Smith v. Overton

417 So. 2d 872
CourtLouisiana Court of Appeal
DecidedJune 29, 1982
Docket14933
StatusPublished
Cited by5 cases

This text of 417 So. 2d 872 (Smith v. Overton) 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
Smith v. Overton, 417 So. 2d 872 (La. Ct. App. 1982).

Opinion

417 So.2d 872 (1982)

Donald J. SMITH
v.
W. Lee OVERTON.

No. 14933.

Court of Appeal of Louisiana, First Circuit.

June 29, 1982.

Richard Kilbourne, Clinton, for plaintiff-appellant.

W. Lee Overton, pro se.

William G. Carmichael, Clinton, for defendant-appellee.

Before COVINGTON, COLE and WATKINS, JJ.

WATKINS, Judge.

This is a boundary action filed by Donald J. Smith against W. Lee Overton. Upon *873 the filing by Overton of a peremptory exception of non-joinder of an indispensable party, plaintiff filed a supplemental petition, naming Saundra P. Overton, wife of W. Lee Overton, as a party defendant. The trial court fixed the boundary; Smith appealed, and the Overtons answered the appeal.

By instrument dated August 24, 1946, Haynes Lumber Company sold to Robert C. Graham, ancestor in title of Donald J. Smith, plaintiff, the following described property:

"A certain piece or parcel of ground containing 5.65 acres situated in East Feliciana Parish, Louisiana and described as the South One-half (S½) of the parcel of ground acquired by vendors from John C. Rogers on June 27, 1946 which said parcel of ground is described as follows, to-wit:
"1st: 10.80 acres described as beginning at the east corner of Section 47, T2S R2E; thence north 36 degrees west 7.82 chains; on section line to Ligon's southeast corner; thence south 54 degrees west 10.50 chains on Ligon's line to Highway 36; thence south 33 degrees east 12.30 chains on Highway 36 to Section line; thence north 33 degrees east 12.00 chains on section line to place of beginning. Location in Section 47, T2S R2E.
"2nd: One-half (½) Acre described as beginning north 36 degrees west 7.82 chains from the east corner of Section 47, T2S R2E; thence north 37 degrees west 0.477 chains to Ligon's southeast corner; thence south 54 degrees west 10.50 chains on Ligon's line to Highway 36; thence south 33 degrees east 0.477 chains on Highway 36; thence north 54 degrees east 10.50 chains to point of beginning, embracing one-half acre in Sec. 47, T2S R2E."

By instrument dated August 30, 1946, Haynes Lumber Company[1] sold to James H. McQuirter, ancestor in title of the Overtons, the following described property:

"A certain piece or parcel of ground, being and situated in East Feliciana Parish, Louisiana and containing 5.65 acres, described as being the North One-Half (N½) of the parcel of ground acquired by Haynes Lumber Company from John C. Rogers on June 27, 1946 which said parcel of ground is described as follows, to-wit:
"1st: 10.80 acres described as beginning at the east corner of Section 47, T2S R2E; thence north 36 degrees west 7.82 chains on section line to Ligon's southeast corner; thence south 54 degrees west 10.50 chains on Ligon's line to Highway 36; thence south 33 degrees east 12.30 chains on Highway 36 to Section line; thence north 33 degrees east 12.00 chains on section line to place of beginning. Located in Section 47, T2S R2E.
"2nd: One-half (½) acre described as beginning north 36 degrees west 7.82 chains from the east corner of Section 47, T2S R2E; thence north 37 degrees west 0.477 chains to Ligon's southeast corner; thence south 54 degrees 10.50 chains on Ligon's line to Highway 36; thence south 33 degrees east 0.477 chains on Highway 36; thence north 54 degrees east 10.50 chains to point of beginning, embracing ½ acre in Section 47, T2S R2E.

It will be noted that Haynes Lumber Company was the common ancestor in title of both plaintiff and defendants, and that the instruments of conveyance describe the properties conveyed by the instruments as respectively the "South One-half (S½)" and the "North One-Half (N½)" of a parcel of ground acquired by Haynes Lumber Company from John C. Rogers. The parcel of ground acquired by Haynes Lumber Company from Rogers is irregular in shape and the respective instruments make no attempt to establish by metes and bounds a *874 boundary between the North and South One-halves. Therein lies the root of the present problem; the instruments out of the common ancestor in title do not establish a definite boundary.

Robert C. Graham sold the South One-half to Smith, the present plaintiff, by instrument dated July 31, 1951, no precise boundary being given between that One-half and the North One-half.

The history of transfers of the North One-half is somewhat more complicated. By instrument dated June 28, 1946, James H. McQuirter and Archie McQuirter[2] sold to Haynes Lumber Company the North One-half, the property conveyed being stated to be bounded on the South by the "south half of said tract, now owned by Graham." Under identical description, by instrument dated November 19, 1947, Haynes Lumber Company sold the North One-half to Manuel Rivette and his wife, Geneva Cooper Rivette. Under the same description, by instrument dated July 2, 1949, Manuel J. Rivette and Geneva Cooper Rivette sold to Delos Morgan the North One-half. Delos Morgan and Jennie Romano Morgan, from whom he was judicially separated, then sold the North One-half to Nell H. Haynes by instrument dated October 13, 1972, under similar description.

Because Mrs. Haynes was having boundary problems with the owners of the tract to the north, who were Henry and Ida Wulff, she hired R. Dale Hodges, a licensed civil engineer affiliated with Pan American Engineers in Baton Rouge, to mark her northern boundary, and incidentally to fix her other boundaries, including the boundary with Donald J. Smith, who by that time owned the South One-half. The plat of survey made at that time, dated February 28, 1973, prepared by Hodges, was introduced in evidence as Exhibit D-2 and is made a part of this opinion. The trial court fixed the boundary between the Overtons (Mrs. Haynes' vendees, as will appear below) and Smith along the same line, as was done by Hodges in the 1973 survey.

By instrument dated July 10, 1978, Nell Haynes sold to W. Lee Overton, married to and living with Saundra P. Overton, the following described property:

"A certain parcel of ground with all the buildings and improvements thereon and appurtenances thereunto belonging, being and situated in the Parish of East Feliciana, State of Louisiana, containing 5.20 acres and designated on a plat of survey by Pan American Engineers, dated June 12, 1973 as A-1 in Section 47, T2S, R2E, more particularly described as:
Begin at the southeasternmost corner of said Tract `A-1' on Plank Road and proceed along Plank Road N 32° 52' 41" W a distance of 362.23 feet to a point and corner; thence proceed N 54° 36' 02" E a distance of 653.325 feet to a point and corner; thence proceed S 35° 48' 24" E a distance of 322.50 feet to a point and corner; thence S 51° 14' 38" W a distance of 672.706 feet to a point of beginning and corner, all as shown on a said tract of survey."

It will be noted that thus Mrs. Haynes conveyed to the Overtons, present plaintiffs, the North One-half, subject to a plat of survey annexed to the instrument that had been prepared by R. D. Hodges under date June 12, 1973. We have examined the plat of survey annexed to the instrument, another copy of which was introduced in evidence as Exhibit D-1, and find it practically identical to Exhibit D-2, which we have annexed to our opinion.

At the time of the purchase of the North One-half by the Overtons, Smith stated to Lee Overton that he would not accept the boundary between the North and South halves which had been fixed by Hodges.

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Cite This Page — Counsel Stack

Bluebook (online)
417 So. 2d 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-overton-lactapp-1982.