Quatre Parish Co. v. Beauregard Parish School Board

57 So. 2d 197, 220 La. 592, 1952 La. LEXIS 1109

• Court: Supreme Court of Louisiana
• Decided: January 14, 1952
• Docket: 40198
• Status: Published

Opinions

McCALEB, Justice.

Quatre Parish Company, Inc., claiming ownership of the S% of the SEJ4 and the S% of the SW^, Section 19, T. 6 S., R. 8 W. of Beauregard Parish, seeks damages in the sum of $6362.43 against Beauregard Parish School Board and Gross & Janes Company as a consequence of the alleged illegal cutting and removal of timber from the property by defendants.¹ The defendants admit the cutting of timber by Gross & Janes Company but deny the trespass, asserting that the School Board is the true owner of the land and, as such, has rightfully sold the timber thereon to Gross & Janes Company. The School Board further pleads in reconvention for a reformation of the tax deed, by virtue of which it allegedly acquired the property, to correct an error, in description of the land. It, however, acknowledges that, if its claim of ownership is not maintained and judgment is rendered against Gross & Janes Company, then the latter is entitled to a decree in warranty against it under the timber sale contract.

After .a trial of the case before a jury ² a verdict was returned in favor of defendants and, following the entry of a conformable judgment, plaintiff prosecuted this appeal. After the case had been lodged in this Court, plaintiff corporation was dissolved and the former shareholders thereof, John' Albert Bel and others, were substituted as parties’ appellant by appropriate proceedings.

A statement of the pleadings discloses that the primary question for decision is the ownership of the real property in suit. Appellants and the School Board deraign their titles from a common author, Jules Corsey, who procured the Sj¡4 of the SE*4 and the Sj/2 of the SWJ4 of Section 19, T. 6 S., R. 8 W. La.Mer. by patent from the United States on July 3rd 1897. Plaintiff acquired the land, as correctly described in the Corsey patent, by deed from Erause and Managan Lumber Company dated February 12th 1937, registered in the conveyance records on March 12th 1937, the latter having previously purchased by deed, containing the same description, dated September 7th 1911 (registered in the conveyance records September 13th 1911) from the widow and heirs of Jules Corsey.

The School Board’s title emanates from a tax deed, dated December 21st 1901, wherein John A. Perkins, Sheriff and Tax Collector of Calcasieu Parish, adjudicated to the Calcasieu Parish School Board certain property, assessed in the name of “J. Corsey” for unpaid school taxes of 1900, described as “S.y2 S.E.y4, S.% S.W.%, 19-6-9”. This deed was registered on January 6th 1902. By act 8 of 1912, the Parish of Beauregard was created from a portion of Calcasieu Parish and the Legislature conveyed all public lands to the new parish. Hence, by virtue of that statute, the defendant School Board got the property adjudicated at the tax sale in 1901, which is described as being located in- Range 9 West instead of Range 8 West, as designated in the Corsey patent.

The contention of the School Board is that this mistake in the range is of no consequence in view of the fact that the conveyance records reveal that the only property owned by Jules Corsey in Calcasieu Parish, was located in Range 8 which otherwise contained the same sectional and township lines and numbers. And it is further maintained that, under the statutory law respecting tax sales — Sections 1, 2 and 3 of Act 140 of 1890, as amended, LSA-R.S. 47:2181, and Section 4 of the same Act, LSA-R.S. 48:2184 — and the jurisprudence — Willis v. Ruddock Cypress Co., 108 La. 255, 32 So. 386 and other cases —³ it is well settled that an error of this sort in the description is immaterial and that the conveyance is valid where the property intended to be sold can be readily identified.

Appellants do not dispute either the force of the statutory law or the jurisprudence relied on by the School Board. Indeed, they concede, for the purpose of this decision, that, as between Corsey (the tax debt- or) and the School Board, the erroneous designation of the range did not deprive the latter of title to the property intended to be conveyed. They assert, however, that, since they and their authors in title were third persons purchasing on the faith of the public records, they were not put on notice by the registration of the tax deed and are not bound thereby as that deed does not describe the property which they subsequently acquired. .

The point is well taken. It is rudimentary in our law that all sales, contracts or judgments affecting immovable property which are not recorded shall be “utterly null and void, except between the parties thereto”. Articles 2265 and 2266, Civil Code. Actual notice by a purchaser of a prior conveyance of the property by the grantor cannot foe regarded as the equivalent to registration in this State. McDuffie v. Walker, 125 La. 152, 51 So. 100; Baird v. Atlas Oil Co., 146 La. 1091, 84 So. 366; Loranger v. Citizens’ Nat. Bank, 162 La. 1054, 111 So. 418; State ex rel. Hebert v. Recorder of Mortgages, 175 La. 94, 143 So. 15 and Martin v. Fuller, 214 La. 404, 37 So.2d 851. In the case at bar, it appears that the tax deed under which the School Board claims was duly registered in the conveyance records of Calcasieu Parish. But, since that deed described a tract situated some five or six miles distant from the land in contest (located in Range 8 W), its registry was wholly ineffective as to third persons buying on the faith of the public records.

The determination of whether the registry of a deed containing an erroneous description is sufficient to place third persons on notice of the conveyance, depends principally upon the nature of the mistake. If the description is faulty or vague but not so inaccurate so as to be misleading, it may serve as notice to third persons, depending upon the particular wording of the act.⁴ But where, as in this case, the deed actually describes a tract of land different from that intended to be conveyed,⁵ its registration cannot be regarded as furnishing notice to third persons who subsequently acquire from the grantor under a correct description of the property. This distinction is well established in our jurisprudence; it is tersely stated in White v. Ouachita Natural Gas Co., 177 La. 1052, 150 So. 15, 17, thus:

“Therefore, whilst an unrecorded deed can have no effect whatever as to third persons, the same is not true where the deed is recorded but contains only an inaccurate or faulty description of the property ibut not so inaccurate or faulty as to be actually leading. Hence when the only description in a mortgage was ‘one large property or tract at the corner of Orleans and Bourbon Streets’ without any other boundaries given, this was held sufficient to put a purchaser on his guard. Roberts v. Bauer, 35 La.Ann. 453, citing City Bank [of New Orleans] v. Denham, 7 Rob. 39, and Ells v. Sims, 2 La.Ann. [251] 253. See, also, Lee v. Long, 166 La. 1084, 118 So. 320.

“Of course where the description in the recorded deed is so misleading that it actually describes accurately some other property than that mortgaged or sold, a purchaser is not only not put on his guard thereby, but is actually put off his guard, and in such case a resort to outside evidence would have the effect not merely of making the description certain, but of actually changing the record; and this cannot be allowed. Ducre v. Milner, 165 La. 433, 115 So. 646; Sentell v. Randolph, 52 La.Ann. 52, 26 So. 797; Haas v. Fontenot, 132 La. 812, 61 So. 831; Roussel v. Railways Realty Co., 132 La. 379, 61 So. 409, 833; Williams v. Raymond, 163 La. 764, 112 So. 713”.

So, in the case at bar, in view of the fact that the tax deed accurately describes an entirely different tract of land from that intended to be conveyed, its registry was ineffective as to third persons.

Counsel for the School Board earnestly argue that appellants’ position should not be maintained. They say that, since the public records revealed that the only property owned by Corsey was located in Range 8 West and since the property is correctly described except as to the range, appellants and their authors in title were put on notice as a casual examination of the public records would have revealed the glaring error in the range line.

We are not in accord with this suggestion, which is unsupported by authority and disregards, we think, the fundamental necessity for strict adherence to the law of registry. Appellants and their authors in title were bound only by Corsey’s prior alienations of the land, located in Range 8 W., to which they obtained title; no duty in law was imposed on them to determine whether Corsey owned the tract of land described in the tax deed, which lies some five or six miles from the land in contest, nor were they required to conclude that, when Corsey’s land (of similar dimensions but described as being in Range 9) was adjudicated for taxes, a mistake was made in the tax deed and that the land actually intended to he adjudicated was that in Range 8.

Counsel for the School Board, in support of their contention that the erroneous description contained in the tax deed sufficed as notice to appellants, have cited the cases of Goertz v. Menard, La.App., 168 So. 747, Gouaux v. Beaullieu, 123 La. 684, 49 So. 285 and Willis v. Ruddock Cypress Co., supra. A reading of these authorities will readily disclose that they are inapposite for in none of them was the law of registry pertinent to the conclusion reached; it is neither mentioned nor discussed.

Being of the opinion that appellants are the lawful owners of the land, we consider the question of the damages to which they are entitled by reason of the admitted cutting and removal of timber therefrom by Gross & Janes Company under its contract with the School Board. Appellants, in their pleadings, claim the following items:

$4,000 —For damages to young timber resulting from negligence in felling and removing trees.

$1,053.83 — Value of 84,306 board feet of timber.

$ 793.60 — Value of 248 — 40 Ft. sticks of timber, and

$ 515.00' — Value of 103 — 50 Ft. sticks of timber.

All of the totals upon which the above items are based, except the claim for damage to young timber, have been estimated on the theory that defendants were in moral bad faith, in which case they would be liable for the manufactured value of the timber without allowance of any deductions for costs and expenses. The defendants, on the other hand, declare that they are liable only for the stumpage value of the timber cut and removed and, on this score, the School Board admits that it has received from Gross & Janes Company the sum of $768.30, representing, it contends, the fair stumpage value of the timber.

We find at the outset that the proof of appellants’ claim for damage to young timber resulting from the negligent cutting by Gross & Janes Company is too speculative to permit recovery. Hence, we pass on to a consideration of the other items.

It is settled in this State that .the measure of damages allowable for the unlawful cutting of timber is the converted value of the timber without allowance or deduction for costs and expenses if the trespass has been reckless and willful. Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847 and cases there cited. But it is manifest that moral bad faith does not exist in this ca.se as the School Board had a title to the property and it is only because of its inferiority to the title of appellants that defendants are liable for trespass.

Since the School Board had a sufficient title to warrant the belief that it was owner, it is clear that, when it sold the timber to Gross & Janes Company, it was presumably acting in good faith and all timber cut by Gross & Janes, prior to its knowledge of the claim of ownership of Quatre Parish Company, may be said to have been cut and removed in good faith.⁶ However, the record in the case shows that Quatre Parish Company formally notified the School Board of its claim to the land on three occasion's, to wit, September 24th, October 23rd and November 28th. And yet, despite this, Gross & Janes Company continued to cut timber until approximately 975 trees were felled and removed. In our opinion, this places defendants in the category of trespassers in legal bad faith, which obtains When the trespasser believes himself to foe the owner but should have known otherwise from information available which would have placed a reasonably prudent-man on notice. Kennedy v. Perry Timber Co., supra. When it is considered that the tax deed, upon which the School Board relied, was dated December 21st 1901 and that said Board, for a period of over 45 years before the cutting had never at any time made claim to the land, we think that it acted at its peril in permitting continuanee of the timber operations after it received notice of an adverse outstanding title. Accordingly, we hold defendants in legal bad faith, rendering them liable for the converted value of the timber less the actual expenses incurred by them in its manufacture. Kennedy v. Perry Timber Co., supra, and Blanchard v. Norman-Breaux Lumber Company, Inc., 220 La. 633, 57 So.2d 211. However, we find it impossible to assess the damages to which appellants are entitled — for, while there is evidence that all of the timber cut from the land was converted into crossties, 867 — 6 inch ties and 2,555 — 7 inch ties, the record is barren of proof exhibiting either the price obtained by Gross & Janes Company for these ties or the actual cost and expenses incurred by it in converting the timber. Because of this, the case will be remanded for the purpose of permitting the parties litigant tO' submit any and all such evidence on the question of damages as may be proper.

The judgment appealed from is reversed and it is ordered that this cause be remanded to the district court for further proceedings conformable with the views herein expressed. The defendants are to pay all ■costs of the proceedings.

1 . L. O. Cole and Harry Burnitt were also originally named as defendants but suit was dismissed as to them prior to trial.

2 . Defendants prayed for a trial by jury.

3 . Weber’s Heirs v. Martinez, 125 La. 663, 51 So. 679; Vannetta v. Busbey, 131 La. 681, 60 So. 76; Landry v. McWilliams, 135 La. 655, 65 So. 875; Schwartzenberg v. Schwartzenberg, 138 La. 294, 70 So. 230; Hollingsworth v. Poindexter, 156 La. 621, 100 So. 790; Nebraska-Tensas Co. v. Moritz, 157 La. 174, 102 So. 195; Pierson v. Castell Land & Harbor Co., 159 La. 158, 105 So. 274; Schultz v. Kellar, 17 La.App. 651, 136 So. 220, 223; Cannon v. Hart, La.App., 154 So. 745; Gayle v. Slicer, 188 La. 940, 178 So. 498; Tillery v. Fuller, 190 La. 586, 182 So. 683; Jackson v. Irion, 196 La. 728, 200 So. 18, 133 A.L.R. 566 and Egle v. Constantin, 198 La. 899, 5 So.2d 281.

4 . Whether a vague description will convey notice to third persons must remain essentially a question of fact, each ease depending upon the particular delineation of the land. See Daigle v. Calcasieu National Bank, 200 La. 1006, 9 So.2d 394.

In Bender v. Chew, 129 La. 849, 56 So. 1023, it was held that the recitation in the deed that the property transferred comprised 1320 acres more or less when, as a matter of fact, only 1280 acres were described, was insufficient to bind third persons notwithstanding the statement that the land being conveyed was the same land patented to one Roots by the State of Louisiana on June 21st 1884. To the same effect, see W. B. Thompson & Co. v. McNair, 199 La. 918, 7 So.2d 184.

5 . According to the record, the S% of the SE% and the S% of the SW14 of Section 19, T. 6 S., Range 9 W., accurately describes a tract of land owned by Edge-wood Land & Logging Co. Ltd. under a complete chain of title stemming from a U. S. patent.

6 . Appellants claim that approximately 20 trees had heen felled at that time.