Mid-State Homes, Inc. v. Knapp

156 So. 2d 122, 1963 La. App. LEXIS 1908
CourtLouisiana Court of Appeal
DecidedSeptember 11, 1963
Docket921
StatusPublished
Cited by11 cases

This text of 156 So. 2d 122 (Mid-State Homes, Inc. v. Knapp) 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
Mid-State Homes, Inc. v. Knapp, 156 So. 2d 122, 1963 La. App. LEXIS 1908 (La. Ct. App. 1963).

Opinion

156 So.2d 122 (1963)

MID-STATE HOMES, INC., Plaintiff and Appellant,
v.
Huey P. KNAPP et al., Defendants and Appellees.

No. 921.

Court of Appeal of Louisiana, Third Circuit.

September 11, 1963.

*123 Walton J. Barnes, Baton Rouge, for plaintiff-appellant.

Richard P. Boyd, Jr., Harrisonburg, for defendants-appellees.

Before FRUGE, TATE and HOOD, JJ.

HOOD, Judge.

Mid-State Homes, Inc., instituted this suit against Mr. and Mrs. Huey P. Knapp and Jim Walter Corporation for judgment ordering said defendants to reform an act of mortgage and a sheriff's deed by changing and correcting the description of the tract of land purporting to be affected by these documents. In due course, a default judgment was rendered by the trial court ordering the defendants to make the necessary changes on the public records to reform the description in each of said documents as demanded by plaintiff.

Shortly after that judgment was rendered, plaintiff obtained the issuance of a rule directing the defendants and the Sheriff of Catahoula Parish to show cause why the judgment of the court should not be complied with, or in default thereof why defendants should not be held to have acquiesced in the corrections which previously had been ordered. Before the rule came up for trial, an intervention was filed by Pasternacks, a partnership domiciled in Concordia Parish, in which the intervenor alleges that Mr. and Mrs. Huey P. Knapp are indebted to it, that such debt is secured by a real estate mortgage affecting the real property claimed by plaintiff (such property being correctly described in that mortgage), and that the mortgage held by intervenor is superior in rank to the claim of plaintiff. Pasternacks prays that plaintiff's demand for a reformation of the sheriff's deed be denied, and that in the event defendants are ordered to correct the description in the mortgage, the reformed or corrected mortgage be effective only from and after the date on which the correction is made. The original plaintiff, Mid-State Homes, Inc., filed an answer to the intervention and a reconventional demand, demanding that the intervention be dismissed and that judgment be rendered against intervenor condemning it to pay damages for delaying the adjudication of this cause.

After trial of the issues presented by these pleadings, judgment was rendered by the trial court decreeing that the mortgage and sheriff's deed be corrected and reformed as demanded by plaintiff, but that "the intervention be allowed and the mortgage and note held by Pasternacks be recognized upon the property subject to all payments heretofore made thereon." Plaintiff has appealed from that portion of the judgment which recognizes the mortgage and note held by intervenor Pasternacks.

The evidence shows that on June 7, 1960, defendants, Mr. and Mrs. Knapp, executed a mortgage securing an indebtedness to Jim Walter Corporation, which mortgage purports to affect a tract of land in Catahoula Parish, Louisiana, which was erroneously described in the mortgage as follows:

Two acres of land situated in the Northeast corner of S½ of SW¼ of Section 27, T 9 N, R 6 E, described as follows:
Beginning at the NE corner of the Vendor's land (Lot 1 of the Knapp partition) being the NE corner of S½ of SW¼ of SE¼ of Section 27, T 9 N, R 6 E; thence South on East line of SW¼ of SE¼ of Sec. 27, a distance of 70 yards; thence West 140 yards; thence North 70 yards; thence East 140 yards to the point of beginning.

The promissory note executed by Mr. and Mrs. Knapp and the mortgage securing it were subsequently assigned by defendant Jim Walter Corporation to plaintiff. The indebtedness was not paid when due, so plaintiff caused executory process to issue, *124 and the property was seized and sold by the Sheriff of Catahoula Parish to the seizing creditor, Mid-State Homes, Inc. The sheriff's deed is dated March 25, 1961, and the same erroneous description which appears in the act of mortgage is also contained in this sheriff's deed.

Sometime after this sale by executory process, plaintiff discovered that the property had been erroneously described in both the act of mortgage and in the sheriff's deed. This suit to correct the description in both of these documents, therefore, was instituted on December 14, 1961. No answer was filed, and in due course a preliminary default was entered and it was confirmed by judgment rendered on May 21, 1962. This judgment, in effect, orders the defendants to execute and to record in the public records such documents as are necessary to amend and reform the act of mortgage and the sheriff's deed so that the description of property as shown in each of said documents is changed and corrected to read as follows:

Two acres of land situated in the Northeast corner of S½ of SW¼ of SE¼ of Section 27, T 9 N, R 6 E, described as follows:
Beginning at the NE corner of the Vendor's land (Lot 1 of the Knapp partition) being the NE corner of S½ of SW¼ of SE¼ of Section 27, T 9 N, R 6 E; thence South on East line of SW¼ of SE¼ of Sec. 27, a distance of 70 yards; thence West 140 yards; thence North 70 yards; thence East 140 yards to the point of beginning.

The only difference between the erroneous description, which appears in the mortgage to the Jim Walter Corporation and in the sheriff's deed, and the correct description of the property which the parties admittedly intended to be affected by those documents is that in the first part of the erroneous description the two-acre tract is described as being in the S½ of SW¼ of Section 27, whereas it correctly should have been described as being in the "S½ of SW¼ of SE¼ of said Section 27. The remaining portion of the description contained in the mortgage and sheriff's deed is correct, and despite the error in the first part of the description, it clearly and correctly shows that the property affected is located in the "S½ of SW¼ of SE¼" of that section.

On September 21, 1961, which was before this suit was instituted, Mr. and Mrs. Knapp executed a promissory note in favor of intervenor Pasternacks, and to secure that note they also executed another mortgage affecting the same two-acre tract of land, but in this last-mentioned act of mortgage the property was correctly described. The mortgage in favor of Pasternacks was recorded on January 3, 1962, which was after this suit was instituted, but before the default judgment ordering the reformation of the earlier mortgage had been rendered. No notice of lis pendens in connection with this suit had been filed prior to the time the Pasternacks mortgage was recorded.

Intervenor contends that the erroneous description contained in the act of mortgage and in the sheriff's deed which plaintiff now seeks to reform was so defective and misleading that neither of those documents could serve as notice to intervenor (a third party dealing with the land) that those documents were intended to affect the property which was subsequently mortgaged to it. Intervenor argues that in accepting the later mortgage from Mr. and Mrs. Knapp it had the right to rely on the public records, and that since the description in the earlier mortgage and sheriff's deed was defective, the registry of those documents was ineffective as to third parties and it could not prejudice the rights which intervenor later acquired with reference to that property.

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Cite This Page — Counsel Stack

Bluebook (online)
156 So. 2d 122, 1963 La. App. LEXIS 1908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mid-state-homes-inc-v-knapp-lactapp-1963.