Schexnayder v. Duhon

163 So. 2d 393, 1964 La. App. LEXIS 1580
CourtLouisiana Court of Appeal
DecidedApril 21, 1964
DocketNo. 1127
StatusPublished
Cited by5 cases

This text of 163 So. 2d 393 (Schexnayder v. Duhon) 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
Schexnayder v. Duhon, 163 So. 2d 393, 1964 La. App. LEXIS 1580 (La. Ct. App. 1964).

Opinion

FRUGÉ, Judge.

This is a petitory action brought by Ode-once Schexnayder, who claims title to certain property located in Abbeville, Louisiana. The land in dispute measures approximately 20 feet north and south and 125 feet east and west.

The pertinent facts are as follows:

1.The land in question is part of a city block in Abbeville. The entire block was originally owned by the Sawyer family. The block measures 230 feet north and south. We are concerned only with the eastern 150 feet of the block, which is bounded north by Wabash Street, east by Alley Street, south by Fairmount Street, and west by other property owners whose designation is unimportant to this suit.

2. The Sawyers decided to divide the block into lots. They sold one lot on Fair-mount Street measuring 50 feet east and west and 100 feet north and south to Ernest Williams, also called Levy. This lot was approximately 75 feet west of Alley Street.

3. On June 9, 1937, the Sawyer family sold a lot 50 feet east and west by 100 feet north and south to Ophelias Duhon, father of defendant Lenix Duhon, Sr. The lot was on Fairmount Street and was adjacent to and east of Ernest Williams’ lot. The lot was described as follows:

“That certain lot or parcel of ground lying and being situated in the Town of Abbeville, Vermilion Parish, Louisiana, having a front on street of Fifty Feet on South line, by a depth of One Hundred Feet Between parallel lines, and being bounded on the North by vendors, East by vendors, South by said street on which it fronts, and West by Ernest Williams.”

This left the Sawyers owning all of that portion of the block which we are concerned with in this suit except for the lots sold to Williams and Duhon. The Sawyers’ land included twenty-five feet of frontage on Fairmount Street on the southeast corner of the block.

4. On November 10, 1939, Ophelias Du-hon sold his lot to Lenix Duhon, Sr., describing it as follows:

“One certain piece or parcel of ground situated in the Sawyer Annex to the Town of Abbeville, Vermilion Parish, Louisiana, measuring Fifty feet front on Fairmount Street, by the depth of One Hundred feet North and South be[395]*395tween parallel lines and being bounded on the North by Sawyer or assigns, South by Fairmount Street, East by Sawyer or assigns and West by Ernest Williams, or assigns.
Being same property acquired by Ophelias Duhon from Jonaus Sawyer and others as per deed recorded in Book 133 of Conveyances, at page 147, under No. 62306, Records of Vermilion Parish, Louisiana.”

5. On January 7, 1942, Lenix Duhon, Sr. bought from the Sawyers a parcel of land on the northeastern corner of the block in question and in the act of sale the land was described as follows:

“That certain parcel of ground lying and being situated in the Town of Ab-beville, Vermilion Parish, Louisiana, having a front of One Hundred and Fifty (ISO) feet on a public street by a depth between parallel lines of One Hundred and Ten (110) Feet, more or less, and being bounded North by said public street, East by vendors herein, South by vendee herein, and West by vendors herein.”

6. On April 28, 1943, Lenix Duhon, Sr., sold a portion of the land he acquired in 1942 to Olita Trahan and described that portion as follows:

“That certain lot or parcel of ground lying and being situated in the Town of Abbeville, Vermilion Parish, Louisiana, having a front of One Hundred and Twenty Five (125) Feet on a public street, by a depth between parallel lines of One Hundred and Ten (110) Feet, and being bounded on the North by the said public street, on the East by a Street, on the South in part by Ernest Levy, and in Part by vendor herein, and on the West by Mary Sawyer, wife of Felix Walker.”

7. In 1943 Olita Trahan fenced off a 20 feet north and south by 125 feet east and west strip immediately south of her property and used it for a pasture. This is the land in question in this suit.

8. In 1957 Lenix Duhon, Sr., moved the fence, indicating that the 20 feet by 125 feet strip belonged to him. It has remained in the possession of the defendants since that time.

9. On April 30, 1958, Olita Trahan purchased the 20 feet by 125 feet strip in question from the Sawyers, on the assumption that the strip had never been alienated by the Sawyers. The sale described the land as follows:

“A certain lot or parcel of ground lying and being situated in the City of Abbe-ville, Vermilion Parish, State of Louisiana, having a width, North and South of twenty (20) feet, more or less, by a length, East and West, of one hundred twenty (120) feet, bounded on the North by Olita Trahan, purchaser herein, East by an alley, South by Lenix Duhon and Ernest T. Williams and on the West by Lots 2 and 4 of a plat of partition recorded in Volume 159 of Conveyances, Page 163, under entry number 76560, Records of Vermilion Parish, Louisiana. The property herein conveyed being a portion of the same property acquired by vendors by inheritance from their deceased father. The property herein conveyed being especially described on the sketch attached hereto and made a part hereof and delineated thereon as ‘Lot sold’.”

10. On March 30, 1961, defendant Lenix Duhon, Sr., sold the land in question to his son, Lenix Duhon, Jr.

11. On November 20, 1961, the heirs of Olita Trahan sold to plaintiff all the land they had acquired from their mother, using the same descriptions by which their mother acquired.

The above shows that this case deals with a dispute over a small piece of land measuring approximately 20 feet north and south and 125 feet east and west. The land lies [396]*396between land on the north which unquestionably belongs to the plaintiff and land on the south, part of which unquestionably belongs to the defendants. Since plaintiff is not in possession of the land, he brought this petitory action as required by Article 3651 of the Code of Civil Procedure. The trial court rendered a judgment in favor of the plaintiff. From this judgment defendants appeal.

Article 3653 of the LSA-Code of Civil Procedure provides as follows:

“To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a pet-itory action shall:
“(1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
“(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”

In the present case the defendants fenced off the property in 1957 and have remained in possession of it since that time. Therefore, under Article 3653 of the LSA-Code of Civil Procedure, quoted above, the plaintiff in this proceeding carries the burden of making out his title to the property in dispute. The trial court concluded that plaintiff had discharged this burden of making out his title to the property.

The whole case depends on the interpretation of the sales from the Sawyers to Lenix Duhon, Sr., on January 7, 1942, and from Lenix Duhon, Sr., to Olita Trahan on April 28, 1943.

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Related

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601 So. 2d 672 (Louisiana Court of Appeal, 1992)
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329 So. 2d 850 (Louisiana Court of Appeal, 1976)
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267 So. 2d 625 (Louisiana Court of Appeal, 1972)
Hatter v. Sale
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Schexnayder v. Duhon
165 So. 2d 484 (Supreme Court of Louisiana, 1964)

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Bluebook (online)
163 So. 2d 393, 1964 La. App. LEXIS 1580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schexnayder-v-duhon-lactapp-1964.