Wells v. Files

66 So. 749, 136 La. 125, 1914 La. LEXIS 1912

• Court: Supreme Court of Louisiana
• Decided: May 25, 1914
• Docket: No. 19959
• Status: Published

Opinions

PROVOSTX, J.

After the death of the mother of the plaintiffs, their father contracted a debt of $300 to one Christian, and to secure it made a redemption sale to Christian of the quarter section of land which he occupied with his family as a homestead. He continued in possession until his death in 1905. The property was then of little value, and so continued until the tendency of the Caddo oil field to spread in its direction gave it a speculative value. An uncle of the plaintiffs, then (April, 1909) taking an interest in their behalf, caused himself to be appointed tutor to them and to their brother James, and caused this land to be inventoried as belonging to the minors and to their major brother and sister L. O. and Mittie Williams. In December, 1909, with authority of the court and of a family meeting, he, as tutor of the minors and as agent of the two majors, made an oil lease of a half interest in the land to the Sun Company. The act recites that the other half interest belongs to Christian. In the meantime, he was seeking to secure the services of a lawyer to have the sale to Christian set aside; and in January, 1910, he and L. O Williams, lie acting as agent of Mittie Williams and tutor of the minors, entered into a contract with the defendant by which it was agreed that defendant should undertake to recover the property, either by suit or redemption, and for his servicés should have a one-fourth interest. Defendant accordingly filed suit. He alleged that the said sale was a mere contract of security, and that, at all events, the father of plaintiffs had been without authority to sell more than half of the land, as it was community property belonging to the community of acquSts and gains that had existed between him and his late wife, the-mother of plaintiffs. After issue had been joined in the suit, .a consent judgment was entered, March 8, 1910, giving the property to the plaintiffs, but subject to a mortgage in favor of Christian for $750. A few days thereafter, on March 20, 1910, the tutor and the two major heirs made an oil and development lease -of the land to the Sun Company for a cash consideration and royalties. The act recited as follows:

“And to these presents personally came and appeared John B. Piles, who declared that, whereas, he has acquired an interest in said lands on account of professional services rendered by him, * * * he does now ratify, confirm, and approve the above and foregoing contract.”

The cash received by the five heirs from the Sun Company under this contract was used in paying the Christian judgment of $750. Ten days thereafter, March 30, 1910, the five heirs carried out their contract with the defendant, Piles, by executing a deed in his favor to a one-fourth interest in the land. •Shortly thereafter one of them, L. O. Williams, sold one-half of his remaining three-fourths interest to one Clark. On October 7, 1910, -the defendant, Piles, as attorney for Clark, instituted a partition suit against himself and his co-ownors. Service of the petition was accepted by the tutor for the minors, James and Early, and by the other co-owners for themselves, including Mrs. Ruth Williams Wells, one of the plaintiffs in the present suit, who, a few months previously, at the age of 18, had married Charles Wells. Pour days after the filing of this petition for a partition — 1. e., on October 12th — an answer was filed for the defendants in this partition suit by the attorneys who in the instant suit are representing the defendant. This answer admitted the ownership of the property to stand as alleged in the petition for partition. On the same day on which this answer was filed, October 12, 1910, judgment was entered decreeing the ownership to stand as alleged and admitted, and ordering a partition in kind; and, still on the same day, October 12th, an act of partition was. passed. By this act the land was divided into ten several parts. The plaintiff in partition drew lot 1, and then the defendants in partition, together or in indivisión, drew, or rather took, the remaining nine lots. On March 8, 1911, the plaintiffs, Mrs. Ruth Williams Wells and Early Williams, filed the instant suit. They seek to have their sale of a one-fourth interest to the defendant, Piles, annulled on the ground that the property of minors cannot be sold at private sale. On the same day on which they filed the present suit, March 8, 1911, they filed a suit against the Sun Company to annul the lease to it on the same ground. On April 5, 1911, the defendant filed his answer. He avers that the plaintiffs are estopped from attacking his title, because they have “recognized, ratified, approved, and judicially declared” it; secondly, he pleads res judicata. In the alternative, he pleads that his “title is just, legal, and equitable,” because he entered with their tutor into a contract for recovering said land, which contract was duly authorized by a family meeting, and he did succeed by means of judicial proceedings in recovering said land. Pinally, and still in the alternative, lie avers that the deed to him was the joint and several act of his vendors in said warranty deed, and that, in case he is evicted from the interest of the present plaintiffs, the other vendors, L. O. Williams, Mittie Williams, and R. H. Harrell, as tutor for the minors, Early and James Williams, owe him warranty, and he cites them in warranty. And he prays that the suit of plaintiffs be dismissed, -and, in the alternative, that he have against his said warrantors the same judgment that is rendered against him, and that they be condemned to make good to him all loss of land occasioned by the present suit.

Six days after the filing of this answer, the defendant, John B. Files, as attorney for the same plaintiff in partition, Clark, took a rule on himself and his co-owners to show cause why the partition should not be homologated. Service of the petition for this rule appears to have been accepted by the tutor for the two minors and by the other co-owners for themselves. But the plaintiff Mrs. Ruth Wells denies that she ever accepted same. On October 22, 1911, judgment was entered homologating, the partition, and decreeing the plaintiff in partition, Clark, to be the owner of the separate lot set apart to him by the partition, and the defendants in partition to be the owners in indivisión of the rest of the land.

The trial court gave judgment in the instant suit for defendant, without assigning reasons, and plaintiffs appealed.

As to the nullity of the sale to defendant, there can be no serious controversy, after the decision of this court in the case of Keel v. Sutherlin, 130 La. 182, 57 South. 794, where a sale of minors’ property was set aside under exactly similar conditions.

As to the partition proceeding upon which the pleas of estoppel and res judicata are based, it was a consent affair, the sole object of which was to separate the interest of the plaintiff, Clark, from that of the other co-owners; these other co-owners to continue in indivisión. Neither the petition nor the answer stated the proportions in which the defendants to the suit either actually owned the land or were supposed to own it. The petition simply alleges that the defendants “own a nine-tenths interest,” and the answer simply admits that the plaintiff has a one-tenth interest. The answer resists the partition, on the ground that the indivisión is advantageous and should continue, but asks that, in case a partition is decreed, the property be divided into ten parts, and that one of them be given to the plaintiff and the nine others in indivisión to the defendants. And this is what was done. True, the judgment declared what the interest of each of the defendants was in the property, but in so doing it went entirely outside of the pleadings; in fact, contrary to them, since the prayer of the answer, that the property be divided into ten lots, and one of them be assigned to the plaintiff, Clark,. who owned one-tenth, could only mean that the ten lots should be equal, so that the answer, in effect, assigned an equal interest to each of the co-owners — in effect, fixed the interest of each at one-tenth. And this feature of the judgment was ignored in the act of partition, in which all the property was given in globo to the defendants after the lot to Clark had been segregated. The defendant, Files, was a co-owner for the interest which the major heirs, L. O. and Mittie 'Williams, had transferred to him; hence he was a proper party to the partition, irrespective of any interest derived from the plaintiffs in the present suit.

The controversy has degenerated into a consideration of three separate motions to dismiss the appeal. The first, filed on July 12, 1911, is on the grounds:

“(1) That one of the plaintiffs is a married woman and was not authorized to take the appeal.

“(2) That the appeal was not filed in this court within the time prescribed by order of the lower court and as fixed by law.

“(3) That the appeal bond herein is defective and is not in conformity with the order of the lower court.”

Before the time came for the hearing of the case in this court, another motion to dismiss was filed February 21, 1912. In this mption the oil lease made to the Sun Company on March 30, 1910, is alleged, and the further allegation is made that:

“Under the terms of said lease an instrument has been signed by all parties — the said plaintiffs, your mover, and the other co-owners — instructing the said Sun Company to divide the royalty interest in the oil so produced in the proportions in which the property is owned by the various-parties under the Judgment of the district court,” and that “said agreement constitutes a full acquiescence” in the judgment appealed, from.

Another similar motion, based on a similar document of later date, was filed on September 7, 1912. These motions involved a question of fact, upon which evidence had to be taken, and accordingly this court, on November 12, 1912, remanded-the case for the taking of this evidence.

A supplemental transcript containing this evidence was filed in this court on May 12, 1913. Two days later, May 15, 1913, defendant filed a third, or rather fourth, motion to dismiss. It is based on the alleged ground that the plaintiffs had, since the filing of the appeal, sold all their interest in the property, “conveying their said interest as being in the proportion set forth in the judgment” appealed from, and therefore have acquiesced in said judgment, and, moreover, are now without interest to prosecute said appeal.

This motion involving a question of fact, it, too, had to be sent to the lower court for the taking of evidence. By all these motions to dismiss the disposing of this case in this court has been greatly delayed, and the counsel for. plaintiff complains that in the meantime the defendant has been collecting the royalties under the oil lease as if owner of the interest claimed in this suit.

The first of these motions to dismiss is so baseless that it has not been noticed in the briefs, and need not be further noticed here.

The fourth has no greater merit. It is based on the fact that the plaintiffs and appellants have, since the appeal, sold “an undivided twenty-five seventy-second (25/72)” interest. in the land in question. It is said that this is the exact extent of their interest as fixed by the judgment appealed from, and that the plaintiffs, by so selling, have acquiesced in said judgment. Whether the assertion as to the interest thus sold being as fixed in the judgment be correct or not, we do not know. When, on the remand, plaintiffs and appellants sought to offer evidence on that point, defendant and appellee objected, and the trial court sustained the objection. The judgment thus said to have been acquiesced in does not, as a matter of fact, fix the extent of the interest of the plaintiffs and appellants, but only that of the defendant and appellee. But the point is utterly devoid of interest. It would be strange, indeed, if by suing to annul a sale I had made of an interest in my land, and having appealed from an adverse judgment, I could not sell my remaining interest in the land without thereby acquiescing in said adverse judgment upon the interest involved in the suit. This is too plain to need development.

The second and third motions to dismiss —that is to say, those of February 21, 1912, and September 7, 1912 — involve the same legal question, and may be considered together. They are founded upon the alleged fact that the plaintiffs and the defendant signed the documents reproduced in the opinion of this court handed down on November 18, 1912, remanding the case the first time.

The evidence taken on the remand shows that these documents were not, as alleged in the motion to dismiss, signed by both plaintiffs and. defendant, but that they were signed by the plaintiffs only; and it shows that these documents were executed for the express and sole purpose of protecting the Oil Company, and strictly as a matter between the Oil Company and the plaintiffs, and in no way, shape, or form as a contract or agreement between the plaintiffs and defendant. It shows, also, that said documents were made out by the said company, and that said company refused to pay over to the plaintiffs the part of the royalties to which they were incontestably and admittedly entitled unless they signed these documents. It shows, also, that the plaintiffs have little or no education, knowing so little of arithmetic that they could not have figured out the fractional share of each co-owner in these royalties if they had tried to. As a matter of fact, these documents, far from being contracts, do not even set out the interest of the several co-owners correctly.

In Jackson v. Michie, 33 La. Ann. 723, this court said:

“The party against whom judgment has been rendered cannot appeal, if he have acquiesced in the same, by' executing it voluntarily.

“To take away the right of appeal, there must be an unconstitutional, voluntary, and absolute acquiescence in the judgment * * * on the part of the appellant.”

In Breaux v. Sarvoie, 39 La. Ann. 243, 1 South. 614, the syllabus reads:

“To execute voluntarily * * * is to execute with the intention to confirm or ratify. The act from which confirmation or ratification is sought to be deduced must evince, such intention clearly and unequivocally. None will be inferred when the act can be otherwise explained.”

In Succession of Easum, 49 La. Ann. 1345, 22 South. 364, the syllabus reads:

“An act from which consent or ratification is sought to be deduced must evince such intention clearly and unequivocally.

“Nor will ratification be inferred where the act can be otherwise explained, and in ease of doubt the party against whom the act is opposed must have the benefit of the doubt.”

From the decision in Prentice v. Chewning, 1 Rob. 71, we quote as follows:

“In support of the second ground, it is shown that an execution issued on the judgment, notwithstanding the appeal, and that a tract of land belonging to appellant was seized and sold to satisfy the judgment, and Chewning signed the sheriff’s deed, which contains these words: ‘Said James J. Chewning joins in this sale.’ The article of the Code of Practice relied on, 567, declares that: ‘The party against whom judgment has been rendered cannot appeal, if such judgment have been confessed by him, or if he have acquiesced in the same-by executing it voluntarily,’ etc. The sheriff’s sale took place in November previously to the appeal. But we are of opinion that the sale was still a forced one, nothing showing that, the appellant consented to the issuing of the execution. Even if the judgment were to be reversed, the title of the purchaser would be valid, independently of the written consent of the appellant, expressed in the sheriff’s deed. At most that consent would amount only to a waiver of a monition, so far’ as it concerned him. It was perhaps for his interest to make no opposition to the sale, as the land would probably sell for a higher price. But it was not in his power to prevent the execution of the judgment, when the writ was in the hands of the sheriff, as his appeal then pending was not suspensive. We cannot consider this as such an acquiescence in the judgment and voluntary execution of it as defeats his right of appeal.”

In Milliken v. Rowley, 3 Rob. 254, this court said:

“The alleged acquiescence consists in having proceeded, in conformity with that part of the judgment which decreed a partition, to partake the land, and to have the portions of each party set forth and designated by a further decree of the same court, homologating the operations and proceedings of the notary and experts in making the partition, and ordering that a writ of possession be issued to put the plaintiffs in possession of the half allotted to them, on their paying or tendering the above mentioned sum allowed for improvements. It does not appear that the plaintiffs have ever acquiesced in that part of the judgment, which condemns them to pay that amount; and the defendant does not complain, and has not appealed from so much of the judgment as decrees one-half of the land to the plaintiffs. This is not, in our opinion, such an acquiescence in the judgment, by executing it voluntarily, as is contemplated by article 567 of the Code of Practice. The motion is overruled.”

We take from Hennen’s Dig. p. 32, as follows:

“Payment of costs by defendant, who takes a devolutive appeal, is not such an execution of the judgment as bars his right of appeal. Cuny v. Dudley, 6 Rob. 77.

“Where plaintiff sues for a promissory note and damages for its detention, defendant’s acquiescence in that part of the judgment which decrees the note to plaintiff will not preclude the former from appealing from so much of it as assesses damages. Liles v. N. O. Canal Co., 6 Rob. 273.

“Where a creditor, who has obtained judgment in an attachment suit, in which the property was bonded by defendant, after a return of a fi. fa. unsatisfied, takes a rule against the surety in the bond to show cause why he should not be condemned to pay the debt, and appeals from a judgment dismissing his rule, his subsequently issuing an alias fi. fa. will not be considered a voluntary execution of the judgment, authorizing the dismissal of the appeal. The judgment, from which the appeal was taken, is wholly distinct from that rendered in the principal cause, and in which the fi. fa. was issued. Clements v. Cassily, 3 La. Ann. 358.

“Where an injunction, arresting the sale of property seized under a fi. fa. is dissolved on motion as to a portion of the property, but, after a trial on the merits subsequently had, is maintained as to the remainder, the creditor will not, by executing his fi. fa. against the portion as to which the injunction was dissolved, deprive himself of the right to appeal from the subsequent decree perpetuating the injunction as to the remaining portion. Mitchell v. Lay, 3 La. Ann. 593.”

In Duncan v. Wise, 39 La. Ann. 74, 6 South. 13, it was held that the execution of the judgment for the excess over the reconventional demand did not preclude the plaintiff from appealing from that part of the ■{judgment sustaining the reconventional de'.’’mand, and compensating plaintiff’s judgment pro tanto. The court said:

“The acquiescence, if there be any, was enforced, and not voluntary” — citing Johnson v. Clark, 29 La. Ann. 762.

In that case this court said:

“The defendants did not voluntarily execute the judgment of the lower court. They disregarded the sheriff’s first notice, requiring payment of the fieri facias, whereupon he informed them that if payment was not made by a given hour he should seize, advertise for sale, and sell .their stock in trade, and to that end the officer proceeded to prepare in form his notices of seizure. To avert this the defendants paid, and took immediate legal proceedings to stay the' fund in the sheriff’s hands. The consequences of a seizure of their stock, and its advertisement for sale, would have been far-reaching and most injurious to them. Their payment, to avert such consequences, cannot be held in any other light than compulsory. The act should be unequivocal to authorize a presumption of the abandonment of so important a right. Leggett v. Peet, 1 La. 296; Yale v. Howard, 24 La. Ann. 458.”

Defendant’s learned counsel assume in their brief that, in the opinion remanding this case, this court expressed itself upon the point of whether by signing the documents in question the appellants acquiesced in the judgment appealed from; but such is not the fact. The case was remanded for the very purpose of ascertaining the circumstances under which the said documents were executed.

The evidence taken on the remand, far from showing that the plaintiffs were willing to acquiesce in the judgment, shows, on the contrary, that their firm and fixed intention and . determination was to prosecute their appeal, that they executed the documents in question simply and solely because they were forced to do so in order to induce the Sun Company to pay them what was justly, incontestably, and admittedly their own, and strictly as a matter between them and the Sun Company, and having absolutely nothing to do with the contest between them and the defendant.

No doubt a party can take no benefit from a judgment and yet appeal from it; but by their said conduct these appellants were not taking any benefit under the judgment, but were simply receiving what was incontestedly their own, and agreeing to hold the Sun Company harmless if it made payment according to the fractional distribution in the documents, whether these fractions were right or wrong. In the cases cited in the appellee’s brief the appellant’s- right to receive, or to take, had been a matter contested in the suit, and, when the appellant received and took he did so by virtue or authority of judgment, and hence acquiesced in it; but in the instant case the appellants received, or took, nothing contested in the judgment. They did not receive by virtue of the judgment, but by virtue of their interest well recognized- and never in contest. To illusstrate: If A. sues to set aside a sale he has made of an undivided interest in his rented building, and his suit is rejected, and he appeals, he does not acquiesce in the judgment by receiving thereafter from the tenant one-half of the rent. In such a case, he does not receive this rent by virtue or authority of the judgment which has rejected his claim to the contested half interest in the building; but he receives it by virtue of his uncontested ownership of the other half interest.

The motions to dismiss are overruled.

The question of warranty discussed in the briefs of defendant has not been raised by any pleadings, and therefore cannot be considered; the only warranty mentioned in the pleadings being against L. O. and Mittie Williams, who are not parties to this appeal, except as appellees, and a judgment cannot be amended as between appellees.

Therefore it is ordered, adjudged, and decreed that the judgment appealed from be set aside, and that the plaintiffs Ruth Williams Wells and Early Williams have judgment against the defendant, John B. Files, annulling and setting aside the sale made by R. H.' Harrell, tutor, to the said John B. Files, of one-fourth undivided interest in the northwest quarter of southwest quarter and east half of northwest quarter and southwest quarter of northwest quarter of section 10, township 21, range 16, of Caddo parish, of date March 30, 1910, and recorded in books of conveyances of the clerk’s office of the parish of Caddo in Book 64, page 148, and that the said defendant, John B. Files, pay the costs of this suit.

O’NIELL, J., takes no part.