text:
    Frank J. SMITH et al., Plaintiffs-Appellants, v. Morris ANISMAN, Defendant-Appellee.
    No. 8395.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Forrest F. Foppe, Shreveport, for appellants. ' ' •
    Jackson, Mayer & Kennedy, Shreveport, for appellee.
   GLADNEY, Judge.

Plaintiffs are the alleged owners in fee of , one hundred twenty (120) acres of contiguous property situated' in Caddo Parish, Louisiana, inherited from their ancestors, Abe Smith and Edith Smith, and have brought this suit to have canceled from the records of Caddo Parish an instrument dated August 27, 1941, wherein Edith and Abe Smith sold to the defendant, Morris Anisman, an undivided one-sixth (Y¿) of all oil, gas and other minerals in and under the aforesaid property. .Suit was filed on August 6, 1954, and was met with exceptions of no cause ánd no right of action. After hearing, the exceptions were maintained and plaintiffs’ demands rejected, hence this appeal.

Upon trial of the exceptions counsel representing plaintiffs and defendant stipulated and agreed as follows:

“That the document marked ‘Exhibit-A’, attached hereto and made a part hereof, is a certified copy of the Mineral Deed dated August 27, 19.41, recorded August 29, 1941 in Conveyance Book 451, page 207, which the defendant, Morris Anisman, acquired from the then owners of the affected lands, namely, Edith Bradford Smith and Abe Smith, authors in title of plaintiffs herein and for the purpose of trying the exceptions and pleadings herein conveyed an undivided one-sixth (1/5) of the oil, gas and minerals under the East Half of the Southwest Quarter and Southeast Quarter of Northwest Quarter (E/2 of SW/4 & SE/4 of NW/4) of Section 35, Township 21 North, Range 15 West, Caddo Parish, Louisiana.
“The parcels of land described in said Deed are regular governmental subdivisions of approximately forty (40) acres each in place.
“On or about November 2, 1949, J. A. Funston, et al, of Monroe, Louisiana, with the knowledge and consent of defendant and other mineral owners, began the drilling of a well in the Southeast Quarter of the Northwest Quarter of Section 35, Township 21 North, Range 15 West in search of oil and gas at a location 1466 feet East and 2485 feet South from the Northwest corner of Section 35, Township 21 North, Range 15 West, Caddo Parish, Louisiana under Permit No. 23969 from the Department of Conservation of the State of Louisiana. Said well was drilled in good faith by the operators to a depth of 2400 feet which was a sufficient depth to test the Woodbine Formation, which formation was and is the deepest formation from which oil and gas have been produced in the area of said well in Caddo Parish, Louisiana; The well was plugged and abandoned by the operators in December of 1949.'
“It is stipulated that there was no oil, gas or minerals produced from the described lands for a period of ten (10) years beginning August 28, 1941.
“That there are presently some twelve (12) wells located on the land described above which are now and have been for approximately two (2) years producing oil, gas and minerals in paying quantities from what is known as the Chalk Formation at a depth of approximately 1600 feet. Said wells were completed by the operators under sand-fracting process which was not known or utilized by the industry prior to the year 1949.”

The instrument which plaintiffs seek to have canceled of record bearing date of August 22, 1941, purports to be a conveyance from Edith Bradford Smith and Abe Smith to Morris Anisman of:

“One-sixth (%th) of the Oil, gas and other minerals, in and under and that may be produced from the following described lands situated in the Parish of Caddo, Louisiana:
“The East Half (Ei^) of Southwest Quarter (SW(4) and the Southeast Quarter (SE(4) of Northwest Quarter (NW(4)> Section Thirty-Five (Sec. 35), Township Twenty-One (21) North, Range Fifteen (15) West, containing one hundred twenty (120) acres, more or less.
■ “It is the intention of Grantors to convey twenty (20) full mineral acres under the above described tract of land.
“It is understood between the parties hereto that this sale is made subject to any valid and duly recorded oil and gas lease, but covers and includes one-sixth (14th) of all the oil royalties and gas rentals or royalties due and to become due under the terms of any such lease, and a like interest in all money-rentals that 'may be hereafter paid in order to keep such lease in effect without drilling.”

Plaintiffs’ petition also alleges that at the time of the conveyance to Anisman on August 27, 1941, there was in existence an oil and gas lease dated June 5, 1939, affecting the property herein involved, which lease was executed by Abe and Edith Smith in favor of A. G. Tullís for a term of ten years.

Counsel for plaintiffs and appellants herein so states his legal contention:

“That as shown hereinabove the only lease in existence at the time of the execution of the aforesaid royalty deed in favor of defendant was the aforementioned lease in favor of A. G. Tul-lis; that therefore, in the absence of production of oil, etc., defendant only acquired the right to share in the oil, gas, and other minerals if and when they were produced within the five years remaining under the Tullis lease, since as shown hereinabove five years had already spent themselves without any production of oil, gas or other minerals.
“That since there was no production of oil, etc. within the aforesaid five years remaining under the Tullis Lease, and since there had been no production of oil, gas and other minerals during the five years preceding defendant’s royalty deed, all rights and interests that defendant might have acquired under the aforesaid royalty deed were lost in the year of 1946.”

Counsel for appellee, on the other hand, asserts appellants’ position is untenable for the reason that defendant acquired minerals and mineral rights and not merely royalty and royalty rights under the instrument dated August 27, 1941. And, furthermore, for-asmuch as the petition and stipulation show that on November 2, 1949, there was a good faith drilling of a well on the subject property with the knowledge and consent of the mineral owners, that operation was sufficient to interrupt the running of the ten year prescription against the mineral servitude.

The first question for our determination is whether or not the deed to Anisman was in fact a sale of mineral rights, and not merely a sale of royalty. The instrument itself evidences in unmistakable language that “one-sixth (V£th) of the oil, gas and other minerals” was conveyed and to make the meaning even clearer the parties inserted the following:

“It is the intention of grantors to convey twenty (20) full mineral acres under the above described tract of land.”

We are of the firm opinion that Anisman acquired mineral interests and not merely royalty rights. In one of the more recent judicial expressions on this subject, the Supreme Court in Horn v. Skelly Oil Company, 1954, 224 La. 709, 70 So.2d 657, 660, said:

“The contention of the defendants that the reservation by the bank in the deed to McRae was a royalty, as contra-distinguished from a mineral interest (predicated principally upon the bank’s failure to specifically reserve to itself the right of ingress and egress for purposes of exploration), is clearly without merit. The bank in unmistakable language reserved unto itself ‘a one-half interest in and to all minerals and mineral rights in and under the above described property.’ Such a reservation under our long recognized and established jurisprudence constitutes a servitude imposed upon the land, giving the owner thereof the right of ingress and egress for the purpose of exploring for and reducing to possession the minerals under the property so burdened. The so-called proviso following instead of having the effect of reducing the interest thus reserved to .a mere royalty, as contended by the defendants, is,' in fact, a mandate coupled with an interest under which the land bank granted McRae the privilege of leasing the bank’s reserved mineral interest under certain specified conditions, as herein-above set out. Of necessity, only the owner of the minerals has the right to grant such leasing- privileges. See Gulf Refining Co. v. Goode, 212 La. 502, 32 So.2d 904; Long-Bell Petroleum Co. v. Tritico, 216 La. 426, 444, 43 So.2d 782; Sanders v. Flowers, 218 La. 472, 49 So.2d 858; Smith v. Holt, 223 La. 821, 67 So.2d 93.”

It must be conceded that had Anisman merely purchased the right, to receive royalties,, and since oil, gas or minerals were not produced from the lands affected for a period of ten years, beginning August 27, 1941, mere drilling of a nonproductive well during that period of time would not’ have had the effect of interrupting the ten year prescription. See: Union Sulphur Company, Inc. v. Lognion, 1947, 212 La. 632, 33 So.2d 178; Union Sulphur Company, Inc., v. Andrau, 1950, 217 La. 662, 663, 47 So.2d 38. But the rule is contrariwise where the servitude has been created by a grant of mineral rights, for the right to the continued use of the servitude is not dependent upon development resulting in production of oil, gas and minerals, unless made so by contract. LSA-C.C. arts. 656, 657 and 3546; Keebler v. Seubert, 1901, 167 La. 901, 120 So. 591; Frost Lumber Industries v. Federal Petroleum Company, D.C. 1940, 29 F.Supp. 957, certiorari denied 311 U.S. 676, 61 S.Ct. 43, 85 L.Ed. 435; Lynn v. Harrington, 1939, 193 La. 877, 192 So. 517; Ohio Oil Company v. Cox, 1940, 196 La. 193, 198 So. 902; Hunter Company, Inc., v. Ulrich, 1942, 200 La. 536, 8 So.2d 531; Standard Oil Company of Louisiana v. Futral, 1943, 204 La. 215, 15 So.2d 65; Mays v. Hansbro, 1953, 222 La. 957, 64 So.2d 232.

The owner of the minerals, oil and gas in a tract of land possesses a real right in the nature of a personal servitude to go upon the land and explore for oil or gas and possess such oil or gas as may be produced. The manner in which and the parties through whom this use of the servitude is exercised is not strictly circumscribed. LSA-C.C. art. 793, states:

“To preserve the right of servitude and prevent prescription from running against it, it is not necessary that it should be exercised exclusively by the owner to whom it is due, or by those who use his rights, or who represent him directly, as the usufructuary, the lessee qr tenant, the attorney in fact or agent. It suffices if the servitude has been exercised by workmen employed by the owner, or by his friends, or those who come to see him.”

Considered in the light of the aforementioned authorities, the judgment of the court a quo is correct. Defendant acquired a real right incidental to which was the right to go upon and explore the land described in his grant for the purpose of discovering oil or gas. The mere use of the right to so explore, even though not successful, under the uniform jurisprudence of this state, constituted an interruption of the ten year prescription liberandi causa imposed by LSA-C.C. art. 3546. Therefore, it follows that when a bona fide attempt to drill was made on November 2, 1949, that operation breathed further life into the mineral deed held by Anisman and it was in full force and effect when wells drilled during the year 1952 produced oil and gas.

For the foregoing reasons the judgment from which appealed is affirmed at appellants’ cost.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, Plaintiff-Appellee, v. Harold B. KARAS, Defendant-Appellant.
    No. 8445.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.

      Campbell & Campbell, Minden, for appellant.
    McClendon & Benton, J. F. Mclnnis, Minden, for appellee.
   HARDY, Judge.

This is an action which seeks to enjoin defendant from the alleged practice of medicine, under the provisions of LSA-R.S. 37:1261 et seq. In limine, defendant filed exceptions of want of legal capacity to institute suit and lack of authorization, which exceptions were overruled by the District Court. After trial there was judgment in favor of plaintiff, from which defendant has appealed.

The only issue presented for determination in this appeal was raised by defendant’s exceptions, which served to question the authority of plaintiff’s representative officer to file the instant suit.

The principle of pleading appropriate to the question tendered herein was thoroughly discussed in an article by Professor McMahon, 11 T.L.R. 527, under the general heading, “Parties Litigant in Louisiana”,- and, particularly, with reference to the exception o'f want of capacity (cf. op. cit. 550).

Counsel for plaintiff urges that the point raised has been disposed in the case of Louisiana State Board of Medical Examiners v. Weller, La.App., 77 So.2d 166, but we do not so construe the issue which was tried in the cited case. Our brethren of the First Circuit. devoted their attention only to the question of authority for the institution of the suit by the Board, whereas the instant case poses the proposition as to the authorization of the President of the Board to bring suit.

The Louisiana State Board of Medical Examiners consists of five members' appointed by the Governor. LSA-R.S. 37 :- 1262.

Among the enumerated, duties and powers of the Board is found the authorization of any member to make affidavit for the issuance of any authorized action for injunction or other legal process. LSA-R.S. 37:1269. '

The specific authorization for the issuance of an injunction .is found in LSA-R.S. 37:1286, which empowers the Board, through its proper officer, to cause to be issued a writ enjoining any person from practicing medicine.

Defendant here contends, upon the basis of the above statutory provisions, that an|i' suit for injunction must:

(1). Be ' authorized by the Board, and
(2). Instituted by the Board through its proper officer.

The only question, here presented is directed not to a showing of the authority of the Board to bring this action, but to the evidence of authorization by the Board of an appropriate officer charged with the specific responsibility and duty of instituting this suit.

Reference to the verification of plaintiff’s petition shows that the same was attested by the President of the Louisiana State Board of Medical Examiners, but it does not indicate that the said President'wás authorized nor empowered by the Board itself to bring such action.

Under the circumstances we are resolved that the exceptions should have been maintained, and, accordingly, it is ordered, adjudged and decreed that defendant’s exception of want of authority be and it is hereby sustained; the judgment appealed from is annulled and set aside and this case is remanded to the Honorable the Twenty-Sixth Judicial District Court in and for the Parish of Webster, State of Louisiana, for further proceedings not inconsistent with this opinion.


text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, Plaintiff-Appellee, v. J. R. BRODNAX, Defendant-Appellant.
    No. 8446.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Campbell & Campbell, Minden, for appellant.
    McClendon & Benton, J. F. Mclnnis, Minden, for appellee.
   HARDY, Judge.

.The issue presented in this suit is identical with that considered ' by this Court in Louisiana State Board of Medical Examiners v. Karas, La.App., 85 So.2d 354.

For the reasons assigned in the cited case it is ordered, adjudged and decreed that defendant’s exception of want of authority be and it is hereby sustained; the judgment appealed from is annulled and set aside and this case is remanded to the Honorable the Twenty-Sixth Judicial District Court in and for the Parish of Webster, State of Louisiana, for further proceedings not inconsistent with this opinion.


author: GLADNEY, Judge.

text:
    STANDARD TILE & MARBLE COMPANY, Plaintiff-Appellee, v. W. A. GRAY, d/b/a W. A. Gray Construction Company, Defendant-Appellant.
    No. 8441.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.

      Morgan, Baker & Skcels, Shreveport, for appellant.
    Goode & Mayo, Shreveport, for appellee.
   GLADNEY, Judge.

The Standard Tile & Marble Company, a partnership composed of P. G. Coleman and T. M. Rayburn, brought this suit against W. A. Gray to recover $357.35, the unpaid balance of the contract price. From a judgment for $178.67 in favor of pláin-tiff, the defendant has appealed. H. E. Harper, qualified trustee in bankruptcy for Standard Tile & Marble Company, (Coleman and Rayburn bankrupts), has been properly substituted party plaintiff.

Plaintiff agreed on October 1, 1954, to do the terrazzo and ceramic work in the South-side Branch of the Pioneer Bank & Trust Company of Shreveport, for the sum of $3,573.50, in accordance with plans and specifications prepared by Lester Haas, who was the supervising architect on the job. The written contract entered into consisted of proposals made on behalf of Standard Tile & ■ Marble Company and acceptances by W. A. Gray. In none of these does it appear that Gray acted as other than a principal. He appears in the light of a general contractor, and plaintiff as a subcontractor.

Following completion of the work and payment by W. A. Gray to plaintiff of all of the contract price with the exception of ten per cent thereof, which was retained in the hands of the owner, this controversy arose because of the unsatisfactory condition of the work. During the trial of the case the two partners, W. A.-Gray, E. P. Crutcher, E. R. Campbell, (the latter two representing the Pioneer Bank & Trust Company), and architect Lester Haas testified. The judge a quo made an inspection of the work in question and his report is likewise found in the record. All of this testimony may be summed up by stating the tile work was finished with certain defects which on several different occasions plaintiff attempted to remedy but never did completely do so to the satisfaction of Gray or the Pioneer Bank & Trust 'Company.

In the course of his inspection the trial judge observed conditions he apparently considered unsatisfactory and while the architect was a witness he pressed Mr. Haas to say what it would cost to substantially remedy those conditions. The Court was finally informed by this witness that approximately five per cent of the total contract price, or $178.67, would be a fair, measure of the damages and it was this sum which determined the award.

The' defendant alone has appealed and presents the following errors in the judgment: (1) The court was in error in holding defendant to a personal judgment as the evidence disclosed that Gray, was merely the agent of the disclosed owner, the Pioneer Bank & Trust Company; (2) that the court was in error in failing to find the cost of correcting the unsatisfactory work exceeds the amount withheld; and (3) that the judgment is in error in requiring defendant to pay over the balance due under the contract before the faults are corrected.

' Certain general principles with reference to recovery on a building contract where the work is defective or unfinished, should be borne in mind. Recently in the case of Norman v. Brown, 1955, 83 So.2d 488, 490, a decision of this court, we observed:

“Damages for the breach of a build'ing contract where the owner derives some benefit from the defective construction are usually measured by the cost of repairing the defectivé work. See: DuBos v. Sanders, 1932, 174 La. 27, 139 So. 651; Merrill v. Harang, La.App.1940, 198 So. 386; Sarver v. Barksdale, La.App.1946, 24 So.2d 649; Home Services v. Marvin, La.App. 1948, 37 So.2d 413; Banks v. Reed, La.App.1951, 52 So.2d 554; Moore v. Usrey & Usrey, La.App.1951, 52 So.2d 551; Montague v. Milan, La.App. 1953, 67 So.2d 351. The stated rulings are consistent with provisions in the Civil Code which expressly - de-, clare that if a contractor fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that result from his noncompliance. LSA-C.C art. 2769. A substantial compliance with a building contract however, is all that is required. Merrill v. Harang, La.App. 1940, 198 So. 386; Walter E. Canulette & Son v. Clesi, La.App.1949, 39 So.2d 853; Stabler v. Keaty, La.App.1949, 42 So.2d 909. With these legal principles in mind we move to consider the circumstances which gave rise to this controversy.”

In brief before this court, counsel for defendant insists that Gray undertook the work on behalf of the Pioneer Bank & Trust Company as its agent only. The only evidence adduced in support of this contention is the testimony of Gray, who gave this account of his contract with the bank:

“Well, in this particular case, the ’way this contract was run out there, I had a contract with the Pioneer Bank & Trust Company to build this building on a percentage fee, cost-plus, in other words, and Mr. Campbell would pay any invoice that I okayed, speaking of all invoices. But he told me that the work was not satisfactory to him, and it wasn’t satisfactory to me, and I would never okay the final hold-back, you see. We paid all but ten per cent of this. We withheld ten per cent. I believe we made two partial payments. I am not sure. It might have been one.”

This evidence, standing by itself, is certainly insufficient to indicate that Gray was an agent or 'employee. The proposals and acceptance, both in writing, and filed as exhibits in the record, make no disclosure of any relationship whatsoever between Gray and the bank, other than that the job. was being done for the Pioneer Bank & Trust Company.

Article 1945 of the LSA-Civil Code declares that legal agreements having the- effect of law upon the parties can only be abrogated or modified by them and that the intent of the parties is to be determined by the words of the contract “when these are clear and explicit and lead to no absurd consequences.” The record and the exhibits referred to, give no -indication that Gray was an agent or employee of the bank.

The legal assertion that an unqualified cost-plus contract constitutes an agency is non sequitur. The Supreme Court in Standard Oil Company of Louisiana v. Fontenot, 1941, 198 La. 644, 4 So.2d 634-643, had occasion to discuss whether cost-plus contracts have the effect of creating an agency or independent contract and said:

“The question of whether or not a contractor under the. law is an independent one or an agent depends upon the intention of the parties as expressed in the contract. The usual independent contractor is the one who is the lowest bidder on a lump-sum basis. He depends for his profit or gain upon the difference between the amount that the materials, labor, etc., cost him and the amount of the contract price. The independent contractor on a ‘cost-plus-a-percentage-of-cost’ basis is one who' undertakes the construction required by the contract and the owner reimburses him for the costs of materials, labor, etc., and the contractor’s profit or gain is to be a certain percentage of the total cost of the project. These types of contractors .are legally classified as independent contractors. The third or new type of contract is called a ‘cost-plus-a-fixed-fee’ contract, which means that the contractor is to be reimbursed for the costs of materials, labor; etc. by the owner and is to receive a fixed fee as his profit or gain. This fee, which is fixed as his profit or gain for the performance of the contract, is identical with the profit or gain which the contractor on a ‘cost-plus-a-percentage-of-the-cost’ contract receives in the respect that neither contractor takes any chance of losing. The profit or gain on a ‘cost-plus-a-fixed-fee’ contract is dissimilar from the profit or gain on a ‘cost-plus-a-percentage-of-the-cost’ contract only in the respect that the amount is not exactly determined in advance. The-only difference between the ‘cost-plus-a-fixed-fee’ and the ‘cost-plus-a-percentage-of-the-cost’ contract on the one hand, and a ‘lump-sum’ contract on the other, is that in the two former cases, the contractor’s profit or gain is assured, whereas, on a ‘lump-sum’ contract, it is possible that the anticipated and expected profit may turn into a loss because of a low bid or advances in the prices of materials or the cost of labor. In all three types of contracts, however, the contractor is certainly an independent contractor,- if the provisions of the contract make him so and do not in any way indicate or state that the parties intended that it was a contract of employment or agency or that the contractor was an instrumentality of the ’ Government. In all of the above cases, the contractor operates his business for his own profit and gain. He is not performing governmental functions and has no authority to, in any way, bind the owner or Government either for the purchase of the materials or for the hiring of labor.”

The foregoing explanation justifies the conclusion that Gray occupied neither the status of agent nor employee of the Pioneer Bank & Trust Company. Counsel cites but one Louisiana authority in support of his position, namely: Lagasse v. Allen, 1951, 219 La. 745, 54 So.2d 6. The cited case presented an action against the owner who, when sued for a balance due on the cost-plus contract, contended only that the contractor had completed the work in a manner more costly than was anticipated. It is not authority for the viewpoint posed herein.

Appellant urges secondly, that the amount awarded defendant is grossly insufficient to correct the unsatisfactory condition of the work, and, therefore, the judgment should not have awarded anything to plaintiff. We find that the only evidence having probative value bearing upon the measure of damages comes from the testimony of the architect who estimated that five per cent of the total contract price would be adequate to correct the faulty work. This is purely a factual question which we think was properly decided by the trial court.

Our attention is also directed to two other issues. First, we note counsel for appellee in brief only asks that the award be increased. No answer to the appeal has been filed, and in its absence the judgment cannot be disturbed. It is well settled that for an appellee to obtain a change in the judgment he must ask for it in a regular answer to the appeal. Code of Practice, art. 888; State v. Becker, 1878, 30 La.Ann. 682; Hughes v. Gill, La.App. 1949, 41 So.2d 536-539; Freeman v. World Insurance Company, La.App.1952, 61 So.2d 892.

The remaining question concerns the exclusion of all evidence relating to the reconventional demand made by defendant for an amount far in excess of the trial court’s jurisdiction. The judge a quo, in our opinion, correctly refused to give consideration to the reconventional demand. See: Louisiana Constitution of 1921, Article VII, § 51, LSA; LSA-Revised Statutes 13:1875, subd. B and 13:2450; Kaufman v. Mahen, 1925, 2 La.App. 354; Arctic Pure Ice Company v. Rathe, 1925, 3 La.App. 14.

It follows from the reasons and findings hereinabove set forth that the judgment from which appealed should be affirmed at appellant’s cost.


text:
    Mr. and Mrs. C. L. SWAIN, Plaintiffs-Appellees, v. Mrs. Cora A. LINDSAY and J. L. Lindsay, in Solido, Defendants-Appellants.
    No. 8443.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.

      Browne, Browne & Bodenheimer, Patrick W. Looney, Shreveport, for appellant.
    Robert J. Newson, Shreveport, fo'r ap-pellee.
   GLADNEY, Judge.

Plaintiffs brought suit in the City Court of Shreveport, Louisiana, to recover the sum of $150 paid to Mrs. Cora A. Lindsay for one-half interest in certain dry goods and clothing which were to be sold by Mrs. Lindsay and Mrs. Swain. After the institution of the suit Mrs. Lindsay died and by appropriate proceedings the record now discloses that J. L. Lindsay was the sole heir to his wife’s succession and has accepted the same unconditionally. The case was tried on its merits and resulted in a judgment in favor of plaintiffs and against the'defendant, from which judgment J. L. Lindsay has prosecuted this appeal.

For the purpose of this record there is included an agreed statement of facts constituting, as it were, a stipulation between counsel of the evidence adduced upon the trial of the case. The facts so presented disclose that Mrs. Cora A. Lindsay took plaintiffs to a store building which she represented as being her separate and para-phernal property and while there showed plaintiffs several large wooden boxes, which were not opened, and which she represented as containing clothing worth for sale purposes, at least $1,000. Mrs. Lindsay exhibited to Mrs. Swain a writing, which though unsigned, stated the goods or clothing could be sold at the store building. A check for $150 was then delivered to Mrs. Lindsay. Mrs. Swain, in accordance with a previous agreement with Mrs. Lindsay, returned several weeks later and was informed by Mrs. Lindsay that her husband would not permit her to use the store building and that it would be necessary that they peddle the clothes in Mrs. Swain’s car. It also developed that while unpacking the articles which were contained in the boxes Mrs. Lindsay discovered that the best articles belonged to Mr. Lindsay. When all of this developed Mrs. Swain requested! that she receive her money back, but this request was denied.

It is plaintiffs’ contention that misrepresentations by Mrs. Lindsay were such as to nullify the contract and because of such, fraud was actually practiced upon her. The defendant, on the other hand, argues that forasmuch as on one occasion Mrs. Swain did attempt with Mrs. Lindsay to sell some of the clothes, actually a partnership was confected and, therefore, plaintiffs’ remedy is for an accounting from and a settlement of the partnership affairs. In support of his contention is cited Hennegin v. Wilcox-on, 1858, 13 La.Ann. 576. This postulation, however, is inapposite unless a contract of partnership was validly entered into between the parties. The cited authority concerns a partnership in esse.

Our Civil Code provides contracts may be invalidated by reason of fraud and LSA-C.C. art. 1847 treats of the nullity resulting from fraud, and particularly subd. 9 thereof which states that if artifice be practiced by a party to the contract it vitiates the contract. In order to constitute fraud there must be evident the intention to defraud, and an actual loss sustained thereby. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract. Where there has been a misrepresentation concerning a material factor which induced a party to enter into an agreement, his or her consent was thus obtained by fraud, and without the consent of a party thereto there can be no contract. See: Winzey v. Louisiana Industrial Life Ins. Co., Inc., La.App.1940, 195 So. 67; Ashley v. Schmalinski, 1894, 46 La.Ann. 499, 15 So. 1; Lopez & Co. v. Thomas McAdam & Co., 1852, 7 La.Ann. 58.

The trial judge in resolving his decision in favor of plaintiffs apparently was convinced that there was material misrepresentations. In our opinion there is no manifest error in the court’s ruling, and accordingly, the judgment from which appealed is hereby affirmed at appellants’ cost.


author: LOTTINGER, Judge.

text:
    Mrs. Odea HANKS et al. v. Nathan STUTES.
    No. 4150.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    J. Donald Aaron, Crowley, for appellants.
    Edwin W. Edwards, Crowley, for ap-pellee.
   LOTTINGER, Judge.

This is an action brought by petitioners to be declared to be the owners of certain property in the Parish of Acadia. The Lower Court awarded judgment for defendant, and petitioners have appealed.

Petitioners are the widow and sole heirs of Valsin LeBlanc, who died intestate at his domicile in Acadia Parish, Louisiana, on June 1, 1953. They claim that said Valsin LeBlanc acquired by warranty deed, the N.W. J4 °f the N.E. )4 of Section 1, Township 10 South, Range 1 East, Louisiana, Meridian, from Aladin LeBlanc by act dated April 18, 1896. On March 7, 1906, Valsin LeBlanc granted a right-of-way to The Opelousas Gulf & Northwestern Railway Co. Said right-of-way comprised a strip of land 80 feet in width running in an easterly and westerly direction across said property, and comprised 2.37 acres.

By deed dated November 3, 1913, Valsin LeBlanc sold to Joseph Aladin LeBlanc, 20 acres, more or less, being the southern portion of the tract of land acquired by him in 1896. In describing the land, the deed recites that the land is bounded on the north by the O. G. & N. E. R. Rd. right-of-way. By deed dated September 16, 1926, Joseph Aladin LeBlanc sold the said 20 acre tract to Ignace LeBlanc, who subsequently transferred said tract to defendant. In all sales the property was described as being bounded north by the rig'ht-of-way.

By deed of February 12, 1920, Valsin Le-Blanc sold the northern portion of his original tract of land to Mervin Eddie Floyd. The tract sold is described as containing 18 acres and is bounded “South by Texas & Pacific Rail Road.” Thereafter, on January 26, 1925, Mervin Eddie Floyd sold the said 18 acres to defendant, said tract still being described as bounded south by Texas & Pacific Railroad right-of-way.

On April 18, 1949, the Texas & Pacific Railroad Company, successor to the Ope-lousas Gulf and Northeastern Railway Company, abandoned their right-of-way which they had acquired from Valsin LeBlanc.

During the course of the above mentioned sales, there were fences on either side of the right-of-way. There is no question as to the legality of the above mentioned sales, and defendant admits that petitioners are the widow and legal heirs of Valsin Le-Blanc. The record shows that, upon abandonment of the right-of-way, defendant took possession thereof and sold dirt therefrom. He admits that, if petitioners are adjudged owners of the fee, then they should be given the right to file suit against him for damages resulting from his removal of dirt. The only question presented for determination is who is the owner of the fee simple title in the 2.37 acre tract which constituted the right-of-way.

In the deed of March 7, 1906, wherein the railroad company received the right-of-way, the said right-of-way is described as follows:

“A strip of land Eighty (80) feet in width, and , extending Forty (40) feet on either side of the center of said Company’s main tract to be constructed thereon,' over and across the following described tract of land, situated in said Parish and State, to-wit: being in the N.E. 14 of Section One Township Ten South of Range One East. Said strip of right of way being Twelve Hundred and Eighty Six Feet (1286) feet in length and containing Two (2) & 37/ioo superficial acres. The said right of way being along and upon the line of survey as now definitely located by said Rail Road Company.”

The petitioners claim that Valsin LeBlanc, their author in title, only granted a' servitude of passage to the railroad company and that he retained fee simple title to the property comprising the' right-of-way.They allege, therefor, that upon abandonment of the right-of-way, full rights of ownership and possession of same reverted to them as the legal heirs of Valsin Le-Blanc. The defendant, on the other hand, claims that, by the acts of sale to Joseph Aladin LeBlanc and to Mervin Eddie Floyd, said Valsin LeBlanc disposed of all his title to said right-of-way tract, and that now the defendant is the true and lawful owner of the fee of said tract.

The Lower Court rendered judgment in favor of defendant upon the following grounds:

“The extent of the servitude or right of way is controlled by the center line thereof, that is, forty (40) feet on each side of the center line of the railroad track, totalling eighty (80) feet by twelve hundred and eighty-six (1286). The Acts of Sale containing a specified acreage ‘more or less,’ and bounded either ‘North’ or ‘South’ by the railroad right of way transferred the fee of such acreage, more or less, up to- the center line of the servitude, subject to the use or easement in favor of the Railroad. By the various acts of sale the defendant became the owner of all lands lying North and South of the center line of the right of way * * *, and was the owner thereof at the time of abandonment of the right of way on‘April 18, 1949, which reverted to ' the then owner, the defendant.”

We are unable to concur with this reasoning of the Lower Court. Although the grant of right-of-way does describe same as being a strip of land 80 feet in width, and extending 40 feet on either side of the line established by survey, the right-of-way was over a strip of land 80 feet in width. When Valsin LeBlanc sold the southern portion of his property and described same as being bounded on the north by the right-of-way, he sold up to the southernmost extremity of the right-of-way. Furthermore, in selling the northern portion of his property, Valsin LeBlanc sold only to the northern extremity of the said right-of-way. Article 854 of the LSA-Civil Code provides as follows:

“If any one sells .or alienates a piece of land, from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it give him a greater quantity of land than is called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title.”

It is well settled in our jurisprudence that if a sale is made of property of which fixed boundaries are designated and set forth, the vendee receives, under the terms of the sale and description, only so much land as may be included or encompassed between the fixed boundaries given. Passera v. City of New Orleans, 167 La. 199, 118 So. 887; Carlisle v. Graves, La.App., 64 So.2d 456, 460.

But the defendant claims that, under Article 2474 of the LSA-Civil Code, if there is ambiguity in an instrument of sale, the ambiguity must be construed in favor of the purchaser. We agree with this contention, and state that'it has been upheld many times by, the Courts of this state, however,' we do' not agree that there is any ambiguity whatsoever in the' sales made by Valsin LeBlanc. The descriptions are clear that he sold up to the southern and northern lines of the right-of-way and no further.

Defendant calls our attention to the case of Chiasson v. Duplechain, La.App., 56 So.2d 615, 616. In that case, the parties owned a tract of land in indivisión. They partitioned same amongst themselves. In the act of partition, Elward Chiasson was given Lot No. 3 which was described as “ ‘being bounded on the North and East by M. L. & T. R. R.’ ” Upon abandonment of the right-of-way, a dispute arose as to who owned the fee simple title to the right-of-way tract. Judge Ellis, speaking as the organ of this Court, said :

“While plaintiff and defendants proceed upon the theory that whoever owns the property adjacent to the railroad right of way upon its abandonment became the owner of that particular piece of abandoned property, it is our opinion that whoever owned the land under the railroad right of way at the time of its abandonment was the owner, ' regardless of any 'adjacent owner. It will be noted without dispute that Chiasson, Duplechain and Willingham acquired the entire 87 acres across which this disputed strip of land ran. Unless they divested themselves of title thereto they are still the owners in indivisión. The record shows that when they partitioned this property they did not partition any part' of or include in the partition any part of the railroad right of way in dispute. The description partitioned the 87 acres up to the railroad right of way as one boundary and the black top Highway No. 214-D as another boundary. In ' other words, the plaintiff acquired a strip up to the railroad right of way on the south while Duplechain acquired a strip up to the highway on the north or east, and Willingham acquired a strip south of Chiasson. Therefore, as the railroad never did , acquire a title to the land but only a servitude or right to construct a railroad on the strip and across the land as described, which was recognized by the railroad in its act of abandonment, and in the same act the railroad quitclaims and abandons to the grantor or her heirs or assigns, who, in this case, were Chiasson, Duplechain and Willingham.”

The factors present in the Chiasson case were the same factors which are presently before us, and we there held that the owners had never divested themselves of fee ■simple ownership of the right-of-way.

Defendant also cites Rock Island, A. & L. R. Co. v. Guillory, 205 La. 154, 17 So.2d 17, 19. Said case affected a mineral lease •on lands over which a railroad right-of-way had been granted. The mineral lease described the property and then contained a recitation, “ ‘less right of way for Railroad1 ”. The Court held that the land underlying the right-of-way was included, as the language in the lease was the same as if it had read “subject to the right of way'.” In that case there was a certain ambiguity which required clarification. In the present case there is no such ambiguity.

In the present case, if Valsin LeBlanc had wished to divest himself of title to the lands underlying the right-of-way, it would have been a simple matter for him to include same in the descriptions. However, he chose to retain ownership thereof and sold by metes and bounds. We are unable to agree with the Lower Court that the sales included the lands underlying the right-of-way when it is clear that the sales included property only up to the right-of-way.

For the reasons hereinabove assigned, the judgment of the Lower Court will be reversed and there will be judgment in favor of petitioners and against defendant recognizing said petitioners, Mrs. Odea Hanks LeBlanc, widow of Valsin LeBlanc, in the proportion of an undivided interest, and Miss Lorina LeBlanc, Mrs. Elita LeBlanc Avant, widow of Dewey Avant, Mrs. Leona LeBlanc Derise, wife of Raymond Derise, Mrs. Rosalie LeBlanc Langlinais, wife of Ivy Langlinais, Clet LeBlanc, and Mrsj Margaret LeBlanc Theall, wife of Clifford Theall, in the proportion of an undivided Vis,' interest each, as the true and lawful-owners of said property and as such entitled to the full and indisputable possession of the following described property to-wit:

“2.37 acres, more or less, situated in Acadia Parish, Louisiana, described as being 80 feet by 1286 feet situated in the Northeast Quarter (NE >4) of Section One (1) Township Ten (10) South, Range One (1) East, Louisiana Meridian, and further described as being bounded on the North by lands of Nathan Stutes, on the South by lands of Nathan Stutes, and on the East by lands of J. T. Guidry Estate or. assigns, and on the West by public road.”

The rights of petitioners are hereby reserved to file suit against defendant for the damages for the removal of dirt from the above described property. All costs to be paid by defendant.

Judgment reversed.


text:
    Joan Perry PENNY, Plaintiff-Appellant, v. SPENCER BUSINESS COLLEGE, Inc., Defendant-Appellee.
    No. 8444.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.

      Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellant.
    Love & Rigby, Shreveport, for appellee.
   GLADNEY, Judge.

This is an action to recover a cash payment made in connection with a contract executed by plaintiff and defendant under the terms of which defendant obligated itself to teach petitioner a business course. Plaintiff has appealed from a judgment of the City Court of Shreveport, maintaining exceptions of no cause or right of action and dismissing her suit.

The cause of action which plaintiff attempted to set out in her petition is embraced in the following articles of the petition, to-wit:

“That on or about July 21, 1954, petitioner entered into a contract with Spencer Business College, Inc., as is more fully shown from duplicate original of the said contract hereto attached and made a part hereof;
“That by virtue of said contract entered into by petitioner and said defendant, said defendant bound and obligated itself to teach petitioner a business course, known by it as its course Number 3, in consideration of the payment to it by petitioner of Three Hundred Fifty & No/100 ($350.00) Dollars, One Hundred Twenty Two & 50/100 ($122.50) Dollars thereof being paid in cash and the balance of Two Hundred Twenty Seven & 50/100 ($227.50) Dollars to be paid at the rate of Thirty & No/100 ($30.00) Dollars per month upon entry of said petitioner in said college;
“That due to an illness of petitioner which could not be foreseen, petitioner was unable to enter said college and take said course and duly informed said defendant;
“That petitioner then called upon said defendant to return to her the One Hundred Twenty Two & 50/100 ($122.50) Dollars paid by her unto said defendant in view of the fact that the consideration therefor had failed but said defendant, though recognizing its obligation to refund said amount, has failed and arbitrarily refused to do so.”

By reference to the written contract or instrument attached to the petition, we observe that it bears the heading: “Lifetime Enrollment Certificate” and provides “For Value Received, I hereby purchase a transferable Life Certificate, delivered this date, covering a No. 3 Business Course, and in payment thereof obligate myself to pay to the order of Spencer Business College of Shreveport the sum of Three Hundred Fifty and No/100 Dollars * * *.” There follows certain data supplied by plaintiff in connection with enrollment questions.

In brief, counsel for appellant urges the exceptions should have been overruled and plaintiff allowed to show an illness prevented her attendance at school, and further, that to allow defendant to retain the money without giving anything in return would be a most inequitable and illegal procedure. It is contended that the position thus taken is supported by the following articles of the Code, which are herewith quoted:

“Art. 2301:
“He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has un--duly received it.
“Art. 2302:
“He who has paid through mistake, believing himself a debtor, may reclaim what he has paid. * * *
“Art. 2308:
“It is considered that a thing has been paid, when not due, if the payment was made by virtue of an agreement, the effect of which is suspended by a condition, the event of which is uncertain.”

Another authority referred to is 17 C.J. S., Verbo Contracts, § 465, p. 957, which provides:

“Contracts to perform personal acts are considered as made on the implied condition that the party shall be alive and shall be capable of performing the contract; so that death or disability will operate as a discharge * • *

And also cited to this same effect is 12 Am.Juris. 952, et seq:

“ * * * It is well settled that it is an implied condition that performance shall be excused in case the person who alone is competent to perform, is disabled by illness * *

In the instant case the consideration paid to .defendant was in accordance with an agreement, the validity of which is not under attack. The defendant was not paid through error, nor did it receive plaintiff’s money knowing that it was not entitled to receive it. Plaintiff’s suit is for the return of money paid for tuition and the sole ground urged for the dissolution of the contract is that she became sick and was not able to undertake the scheduled course of study. Thus, articles 2301 and 2302 of the Code have no application. Nor is article 2308 pertinent. The conditions referred to in this article certainly are not to be found in the instant contract. The condition which will suspend the effect of an agreement referred to in article 2308 is what is generally referred to as either a condition precedent or a resolutory condition, neither of which can be inferred from the subject contract.

It appears to us that by enteripg into the agreement with the defendant,'plaintiff had the following rights: she could enroll and take the course; She could, if not physically able to enter upon the scheduled term, exercise her right to enter at any subsequent term; and, finálly, if she did not take the course, the certificate was by its terms made transferable to a third person.

Plaintiff’s petition does not* allege that it will be impossible for her to attend at some time other than the scheduled term, nor does she allege that the certificate was not transferable for a valuable consideration. We may add also that there is no allegation in the petition to the effect defendant has refused or failed to permit compliance with any of the obligations imposed upon it by the agreement.

Counsel for appellant argues before this court that where it is impossible for a student to secure instruction for which tuition has been paid, there is an implied agreement that the tuition will be returned. But, as heretofore pointed out, plaintiff’s petition does not allege her impossibility of attendance. Even in this respect it falls short of stating a cause of action. The contract itself has no express limitation as to when it shall be performed by either plaintiff or defendant. It seems to us, therefore, that it was incumbent upon plaintiff in order to state a cause of action, to allege that either the contract itself was illegal or that performance by plaintiff was excused under the express or implied conditions of the contract. This has not been done.

It appears to us, therefore, that the judgment from which appealed is correct and , ,, . r¡. , , 1, ,, . should be affirmed at appellant s cost.


author: AYRES, Judge.

text:
    James J. COBBS, Plaintiff-Appellee, v. Robert B. JACKSON et al., Defendants-Appellants.
    No. 8452.
    Court of Appeal of Louisiana. Second Circuit.

      Feb. 2, 1956.
    Godfrey & Edwards, Many, for appellants.
    Piclcett & Pickett, Many, for appellee.
   AYRES, Judge.

This is a petitory action in which plaintiff seeks the correction of an erroneous tax assessment for the year 1932 of 40 acres of land in Sabine Parish, Louisiana, as well as the correction of the advertisement and adjudication thereof to the State of Louisiana and a patent subsequently issued by the State of Louisiana to plaintiff, James J. Cobbs. He asserts ownership of the property and accordingly prays that he be so decreed and recognized and as such entitled to the full and undisturbed possession thereof.

The material facts may be briefly stated. Mrs. Jane Kirkpatrick acquired by deed dated January 9, 1920, and duly recorded in the Conveyance Records of Sabine Parish, Louisiana, the NWJ4 of the NWj4 and the N% of the SWj4 of the NWJ4, Section 6, Township 8 N., R. 10 West, Sabine Parish, Louisiana. From 1920 to, and including, 1931, the property was properly assessed by its true description. However, on the assessment rolls for 1932 the property was assessed and described as the NEJ4 of the NEj4 and the N% of the SE14 of the NEJ4 of said section, township and range. The taxes on this property under that assessment were not paid. Of the property described in the assessment of 1932 the NE14 of the NE}4 was owned by the Fannie Penn Estate and the Nj/S of the SEi/j of the NEJ4 was owned by J. I. Wynn, both of whom paid their taxes in January, 1933. The taxes were never paid under this assessment, or on the property actually owned by Mrs. Kirkpatrick for 1932. Accordingly, on October 21, 1933, as evidenced by an instrument or deed to that effect, duly recorded in the Conveyance Records of said Parish, an adjudication under this assessment was made to the State of Louisiana.

Plaintiff, with the intention of making application for a homestead entry on the Jane Kirkpatrick land, established his residence thereon and moved his family on this property during 1947, since when he has continued to occupy this property as his home. He has improved the property by clearing and cultivating a portion of the land, by erecting fences and building additional rooms to a small house which was already on the property. He moved on the property that was actually owned by Mrs. Kirkpatrick at the time the assessment was made. That was the only property owned by Mrs. Kirkpatrick in Sabine Parish, or in Ward 4 of said Parish.

In due course, under date of October 2, 1953, a patent was issued by the State to plaintiff wherein the property was described as originally set out in the assessment, advertisements and adjudication to the State. This patent was filed for record and duly recorded in the Conveyance Records of that Parish.

The defendants at interest are the heirs of Mrs. Jane Kirkpatrick; Robert B. Jackson, Tax Assessor; T. M. Phillips, Sheriff and Ex-Officio Tax Collector, and Ellen Bryan Moore, Register of the State Land Office. As to these officials issue was joined by the filing of their pro forma answers. The other defendants, the heirs of Mrs. Kirkpatrick, first filed exceptions of no cause and of no right of action, which were referred to the merits, -and, in their answer, alleged that the tax sale referred to in plaintiff’s petition was null and void and without force or effect so far .as the NWJ4 of the NWJ4 and the N% of the SWJ4 of the NWJ4, Section 6, Township 8 North, Range 10 West is concerned, because the tax sale did not reasonably identify that,property, and, further, that they received no notice of such sale and were without knowledge thereof.

In reconvention, defendants asserted ownership of said property and prayed that said tax sale be decreed null and void and that they be decreed the true and legal owners of said property and entitled to the possession thereof.

Plaintiff then filed a plea of estoppel, alleging that defendants are barred and precluded from contesting the correctness of the assessment inasmuch as neither they nor Mrs. Kirkpatrick rendered their property for assessment and. complied with the requirements of Section 3 of Act 182 of 1906, as amended, LSA-R.S. 47:1956.

Plaintiff additionally filed a plea of three and five years’ peremption under Section 11, Article 10, of the Constitution of Louisiana of 1921-LSA. Both pleas were referred to the merits, and after trial on the merits, the court sustained plaintiff’s plea of per-emption, and, accordingly, decreed plaintiff the owner of said property and as such entitled to the possession thereof.

From the judgment thus rendered and: signed, defendants, the heirs of Mrs. Jane Kirkpatrick, appealed. Plaintiff has not; answered the appeal.

The issues can be restricted to one, that as to the adequacy and sufficiency of' the tax adjudication to reasonably identify- or describe the property. If the tax deed is sufficient in this respect, although improper or erroneous, the jurisprudence is. well settled that the plea of peremption, would be applicable and was correctly sus-, tained in this case. On the contrary, if the-property was so inadequately described to, the extent that the property cannot be located or identified, the plea of peremption, would be inapplicable and could afford no. relief to plaintiff. The assessment sheet, page 4, designated “Ward 4 Non-Res.” for 1932 shows this assessment under No. 78: and the name and address of taxpayer as. “Kirkpatrick, Mrs. Jane, Boyce, La.”; number of acres, “48”; description of the property, “NEK of the NEJ4, N% of the SE& of the SE14, Sec. 6-8-10; Wd. 24 acres 96; C-0 acres 96”. Then follows the actual cash value of $192 "for assessment purposes and the amount of taxes. “Wd.” evidently refers to woodland of 24 acres having an assessed value of $96, and “C-O”, to cut-over lands, 24 acres, likewise of a value of $96, or a total of $192.

LSA-R.S. 47:2181 provides for the advertisement and sale of property for delinquent taxes. This section, in part, provides :

“For the purpose of tax sales it shall be sufficient to advertise all property in the name of the person or persons, whether dead or alive, who at the time the assessment was made appeared to be the owners thereof upon the books, of the conveyance office in the parish of Orleans, and of the recorder’s office in the other parishes of the state.
“For the purpose of tax sales it shall be sufficient to assess and describe all property assessed in the following manner : by designating the tract or 'lot by the name by which it is commonly known, or by the number or letter by which it may be usually designated upon the regular assessment rolls or upon an official or private plan or sketch or by giving the boundaries or the names of the owners upon each side, or by the dimensions or-description or name given in the act translating the ownership thereof, or by such other further description as may ftirnish the means of reasonable identification.
******
“No tax sale shall be set aside or annulled for any error in description or measurement of ' the property assessed'in the name of the owner provided the property sold can be reasonably identified. * * * ” (Emphasis supplied.)

Title.47, Section 2184, of the LSA-Revised Statutes also provides:

' “The tax sale shall convey, and the purchaser shall take, the whole of the property assessed to the delinquent taxpayer if it is' the least quantity sufficient to satisfy the aggregate of all taxes, interest, penalties and costs. If the property is not divisible in kind and a part of the whole or undivided interest is sufficient to satisfy such aggregate charges, the collector shall require the bid or bids to be for such lesser portion of the whole property as will satisfy such charges and shall -not entertain a bid in excess thereof. The tax sale shall convey and the purchaser shall take the entirety of the property intended to be assessed and sold as it •was owned by the delinquent taxpayer regardless of any error in the dimensions or description of the property as assessed and sold. The tax collector in the advertisement or deed of sale may give the full description according to original titles.” (Emphasis supplied.)

It is apparent that the property of Mrs. Jane Kirkpatrick was erroneously assessed by an incorrect description. That this was a clerical or typographical error was established by the testimony of Robert B. Jackson, who has been Tax Assessor of Sabine Parish since January 1, 1921. The property described in the erroneous assessment was owned by third parties, the taxes upon which were paid during January, 1933. According to the assessor’s testimony, no rendition of assessment was made by Mrs. Kirkpatrick for the year 1932 or for any years immediately preceding that date.

First for consideration is the inadequacy of the description of the property alleged as the ground for absolute nullity of the adjudication. Plaintiff contends, however, that this is barred as a ground of nullity by the peremptive provisions of the Constitution under the well established and recognized rule of law that if the description of the property in the assessment or the tax deed, although erroneous and improper, is reasonably sufficient to identify the property or to furnish’the means for identification, the peremptive provisions of the Constitution apply and the tax sale or adjudication is not subject to attack. There are numerous cases in our jurisprudence which have recognized and applied the above rule of law. The Supreme Court has held that even the State or one of its subdivisions may plead the peremption established by the Constitution in a suit to annul a tax sale instituted more than five years after the recordation of the tax deed. See Westover Realty Co., Inc., v. State, 208 La. 163, 23 So.2d 33. The question, therefore, is whether the description of the property as contained in the documents under attack is so indefinite, improper and inadequate that the property which the instruments purport to convey cannot be reasonably identified. Errors as serious as these are not cured by the peremptive period.

In Knapp v. Jefferson-Plaquemines Drainage Dist., 224 La. 105, 68 So.2d 774, 775, wherein the validity of a tax sale was questioned as to the adequacy and sufficiency of the description, wherein the property was simply described as

“ ‘A certain tract of land situated on the right bank of the Mississippi River, and .designated as 768.16/100 acres. Parcel of land in T. 15 S.R. 24 E. West of River’ ”,

it was stated:

“In the jurisprudence of this state it is well settled and established that, where a tax sale is made under an assessment in the name of the owner and an error is made in the description of the land intended to be assessed, the tax sale under such assessment is valid if, notwithstanding the error in description, the land can be reasonably identified by the assessment or description as found in the tax deed, or if the description therein furnishes the means for such identification. Further, if a description of the property intended to he assessed or sold, is so indefinite and imcertain as to be defective, resort may he had to evidence outside the assessment roll or tax deed to identify the property, provided such evidence establishes unmistakably the identity of the property. The ‘cases generally hinge on the point as to whether the description is such as to enable interested per-. sons to identify the property. Tillery v. Fuller, 190 La. 586, 182 So. 683, and the numerous authorities therein cited; Jackson v. Irion, 196 La. 728, 200 So. 18, 133 A.L.R. 566; Yuges Realty v. Jefferson Parish Developers, Inc., 205 La. 1033, 18 So.2d 607.
“With the foregoing rules in mind, let us examine the tax deed itself and all other evidence adduced outside the deed to determine whether the deed furnishes a means of reasonable identification, or, if not, whether the evidence adduced outside the deed unmistakably establishes the identity of the property.” (Emphasis supplied.)

By resorting to evidence outside and beyond the assessment roll or the tax deed to identify the property, the description was held to sufficiently and unmistakably identify the property. The court said:

“The description in the tax deed, therefore, when considered with the other relevant evidence, is sufficient to identify unmistakably the property sold at the tax sale in 1921 as the same property described in the 1914 deed to Barker, who the plaintiffs claim is their author in title and from whom they claim.”

Where, in Tillery v. Fuller, 190 La. 586, 182 So. 683, which also involved tax sales, the sufficiency of the descriptions of the property was in contest, the Supreme Court held that, although the descriptions were incorrect and improper, they were reasonably sufficient to identify the property and the sales were held valid. The errors complained of, similar to the errors complained of here, were stated by the Court on page 689 of 182 So., as follows:

“On June 23, 1900, Noah Tyson bought at a tax sale, under an assessment in the name of T. J. Wilson, a half interest in 160 acres of land which was described on the assessment roll and in the tax deed as the SH of SEi/4 and m/2 of SE14 of Section 14, T. 23, R. 16. It is contended by the defendants, heirs of Noah Tyson, that this description was merely an incorrect description of the tract of 160' acres forming the SJ4 -of SE14 of Section 11 and N% of ‘NE% of Section 14, because T. J. Wilson owned' that tract of 160 acres, but did not own any part of the SEy of Section 14. [Emphasis supplied.]
“On July 15, 1911, Noah Tyson bought at a tax sale, under an assessment in the name of T. J. Wilson, a half interest in 240 acres of land described as S% of SE14 of Section 13, Ni/£ of NE}4 of Section 14, and WJ4 of NW14 of Section 13, T..23, R. 16; That is an accurate description of the 240 acres of land now in contest, except that the description in the tax deed calls for Sy of SEy. of Section 13, instead of the Sy of SE^y of Section 11. It is contended by the defendants, heirs of Noah Tyson, that number ‘13’, in the tax deed, is merely a clerical error,. intended for the number ‘11’) because the 240 acres of land which T. J. Wilson bought at the tax sale in 1890 included the Sy¿ of SE|4 of Section 11; and Wilson did not own- or claim the Sy of SE14 of Section 13, or the Sy of SE]4 of any other section except Section 11.” (Emphasis supplied.)

In discussing this phase of the case, the author of the opinion stated:

“Wilson had never had any interest in the 80 acres forming the Sy of SE]4 of Section 13, which -is apart from the 160 acres forming the. WJ/á of NWi4 of Section 13 and Ny of NE% of Section 14, and correctly .described in the assessment and in tire-tax deed. There is no doubt that, the figure ‘13’, first appearing in the assessment and in the tax deed, was intended for the figure Tl’, and hence there is no doubt that the 240 acres of land intended to be described'in the assessment is the land in contest in this Suit.' In the case of Vannetta v. Busbey, 131 La. 681, 60 So. 76, a tax sale of a quarter-section of land described in the assessment and in the tax deed as being in Tozvnship 8 was held to be a valid sale of the corresponding quarter-section in Township 9. In Hollingsworth v. Poindexter, 156 La. 621, 100 So. 790, where, in the assessment to Hollings-worth, and in the tax sale, of 560 acres of land in Section 16, the 80 acres forming the wy of NEy, which belonged to Hollingsworth, was omitted, and the 80 acres forming the Wy of NWy, which did not belong to ITol-lingszvorth, was included, the tax sale was held to be a valid sale of the Wy¡ of NEy, belonging to Hollingsworth. In the case of Gayle v. Slicer, 188 La. 940, 178 So. 498, a tax sale of 80 acres of land described in the assessment as the Ey of Sivy of Sec. 8, T. 17, R. 11, was held to be a valid sale of the Ey of NEy of the section, after the lapse of three years from the date of the recording of the tax deed. According to these decisions, and the others which we have cited, the tax sale to Noah Tyson in 1911 was a valid sale of the Sy of SEy of'Section 11, after the lapse of three years from the date of the recording of the tax deed.”

In the Tillery-Fuller case it was also held that payment of the taxes on property erroneously described in an assessment, by its owners was not such a dual assessment or payment of taxes as to make .inapplicable the plea of peremption. In making .such payment the owners undoubtedly intended to make payment of their own taxes on their own property, and not the taxes due by the tax debtor on his property but which had inadvertently -and through error given the description of such other person’s property.

In Jackson v. Irion, 196 La. 728, 200 So. 18, 19, 133 A.L.R. 566, the validity of tax sale was upheld under an assessment for taxes of 1926, whe'rein the owner was designated and the property described as follows :

‘Jackson, Willis
“ ‘One City Lot at Eola’.”

The deed executed pursuant to that tax sale' déscribed the property as “ ‘One City lot in Eola’ ”. The Supreme Court affirmed the district court in sustaining pleas of three years’ peremption, the peremptive period under the Constitution of 1921 prior to its amendment in 1927 and in 1932, and of five years’ peremption, as provided by Article X, Section 11, of the Constitution, as amended. There the tax purchaser located the property and took possession; here the plaintiff, under a patent from the State, likewise located the property, took possession and is now and has been since 1947 •occupying the same. The court followed the holding in the Tillery v. Fuller case, supra, and, with the aid of evidence introduced outside of the assessment roll or the tax deed, held that in such cases the identification of the property intended to be assessed may be confirmed by proof that the party in whose name -the property was assessed did not own any other property in the section or other subdivision given in the assessment. 'The court then stated:

“It would subserve no useful purpose to review the jurisprudence further. It suffices to say that the property here involved was assessed in the name of the true or record owner, and that the description on the assessment roll and in the tax deed was such as to enable' the tax purchaser to identify the property and to enable the parish surveyor to find it on the ground; and further, that the testimony taken at the trial ■showed that the record owner of the lot sold owned no other property in the vicinity of Eola or elsewhere in the parish.
“Eola is not a village or a town, but is rather a community or settlement, which bears the name of a railroad station near by. There, are no streets or blocks laid off. The testimony shows that more than 40 years ago a man by • the name of Jase, who owned a tract of land near the railroad station Eola, sold to each of 9 or 10 persons a lot or plot, of ground. These lots or plots are of varying sizes, shapes,' and dimensions, and are all grouped together, as shown by a map filed, in one large' plot approximately 900 feet by 600 feet. The purchasers of these lots were colored people, who built their homes there; Willis Jackson being one of them. This settlement was referred to generally as ‘Eola Freetown’, and the testimony shows that the people generally knew what was meant when a lot in or at Eola was referred to. There is no other Eola in the Parish of Avoy-elles — no other settlement by that name.
“The parish surveyor made a plat of this Eola settlement in 1938, which plat is in the record. He testified that, when he was requested to make the survey and plat, he went to Eola and asked some of the settlers to show him the Willis Jackson lot, and that they promptly did so. He said he found no trouble whatever in locating the Willis Jackson lot. In making the survey and plat,'he used the descriptions found in the deeds made by Jase to the various purchasers.
“That the tax purchaser did locate the property and- take possession of it after his purchase is not disputed.”

The court held sufficient the testimony of the deputy tax assessor that there was no other property assessed' in the name of Willis Jackson in Avoyelles Parish in the year 1926 sufficient to establish that fact, particularly in view that no testimony was offered in rebuttal.

It was stated in Gayle v. Slicer, 188 La. 940, 178 So. 498, 500:

“If a tax sale is made under an assessment in which the description of the property is so defective or imperfect that resort must be had to evidence outside of the assessment, in order to identify the property intended to be assessed, but if the property intended to be assessed can be identified by such outside evidence, the invalidity in the tax sale is cured by. the prescription or peremption, of 3 years. Close v. Rowan, 171 La. 263, 130 So. 350.
“Aside from the fact that the error in the description in the assessment of the land, in this case, was corrected before the sale was made, our opinion is that the land could have been identified by the description in the assessment, taken in connection with the fact —which was proved on the trial of this case, and was not disputed — that Jackson Gayle did not own any other land except the 80 acres described as the E. of N.E. 14 of section 8, T. 17 N., R. 11 W. It is well settled that the identification of the land intended to be assessed, when there is an error in the description in the assessment, may be established by proof that the party in whose name the land was assessed owned only one tract of land within the area or subdivision mentioned in the assessment.”

This court, in Brown v. Tauzin, La.App., 163 So. 764, 767, upheld the validity of a tax sale of the NWJ4 of the SWY&, Section 15, and the SWJ4 of NE14 and the SEJ4 o-f the NW%, Section 22, Township 9, Range 8 West, against a charge that the same was illegal, null and void, wherein the property was described as giving the correct subdivision and section numbers but declared said lands to be in Township 8, Rang,e 9 West. In the course of his opinion, Judge Taliaferro, as the organ of the court, stated:

“Defendant sought to prove by the tax assessor of Natchitoches parish, and others, that plaintiffs owned no land in Natchitoches parish at date of tax sale other than that described in their petition; that it was located in ward 1 of the parish; that defendant experienced no trouble in locating the land she went into possession of, and made no effort to take possession of the corresponding subdivisions in township 8, range 9 west; that township 8, range 9 west, is in ward 6 of the parish; that the tax assessor checked on his plat book the Brown lands in township 9, range 8 west, as belonging to Mrs. Tauzin after the tax sale; that the lands in township 8, range 9 west, were owned by other persons than plaintiffs in 1929, and taxes thereon paid prior to tax sale to defendant.”

This testimony was objected to on the ground that parol testimony is not admissible to change or vary a deed and that the evidence proffered was irrelevant and immaterial. The objections were sustained and defendant reserved a bill of exception, to which was attached the testimony sought to be introduced. In that regard it was stated:

“The excluded testimony was admissible under the well-established jurisprudence of the state. Its purpose was to establish reasonable identity of the land intended to have been assessed and sold to defendant. This is all that is necessary under the law, and especially under Act No. 140 of 1890. Where the description in the tax deed is uncertain, resort may always be had to title of the tax debtor, along with other pertinent evidence, in order to establish identity of the land intended to be sold for taxes. As the testimony excluded in this case was taken in ex-tenso and is in the record as part of the bill of exception, it may and will be given its due weight by us. It discloses that the only land owned by plaintiffs in Natchitoches parish in 1929 was that described in their petition, of which defendant took immediate possession following her purchase at tax sale; that her possession was undisturbed until filing of present suit in December, 1934; that said land is in ward 1; that the corresponding land in township 8, range 9 west, is in ward 6, and was then owned by other persons and taxes thereon timely paid. This testimony, supported by other of similar character, clearly shows that describing the land on the tax roll as being in township 8, range 9 west, was simply a clerical error on the part of the assessor, which was carried, in like manner, into defendant’s deed, and that plaintiffs’ land alone could have been intended.” (Emphasis supplied.)

In support of the above ruling the following cases were cited: Willis v. Ruddock Cypress Co., 108 La. 255, 258, 32 So. 386, 387; Weber’s Heirs v. Martinez, 125 La. 663, 51 So. 679, 681; Gouaux v. Beaullieu, 123 La. 684, 49 So. 285, 289. In the Gouaux . v. Beaullieu case, cited supra, it was stated in quoting from Corkran Oil & Development Co. v. Arnaudet, 111 La. 563, 586, 35 So. 747, “ ‘Gellert did identify it [the land] and took possession as owner.’ ” Pierson v. Castell Land & Harbor Co., Inc., 159 La. 158, 105 So. 274, 276.

The Supreme Court reversed this court in the Brown v. Tauzin case but upon other grounds. 185 La. 86, 168 So. 502. See also Nebraska-Tensas Co. v. Moritz, 157 La. 174, 102 So. 195.

Defendants cite, in support of their contention, Morris v. Hankins, 192 La. 504, 188 So. 155, which is clearly distinguished from the case now before the court in that the description of the property was not even identified by the extraneous evidence offered to prove the identity of the property sold. Also cited was Fluker Farms v. James, La.App., 79 So.2d 166, and Quatre Parish Co. v. Beaufegard Parish School Board, 220 La. 592, 57 So.2d 197. Neither of these cases is applicable to the facts here. Both correctly hold that in view of the fact that the tax deeds accurately described an entirely different tract of land from that intended to be conveyed, its registration was ineffective as to third persons. No contention could be raised as to the correctness of that proposition. However, third persons are not involved in the instant case. The defendants at interest are the heirs of the tax debtor.

Article 10, Section 11, of the Louisiana Constitution of 1921, as amended, provides a. period of peremption of five years from the date of the recordation of the tax deed, after which a sale of the property for taxes shall not be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served Until the time of redemption shall have expired, (a period of three years dating from the recordation of the tax deed) and within five years from the date of the recordation of the tax deed, if no such notice was given. The tax adjudication of the property involved was duly recorded December 4, 1933, in the Conveyance Records of Sabine Parish, Louisiana.

Neither Jane Kirkpatrick nor her heirs have exercised any control or had any possession over the property since its adjudication to the State. .Therefore, plaintiff’s plea of five years’ peremption was correctly sustained. The Kirkpatrick heirs, having been divested of any title or interest in the property by the aforesaid adjudication, are without right or interest to question the validity of the subsequent proceedings wherein the State granted a patent to plaintiff, with the intent and purpose of conveying to plaintiff the property involved here, and as to which the State, represented by its proper officials, made no opposition.

Pertinent here is the holding in Willis v. Ruddock Cypress Co., supra, wherein plaintiff sought to recover property under facts similar to' defendants’ claim in this case, in which the court stated [108 La. 255, 32 So. 387]:

“This ground, as we understand it, is the same urged later in plaintiff’s brief, namely, that the officers in charge of the state land office were without authority to sell this land to W. R. Rutland' by patent, that the land could be validly sold only in pursuance of the statutes passed expressly to provide for the sale of lands acquired by the state at tax sale. The suit being a petitory action against a defendant claiming title, this title, if still vested in the state, would be just as effectual a bar to the suit as if vested in defendant; hence plaintiff has no interest in the question. Plen.La.Dig. p. 1114.”

The judgment decreeing plaintiff the owner of the property is correct and will be affirmed.

For the reasons assigned, the judgment appealed is affirmed at appellants’ cost.

Affirmed.


author: TATE, Judge.

text:
    J. H. CAIN et al., Plaintiff in Rule-Appellee, v. CENTRAL PLUMBING AND HEATING COMPANY, Defendant in Rule-Appellant.
    No. 4131.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Lecompte, Hall & Coltharp, DeRidder, for appellant.
    Kay & Kay, DeRidder, for appellee.
   TATE, Judge.

The Central Plumbing and Heating Company, a partnership, appeals from judgment rejecting its claim for payment for certain plumbing supplies and services, and ordering cancellation of its lien therefor, recorded against certain property foreclosed under a mortgage held by plaintiffs, Mr. and Mrs. J. H. Cain. Subsequent to the sheriff’s sale of said property, the aforesaid appellant partnership (hereinafter referred to as “Central”) was made defendant in a rule to show cause why its lien in the principal sum of $900 should not be cancelled and erased, and praying for the court to determine any right of the lienholder to any part of the proceeds of the sale.

The sole question for our determination is whether Central’s labor and material-man’s lien was timely recorded to preserve its lien and privilege under LSA-R.S. 9:-4801 et seq. as a furnisher of plumbing supplies and services in. construction of the building on the property seized and sold herein. More precisely, both parties admitting that in the case of a completed building the lien must be recorded within 90 -days after the last work is done or material furnished, the question herein in this case •of a building never compléted according to specifications by the original owners is by what date, if any, is a materialman required to file his lien in order to protect his claim against the property ?

To summarize the facts, as to which there is no conflict for appellate purposes: A carpenters’ local union purchased some land and commenced the construction of a building thereupon as owner, which lot and building are the property seized and sold by the plaintiffs-creditors herein. Construction commenced in September of 1952. Afterwards, the $20,000 mortgage held by plaintiffs and foreclosed upon herein was executed and recorded on February 13, 1953. The process of construction was somewhat leisurely, because although the materials were purchased from union funds and from the proceeds of the loan, the bulk of the labor was contributed by the members of the local union from their spare time. Becoming financially embarrassed, the union was unable to complete and finish the upstairs of the building and the stairs leading thereto, according to the original specifications, although the remainder of the building was so completed. The incompleted work, estimated to cost $2,000, was chiefly finishing, such as a celotex ceiling, a finished floor above the secondstory sub-floor, permanent treads on the stairs, etc. The last actual work done upon the building was done not later than April of 1954, when the downstairs was painted and trimmed for purposes of renting it to a commercial user, which subsequently was done. All of 'Central’s work had been performed prior to that time, although Central did not execute its lien for the remaining balance due of $900 until December 20,’ 1954, which was filed the following day in the mortgage records.

The following is the pertinent part óf the statute, LSA-R S. 9:4812, under which the lien and privilege as a furnisher of labor and supplies is claimed:

“When the owner * * * undertakes the work of construction * * * for which no contract has been entered into * * * then any person furnishing service or material or performing any * * * may record * * * a copy of his estimate or an affidavit of his claim * * * which recordation, if done within sixty days after the date of the last delivery of all material upon the said property or the last performance of all services or labor upon the same, by the said furnisher of material or the said laborer, shall create a privilege upon the building * * (Italics ours.)

Astutely, and with considerable logic, counsel for appellant urges that the language requiring recordation of the privilege within sixty days after the "last delivery of all material” or the “last performance of all services or labor” clearly means within sixty days of the date of final completion of work. Alternatively, it is urged that this date could be not later than the date the owner abandons his intention of completing the work. ' Thus, it is argued, Central’s lien was timely recorded and primes plaintiffs’ mortgage, which was not recorded until after the construction had commenced, since: (a) the building was never finally .completed according to its original specifications; (b) allegedly, the owner .had not abandoned his intention of finally completing said building when Central’s lien was recorded on December 21, 1954.'

Appellant relies upon National Homestead Association v. Graham, 176 La. 1062, 147 So. 348; Rathborne Lumber & Supply Co. v. Falgout, 222 La. 345, 62 So.2d 507; and Singer Lumber Co., Inc. v. King, La.App., 45 So.2d 567. Although the former two Supreme Court cases refer to the provision as meaning requiring the recordation of the lien within sixty days after “the final completion of the structure”, the Supreme Court explained this phrase by stating in the Graham case at 147 So. 352: “The work is completed when the last material is furnished and the' last labor is performed.”

In the Graham case for instance, the apartment house was never finally completed as originally planned due'to .financial difficulty of the owner, much the same as in the present case. In sustaining the lien filed on November 5, 1930, the Supreme Court pointed out that labor was performed on the building at least up through October 1. If the Supreme Court had intended to hold that the lienors had 60 days within which to record their privilege after work was “finally” completed in the sense contended by appellant, it appears that it was unnecessary to find that labor had been performed up through October 1, since the Graham building was never finally completed as planned any more than was the building in the present case. (The Falgout case simply quoted from the holding in the Graham case, but did not involve construction. of the clause in question.)

Considerable support is given to appellant’s position by the Orleans Court of Appeal decision reported at Singer Lumber Co., Inc. v. King, above cited. Perhaps; aá appellee urges, this case can be distinguished, since the appellate and district court found that well within the period of sixty days before the lien Was filed, the owners had not abandoned the project and were hoping to have the contractor recommence operations; whereas it is otherwise in the instant case for all practical purposes after April, 1954, when the downstairs was finished and for rent, and the upstairs was in use by the owner as a meeting room, and also rented for such purposes to two or three qther unions. The Orleans Court, like ourselves, found it difficult that the time within which the lien must be filed should start running by an act evidenced by “the mere mental determination of the owner that the work is abandoned”. We feel that the objective manifestation of the completion, namely,, when the, last work was actually done on the contract, is a more reliable indicia of completion of the work,.!, e., the rule of the Graham case.

But further, our Supreme Court has rev jected roughly similar arguments made on behalf of the lienholder in Trouard v. Calcasieu Building Materials, 222 La. 1, 62 So.2d 81, where although the building had been occupied for a few weeks by a purchaser and no work upon the building had been done upon the building for seven months before filing of the lien in question, the building was still incomplete and not finished in the sense that the federal lending agencies required certain additional minor work or repairs, such as installation of a sidewalk, etc., before approving it for the loán. While -this case may be distinguished from the present, since the additional work and repairs were not required in the original plans and specifications, the decision indicates a construction so as not to extend the privilege indefinitely, and reaffirms the rule of the Graham case that if the work is done by the owner, “ ‘the work is completed when the last material is furnished and the last labor is performed’ ”, 62 So.2d 83. See also Hortman-Salmen v. White, 168 La. 1067, 123 So. 715, and (under earlier Act) Gleissner v. Hughes, 153 La. 133, 95 So. 529, especially on rehearing, 153 La. 145-146, 95 So. 533, to the effect that the time within which the lien must be recorded starts to run from the time the building is considered as completed, being when the final labor is performed or material furnished and it is occupied by tenants, even though technically the building is not completed or finished at that time.

Partially based on this last case, is a group of decisions holding the date of the last material furnished or work done for purposes of the builder’s lien act to be the date by finishing of construction and by occupancy, when the building is treated or considered as complete, even though subsequent thereto minor repairs or corrections of defects or minor additions to the work are performed, Hayes Lumber Company v. H. M. Jones Drilling Co., 177 La. 626, 148 So. 899; Hicks v. Tate, La.App., 1 Cir., 7 So.2d 737; Bailey & Sons v. Western Geographical Co., La.App., 66 So.2d 424; Electrical Contracting Co. v. Brown, La.App., 39 So.2d 100.

For similar reasons to those expressed in these cases — to avoid an indefinitely, lingering time within which to record liens to the possible unreasonable displacement of the rank of mortgages and other subsequent claims against said property — the construction accorded the statute by the District Court and ourselves seems sounder than that urged upon us by appellant.

For the reasons above assigned, the judgment of the District Court herein is affirmed. Cost of this appeal to be paid by appellant.

Affirmed.


author: ELLIS, Judge.

text:
    Willie ROGERS v. E. E. WELDON et al.
    No. 4124.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Broyles & Funderburk, Leesville, for appellant.
    Pickett & Pickett, Many, Gravel, Hum-phries, Sheffield & Mansour, Alexandria, for appellees.
   ELLIS, Judge.

Plaintiff instituted this suit for the recovery of workmen’s compensation in the maximum amount for the maximum number of weeks and for the additional sum not to exceed $1,000 as medical expenses plus 12%% as a penalty, together with reasonable attorney fees as provided by LSA-R.S. 22:658.

The suit was filed'against one E. E. Weldon as “employer” and Coal Operators Casualty Company as “insurer.”

After trial the learned judge of the lower court with excellent written reasons dismissed plaintiff’s suit as to both defendants, basing his judgment upon a finding of fact that there was no relationship of employer-employee between plaintiff and defendant, not that of subcontractor between plaintiff’s actual employer, Allen, and the defendant, Weldon, and the further finding that the Coal Operators Casualty Insurance Comp,any was not the. insurer of the de-, fendant Weldon.

The District Court has very carefully and correctly detailed the facts in the case “as regards plaintiff’s employment, as it relates to whether he was in the direct employ of Weldon, or of Ethan Allen, and whether the latter was the sub-contractor of Weldon” as follows:

“Rogers, the plaintiff, testified that he was working for Ethan Allen; when the accident occurred Allen was driving the truck; they had been in the woods to get a load of pulpwood; Allen took him to the doctor; he remained in the hospital 10 days; Allen was his immediate boss and paid plaintiff .$2.50 per load, three loads per day of six days per week; he loaded and unloaded the wood; he cut some of the wood with a power saw; Coal Operators paid him compensation up to March 20, 1955, and no one else paid any; he was working for nobody else than Ethan Allen on November 24, 1955 (1954). The record of the compensation payments was filed in evidence, marked ‘P-6’.

“Ethan Allen, plaintiff's witness, testified that he was engaged in the pulpwood business and had plaintiff, Beasley, and Holbert working for him; he paid two men $5.00 per load; they made three loads or better per day, six days per week; plaintiff was injured while working for Allen; he was hauling pulpwood for Weldon; he loaded the wood onto racks (railroad cars equipped for hauling such wood) ; he ordered the cars; Weldon had told him how to order the cars; Weldon instructed him as to where to bill (ship) the cars; he looked to Weldon for his money at so much per car for the wood; different people owned the stumpage • and timber he cut; Weldon told him he would buy any timber he found; he did find one tract and Weldon sent a man down to look at it but the tract was not bought; when Rogers got hurt, Weldon told Allen if any of them got hurt let them know; at Allen’s instructions, one of the nurses called Weldon from the hospital when plaintiff was there; he went up there (presumably to Weldon’s) and they made out the accident report; he was paid directly by Weldon for the wood and produced for nobody else; he sold Weldon two car loads of wood; he hauled for nobody else than Weldon in 1954 and shipped two cars for him; he owned his own truck equipped for hauling pulpwood; his agreement with Weldon was that he would haul pulpwood and Weldon would pay him for it $300.00 per rack or car load; he hired Plaintiff, himself, and the others who were working for him; Weldon did not tell him who to hire or fire, when to work and when not to work, when to haul or when not to •haul, wood was all he wanted; he didn’t tell him when or where to get the wood; if he hadn’t got the wood he couldn’t have sold it to Weldon; the wood he did get was gotten from different people and he, personally made the deal, cut it and went and got it and paid the owners for the wood; he loaded it onto the cars and was paid $300.00 per car load for it; he paid plaintiff and Weldon did not pay the wages; he bought the wood from anybody from whom he could get it, and then cut it, hauled and loaded it onto the cars; after the car was loaded, he took the bill of lading to 'Weldon and got his money; he never bought any timber for Weldon, but bought for himself and himself paid for it; he made his own arrangements for the wood he was cutting and hauling when plaintiff was hurt and bought it from different people; Weldon didn’t know from where the wood came nor what he paid for it; all Weldon was interested in was wood delivered on the car and plaintiff’s witness Allen testified that he made his own arrangement as to where he would get it and how much he paid for it and he paid for this particular wood himself (as he had said he did for all other) out of what Weldon paid him and shipped the wood in his own name to a paper mill in West Monroe, Louisiana, but he said it was shipped in Weldon’s name, but that he, Allen, signed the bill of lading.

“Defendants offered no evidence.”

From the above quoted facts the lower court concluded that the plaintiff was not an employee of Weldon but was an employee of Ethan Allen, and that Ethan Allen was not a subcontractor of Weldon as a contractor or otherwise. It further held that the insurance company was not the insurer of Weldon and for that reason dismissed the case as to them.

The learned judge of the District Court reviewed the jurisprudence as to the question under consideration, most of which, as he stated, is set forth in and was taken from Volume X, pages 25 et seq., Louisiana Law Review by Wex S. Malone, Professor of Law, Louisiana State University.

The case at bar is practically on all, fours as to facts with Smith v. Crossett Lumber Co., La.App., 72 So.2d 895, in which our brethren of the Second Circuit held that “Where independent producer of logs and pulpwood secured his own timber, hired his own employees, produced pulpwood, transported it to railroad, and sold it to third person, who billed and shipped pulpwood to lumber company, third person and lumber company were not liable under the Workmen’s Compensation Act, * * * since relationship between independent producer and third person and lumber company was not that of employee ‘and employers, but that of seller and the buyers.” Also see Harris v. Southern Kraft Corporation, La.App., 183 So. 65; Harville v. Eicher-Woodland Lbr. Co., 3 La.App. 406; West v. Martin Lumber Co., 7 La.App. 366; Anthony v. Natalbany Lbr. Co., La.App., 187 So. 288; Whitley v. Hillyer-Deutsch-Edwards, Inc., La.App., 142 So. 798; Reed v. J. W. Jefferies Lbr. Co., La.App., 9 So.2d 87; Windham v. Newport Co., La.App., 143 So. 538; Miller v. Brenner Lbr. Co., 8 La.App. 141.

Defendant contends in his brief that the facts in the above cited cases are not the same as are those in the case at bar, for in the latter the Brown Paper Company of Monroe would be the buyer and E. E. Weldon, the seller, if a buyer-seller relationship existed in the present case. This is true as between Brown Paper Company and Weldon, but as between Weldon and Allen, employer of the plaintiff, the latter is the buyer and Weldon is the seller.

Defendant also argues and contends that one Godfrey, for whom the defendant Coal Operators Casualty Insurance Company carried compensation insurance, and defendant Weldon both testified that they thought the insurance did cover the plaintiff, and in view of the fact that the defendant insurance company paid some $300 of compensation before finding out that they were not liable and were not the insurer of Weldon, that the defendant insurance company was liable to defendant. This contention was correctly disposed of by the trial judge with the following citation and authorities: •

“ ‘Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this-Chapter.’ [LSA] R.S. 23:1204. Fields v. General Cas. Co., 216 La. 940, 45 So.2d 85; Foret v. Paul Zibilich Co. [18 La.App. 363] 137 So. 366; Franz v. Sun Indemnity Co. [La.App.] 7 So.2d 636; Benjamin v. Standard Acc. Ins. Co., 152 La. 874, 95 So. 428; Chance v. T. J. Moss Tie Co. [La.App.] 31 So.2d 19.”

Being of the opinion that the trial judge has correctly disposed of the issues in this case, the judgment dismissing plaintiff’s suit as to both defendants is hereby affirmed.

      . Omitted from the above quotation of the District Court are the page numbers- of the transcript as made by the District Judge.