McClendon v. Thomas

768 So. 2d 261, 99 La.App. 1 Cir. 1954, 2000 La. App. LEXIS 2286, 2000 WL 1390904
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2000
DocketNo. 99 CA 1954
StatusPublished
Cited by3 cases

This text of 768 So. 2d 261 (McClendon v. Thomas) 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
McClendon v. Thomas, 768 So. 2d 261, 99 La.App. 1 Cir. 1954, 2000 La. App. LEXIS 2286, 2000 WL 1390904 (La. Ct. App. 2000).

Opinions

J^FOIL, J.

We are asked to review a trial court’s determination that ownership of a parcel of immovable property was acquired by ten years acquisitive prescription. We reverse.

BACKGROUND

The only issue in this case is the ownership of Lot 169 located in a Denham Springs mobile home subdivision. Most of the facts have been stipulated to by the parties at trial or in their post-trial memo-randa, and are not in dispute.

On July 24, 1987, Collin McClendon purchased a lot in the subdivision from Celia Ladd. The act of sale conveyed the following described property:

A certain lot or parcel of ground, together with all the buildings and improvements thereon, situated in that subdivision of the Parish of Livingston, State of Louisiana, known as EASTOVER MO- • BILE ESTATES, FIRST FILING, and being designated on the official plat thereof prepared by E.E. Evans & Associates, Inc., C.E., dated September 20, 1972, and recorded in Conveyance Book 179, Entry No. 94458, Official Records of Livingston Parish, Louisiana, as LOT NUMBER ONE HUNDRED SEVENTY (170), said Eastover Mobile Estates Subdivision, and having such dimensions and measurements as shown on said plat.

The act of sale further states that the municipal address of the property is “8744 Cheyenne Avenue, Denham Springs, La.,” which is actually the address for the neighboring Lot 169.

In connection with the lot purchase, Collin McClendon’s son, Jack, purchased the trailer Mrs. Ladd had been residing in and moved in soon thereafter. In August of 1995, Collin McClendon attempted to sell his lot and learned he was in possession of Lot 169, not Lot 170 as described in his deed. The McClendons investigated and discovered that several of their neighbors were occupying lots they did not have record ownership of, and they notified their neighbors of the mix-up regarding the lot numbers. Specifically, they learned that Susan Thomas was in possession of Lot 168 but had a deed transferring Lot 169 to her; Earnest Miller was occupying Lot 167 but had a deed transferring Lot 168 to him; and Jimmy Harris was occupying lot 170, although his deed referenced Lot 171.

laCollin McClendon hired a title attorney, who prepared an act of correction in which the four lot owners and the original subdivision developers were to transfer all of their interest in the lot described in their titles to the owner in actual possession of the lots. This document was never perfected.

Instead, Susan Thomas, whose mother was living in a trailer on Lot 168, sent a certified letter to the McClendons advising them she would be charging a rental fee of $125.00 per month as long as they lived on Lot 169. She also filed a rule for eviction against the McClendons, which was later dismissed.

This litigation originated as a possessory action filed by the McClendons against Susan Thomas and her husband in which they sought damages for disturbance of their possession of Lot 169. The Thom-ases answered the lawsuit and filed a re-conventional demand seeking to be declared the owners of Lot 169. The McClendons also claimed ownership of Lot 169 by either title or acquisitive prescription of ten years.

Both sets of parties traced their titles to a common ancestor, Mobile Home/Modular Home Development Company d/b/a East-over Mobile Estates (Mobile Home). Collin McClendon’s chain of title is as follows: [264]*264On February 28, 1978, Mobile Home sold a number of lots to Pat Ru, Inc. This act of sale did not include Lot 169, but did include Lot 170. By act of sale dated February 8, 1979, Pat Ru, Inc. sold a lot depicted therein as Lot 170 to Celia Ladd. However, on September 8, 1981, an act of correction was filed in the Livingston Parish conveyance records changing the lot number from 170 to 169. The act of sale from Celia Ladd to Collin McClendon dated July 24, 1987 describes the property conveyed as Lot 170 but lists the municipal address for Lot 169, and fails to mention the 1981 act of correction.

Susan Thomas’s chain of title began with the sale of Lot 169 from Mobile Home to Kevin and Melissa Peterson by an undated deed filed in the conveyance records on November 16, 1977. The Petersons sold Lot 169 to the Durnins by an act of sale dated July 24, 1980. On April 29, 1994, the Durnins sold Lot 169 to Susan Thomas.

|4When the titles of the parties are traced to a common author, he is presumed to be the previous owner. La.Code Civ. P. art. 3658. Both parties attempted to trace their title to Mobile Home, which is presumed to be the previous owner of Lot 169. The evidence establishes that Mobile Home transferred ownership of Lot 169 to Susan Thomas’s ancestor in title. As the trial court correctly observed, Susan Thomas proved an unbroken chain of title to Lot 169. Because Susan Thomas proved title to the disputed lot, the McClendons could only have acquired ownership of Lot 169 by acquisitive prescription.

The requisites for acquisitive prescription of ten years are: (1) possession for ten years; (2) good faith (3) just title and (4) a thing susceptible of acquisition by prescription. La. Civ.Code art. 3475. By pleading acquisitive prescription, the McClendons had the burden of proving these elements. La. Civ.Code art. 3483; Harry Bourg Corporation v. Punch, 94-1557, p. 4 (La.App. 1 Cir. 4/7/95), 653 So.2d 1322, 1324.

In addition to good faith and actual possession, the title serving as the basis for a plea of acquisitive prescription must be one translative of property. Rawlings v. Stokes, 194 La. 206, 216, 193 So. 589, 592 (1940). A title is just for the purpose of acquisitive prescription when the deed is regular in form, valid on its face, and would convey the property if executed by the owner. La. Civ.Code art. 3483; Harry Bourg Corporation v. Punch, 94-1557 at 4, 653 So.2d at 1325.

For a deed to be translative of title to real estate, it must contain such a description as to properly identify the property so as to transfer its ownership. Wilson v. Head, 97-992, p. 3 (La.App. 3 Cir. 2/4/98), 707 So.2d 127, 128. It is not sufficient that the description in the deed might be construed to transfer the property. Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225, 236 (1947). Rather, one must be able to identify and locate the property from the description in the deed itself or from other evidence appearing in the public records. Harry Bourg Corporation v. Punch, 94-1557 at 4, 653 So.2d at 1325.

| BIn the execution of deeds, the intention of the parties must be gathered from an inspection of the instrument itself, without the aid of extrinsic evidence, if their intentions can be ascertained. If the description is so ambiguous as to leave doubt as to the parties intent, extrinsic evidence may be resorted to as an aid in construction. Robinette v. Myers, 510 So.2d 1332, 1335 (La.App. 3 Cir.1987). See also, Citizens National Bank v. National Union Fire Insurance Company, 597 So.2d 1130, 1131 (La.App. 1 Cir.1992).

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768 So. 2d 261, 99 La.App. 1 Cir. 1954, 2000 La. App. LEXIS 2286, 2000 WL 1390904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclendon-v-thomas-lactapp-2000.