author: FOURNET, Justice. -

text:
    213 La. 541
    Succession of YEATES.
    No. 38264.
    Supreme Court of Louisiana.
    March 22, 1948.
    Rehearing Denied April 26, 1948.
    Campbell & Campbell, of Minden, for plaintiff-appellants.
    A. S. Drew, of Minden, for appellee.
   FOURNET, Justice. -

The five sisters of E. Clifton Yeates— Mrs. Effie McClellan, Mrs. Ella Rowe, Mrs. Beatrice Martin, Mrs. Nellie Barry, and Mrs. Emma Todhunter — are appealing from a judgment rejecting their demand that a deed executed by their late mother, Mrs. S. A. (Alice) Yeates, on June 25, 1941, conveying to him certain improved property in Cotton Valley, Louisiana, be set aside, while the last two named sisters are also appealing from a judgment ordering the probate, over their opposition, of their late mother’s will, dated January 31, 1942. The two proceedings having been consolidated for the purpose of trial in the lower court, they were submitted on the same evidence.

In the first suit, filed on April 12, 1944, some five months after the death of Mrs. Yeates, the sisters, alleging that their mother had died, intestate and that they desired to accept her succession with -benefit of inventory, sought to bring into the mass of ■her estate the. property covered by the above mentioned deed by attacking it on the ground (1) that at the time of its execution their mother was of -an unsound mind, (2) that the recited cash consideration of $750 was never in fact, paid, and (3), in the alternative, that the deed was .a donation in disguise in the fo-rm of a sale, and, as. such, null and void under the provisions of Article 1533 of the Revised Civil Code since Mrs. Yeates reserved the usufruct thereof to herself during her life.

Subsequently, on May 4, 1944, two days after the will in controversy here was presented for probate, two of the sisters, Mrs. Nellie Barry and Mrs. Emma Todhunter, opposed the same on the ground (1) that it was not drawn in, legal form, (2) that at the time of its confection the testratrix was physically and mentally incompetent, -and (3) that the will was executed under duress and undue influence on the part of their brother. E. Clifton Yeates.

Since the principal ground upon which both of these actions are based is that the decedent was mentally incompetent to execute either of these instruments, it is necessary that a brief history of the decedent’s early life and a complete account of the pertinent events surrounding and leading up to the execution of these instruments be given.

According to the record, Mrs. Alice Yeates, upon the death of her husband in 1922, was faced with the problem of supporting and raising her seven living children. (One of the sons, William C. Yeates, does not appear in either of these proceedings.) She met this, problem with the forthright honesty and energy that were to characterize the remainder of her life. She first operated a boarding house, and, later, a hotel. She was also a merchant and the operator of a saloon. As the result of her efforts and thrift, she was able to accumulate a fair amount of property, -consisting of both cash and real estate. In her declining years her energies were directed toward the renting and upkeep of her various properties. However, although Mrs. Yeates went through the usual deterioration -expected in a woman of her years, she remained vigorous and energetic until on February 19, 1941, while collecting rents, she became stricken with what was at first thought to be a “stroke” but was later diagnosed to be a “cerebral accident,” as it was termed by one of the physicians who treated ,-her. On February 23, 1941, she was taken to the Highland Sanitarium in Shrevepo-rt for treatment and she-remained there for 15‘days. After she returned to her home she was under the care of her local physician.

On April 23, 1941/ at a time when she was completely bedridden and attended constantly by a practical nurse, Mrs. Yeates purportedly appeared before a notary public in his office and conveyed to her son, E. Clifton Yeates, fo-r the recited consideration of $1,000 in cash “and as a further consideration his the said E. C. Yeates’ service in superintending my business for several years valued' at an additional sum of One Thousand ($1,000.00) Dollars,” a lot fronting on the Louisiana & Arkansas railroad in Cotton Valley, together with the improvements thereon. Around the middle of May, Mrs. Yeates again became extremely ill and was taken to the Highland Sanitarium for further treatment. It was then found that she was suffering from a slight hempilogia (paralysis) involving the right side of her body and proving to be somewhat of an impediment to her speech; arthritis of the cervical (neck) vertebrae, which apparently caused extreme pain in her left arm and shoulder; and a psychotic (mental) condition that was found to be the result of intoxication brought about by the bromides she had taken for the alevi-ation of pain rather than from a mental disorder due to senile changes, for she improved as the bromide level was corrected. At that time Mrs. Yeates was 74 years old.

While Mrs. Yeates was in the Highland Sanitarium on this occasion, Mrs-. McCle-1-Ian, one of the daughters, becoming suspicious of her brother, whom she says she found in her mother’s home shortly before her removal to the sanitarium securing the mother’s signature on blank checks under the pretext that he was testing her eyesight to see if it was good enough for her to write on a straight line, began an investigation of her mother’s affairs. She found that on April 28, 1941 (five days after Mrs. Yeates purportedly sold the property in Cotton Valley to her son), by means of a check signed by her mother and made out to cash, her brother secured $310 from the bank, although he did not endorse the check. On April 30 he secured $275 in a like manner; on May 2 the sum of $215, and on May 8 the sum of $200, or a total of $1,000. In order to place the bank on its guard against similar checks and to protect their interests in the event their mother, then gravely ill in Highland Sanitarium, died, Mrs. McClellan testified she and another sister, Mrs. Ella Rowe, instituted interdiction proceedings against* their mother, alleging her inability to care for her person and to administer her affairs. Although these papers were never served on Mrs. Yeates because of the effect it was thought they would have on her condition, the sisters did confront their brother with their suspicions with respect to the purported purchase by him of the Cotton Valley property and what they thought to be a refund of the $1,000 consideration allegedly paid for such conveyance as indicated by the four checks cashed by him at the bank, and Yeates, on June 14, shortly after his mother’s return from the sanitarium, recon-veyed this property to her for a recited consideration of $1,000. Ten days later, on June 25, 1941, Mrs. Yeates again transferred this property to her son, although this time the purported consideration was $750 and she reserved the usufruct of the property for the remainder of her life.

Having been told by her son of the interdiction proceedings, Mrs. Yeates, following her return from the Highland Sanitarium early in June, became more or less estranged from the rest of her children and seemed to be obsessed with the idea that they were endeavoring to have her committed to an insane asylum. At this time she was also apparently concerned about her will. She took a document she had prepared to her attorney wherein she left everything she owned to her son Clifton, but when she was advised that such a will was illegal, she had the attorney prepare a draft of the will she wanted and she copied it in his office. (Some time prior thereto this same attorney had advised her that a will in which she sought to exclude her other son, William C. Yeates, was illegal.) Returning to his office some time later, she told the attorney she had destroyed the will copied by her and she again sought his services in drafting a new will. After the attorney had drafted the new will in accordance with her stipulations, she took the rough draft home with her and copied it, returning some time later with it and seeking his approval. This is the will dated January 31, 1942, that is entirely written, dated, and signed by the deceased in her own handwriting and wherein she not only bequeathed to her son Qifton the disposable portion of her estate as an extra portion, but also stipulated she had theretofore “sold to E. Clifton Yeates the naked ownership of certain property in Cotton Valley La consideration of $750.00 and this money has been received by me and used to maintain me in my old age and it is my wish that this sale be fully maintained and I hereby ratify and reaffirm same at this time.” After the attorney read the will over and approvéd its validity, it was placed in an envelope in his presence and Mrs. Yeates wrote across the face in her own handwriting the words “last Will and testament of Mrs. S. A. Yeates.”

During the remaining period of her life, although she suffered recurrent spells of illness, Mrs. Yeates apparently went about her duties and her work pretty much as she had always done. She drove her own car, attended to her properties and the collection of her rents, did her own work, and enjoyed her favorite pastime, fishing. When she suffered her fatal illness in the latter part of 1943, she was taken to the home of Mrs. McClellan and from there to the Highland Sanitarium, where she died on November 4, 1943. These suits followed. Since the cases were tried in the lower court and while they were pending on appeal here, E. Clifton Yeates died and his widow and son were made parties to the proceedings.

The evidence clearly shows that the will was entirely written, sigñéd, and dated by the testatrix and as such it is valid and legal, an olographic will being subject to no other form. Article 1588 oí the Revised Civil Code. And we must conclude, as did the trial judge, that the evidence fails to establish that the decedent was mentally incompetent at the time of the execution of the documents in controversy. In fact, we think the overwhelming preponderance of the evidence establishes the contrary to be true. Except for those intervals during which Mrs. Yeates was too ill, she attended to her own property and her business affairs in very much the same manner as she had done before 1941. She knew what she wanted and she knew how to go about getting it. There is nothing in the will itself that would indicate the contrary.

The contention that the will was executed under duress and undue influence exerted on the part of its proponent is also without merit, for “Proof is not admitted of the dispositions having been made through hatred, anger, suggestion or captation.” Article 1492 of the Revised Civil Code. See, also, Zerega v. Percival, 46 La.Ann. 590, 15 So. 476; Succession of McDermott, 136 La. 80, 66 So. 546; Succession of Hernandez, 138 La. 134, 70 So. 63; Succession of Schlumbrecht, 138 La. 173, 70 So. 76; and Succession of Price, 172 La. 606, 134 So. 907.

We think, too, the evidence unmistakably shows the decedent wanted her son Clifton to have all of the property she owned at her death and it is our opinion that the deed of June 25, 1941, was nothing more than a donation in disguise executed in the form of a sale for the purpose of accomplishing that which was forbidden by law and, as such, that it is invalid since Mrs. Yeates, the donor, reserved to herself the usufruct of the property, including her right to collect rents, in violation of the express provisions of Article 1533 of the Revised Civil Code. Moreover, the value of the property thus donated, when added to the proportionate interest Qifton Yeates would inherit with his sisters under the will and the disposable portion given him as an extra portion, exceeds the amount to which he is legally entitled under the law, and infringes upon the legitime of the other heirs.

Our conclusion that this is a donation in disguise has been arrived at only after a most careful and close study of the entire record. As previously pointed out, Mrs. Yeates tried to give her son Clifton all of her property by will and deeded this property to him when she was informed such a will would be illegal, for a purported cash consideration of $1,000, in addition to the alleged services rendered by him. Although the appellee ■ testified this consideration was paid by check, under further cross-examination he stated the money had been withdrawn from his savings account, apparently for the purpose of supplementing his checking account to cover the amount of the check. In so far as this transaction is concerned, he is not corroborated by the testimony of any other witness or by any other concrete .evidence. Yeates did not produce the cancelled check to substantiate the fact that he paid his mother this money, as he did in the case of the $750 check forming the consideration of the second transfer of the property. And this despite the fact he agreed to produce the check, together with his bank statements, if ordered to do so by the court and his attorney stated this evidence would be freely made available without the necessity of the attorneys for the appellants securing the same by means of a subpoena duces tecum, as they were preparing to do. Furthermore, we have the bank statements of Mrs. Yeates covering the period from December 1939 through July 1943 and they fail to show where this amount was ever deposited to her account and there is no evidence to show such a check was ever cashed by her.

That Mrs. Yeates desired to give her son all of her property except such an amount as she considered necessary for her maintenance is, we think, further evidenced by the fact that a few days after her conveyance to him of this property she withdrew from the bank on the four checks heretofore mentioned the additional sum of $1,000, admittedly procured by the appellee without endorsement, and although he states this money was withdrawn at the request of his mother and was actually given to her, we feel constrained to say that his testimony in this respect was, to say the least, most unimpressive. The indifference with which -he approached this subject as a witness is entirely foreign to the interest he took in all of his mother’s affairs. He says he didn’t know what his mother wanted with such a large sum of money, that he didn’t ask her, and that he didn’t know for what purpose it was used. Besides, there is strong contrary evidence touching upon the manner in which these checks were actually drawn. We have the testimony of one of Yeates’s sisters explaining that the checks were obtained in the very surreptitious manner heretofore explained. In addition, we have the testimony of the nurse who was taking care of Mrs. Yeates at this time flatly contradicting Yeate’s assertion that at the time his mother signed these checks she was dressed and up and about the house a large part of the time, for this nurse states most positively that during this entire period Mrs. Yeates was so gravely ill and so extremely weak she was unable to sit up or even be up for 30 minutes at a time without assistance, and that she was never dressed at any time during the 22 days the nurse remained with her except for a bath-robe or house coat that was put about her when she was helped to the bathroom.

We are further fortified in these views for when Yeates realized his sisters knew of the suspicious circumstances surrounding his acquisition of the property and his withdrawal of $1,000 from his mother’s account, he reconveyed the property to his mother by deed dated June 14, 1941, executed in the presence of a notary and two witnesses, for a recited consideration of $1,000, yet when he was questioned as to the manner in which this consideration was paid while on the witness stand, he stated the amount had been paid to his mother at a later time when they were alone and not in the presence of the notary and witnesses at the time the act was passed. Obviously, if the defendant had actually paid his mother the $1,000 consideration by check as testified to by him when the property was first transferred and his bank statements would reflect such payment, there would have been no reason for him to reconvey the property to her if he intended to reacquire it later unless, as his sisters thought, the first transaction was a simulation and vulnerable to attack, necessitating the procedure he subsequently followed in establishing proof that would be unassailable by issuing the $750 check and having it cashed to show actual payment of the recited consideration.

We turn next to the evidence in the record touching on the transaction that occurred only 11 days later, when Mrs. Yeates conveyed the naked ownership of this same property to her son. Here again we find the circumstances surrounding the transaction most unsatisfactorily explained. In his answer to the suit to set aside this conveyance Yeates avers “That the purchase made from his mother was for a good and valuable consideration, PAID IN CASH, and that his mother needed the funds at that time and used the funds to pay her medical bills and to maintain herself until her death.” On the witness stand he testified he had paid this consideration by a check prepared at the bank by Mr. Harper (Mr. J. E. Harper, President of the Minden Bank & Trust Company) and that he signed it and his mother personally cashed it in his presence and in the presence of Mr. Harper, although on further cross-examination he stated he was not present when his mother endorsed and cashed the check, having left her at the bank with Mr. Harper while he went to record his deed. On the trial, also, unlike the check involved in the first purchase of the property, Yeates produced the cancelled check that he had with him when he went into court. But aside from these contradictory statements and this cancelled check, he is not otherwise corroborated by any of the evidence, and this despite the issue in the case that his mother never received these funds and that this transaction was nothing more than a sham to carry o-ut the mother’s desire to favor him. While it was stipulated by counsel for appellee that if Mr. Harper were present he would testify he wrote the check in his bank on the date shown, counsel for appellants only conceded the handwriting in the body of the check was that of Mr. Harper and Mr. Harper was not produced as a witness and therefore did not corroborate the statement of Yeates that his mother was present at the time the check was drawn by Harper and actually cashed it herself and received the money, although he could have been called. Likewise, Yeates could have produced his bank statement, which would have reflected whether or not this amount was ever thereafter deposited to his account, but he did not. (Italics are ours.)

Although in his answer Yeates alleged his mother used this'money to pay medical bills and maintain herself during the rest •of her life, on the witness stand he was forced to admit under cross-examination' that at the time he gave his mother this ■check and she supposedly secured the cash, all of her medical and nursing bills had already been paid by checks that he himself had drawn on her account. "Add to this the fact that Mrs. Yeates was never known to have any large sums of money about ber person or her home, and the fact that there is no evidence to show an expenditure by her of any large sum of money during -the remainder of her life." " Certainly if all of these transactions were what' they appeared on the surface to be, some of these large sums of money — the $1,000 Yeates paid his mother the first time, the $1,000 he withdrew from the bank, and the $750 he paid his mother for the" second conveyance —or some portion of them at least, would have been discovered or traced. The fact that the appellee denied knowing what his mother did with the cash and professed to be unconcerend about the matter is unimpressive and entitled to very little credence, particularly since he and his wife were with Mrs. Yeates almost constantly ■during this period of 'her life and knew or should have known, if any one did, what became of this money.

Furthermore, we think that it was within the power of Yeates to produce evidence that might have thrown some light on -the questioned transactions, For example, Mr. Harper, whom Yeates testified not only drew -the $750 check in payment of the transfer -of this property on June-25, 1941, but was also present when Mrs. Yeates secured the cash it represented, could have been called to testify that Mr^. Yeates was in the bank at this time, endorsed the check, and personally received the cash. Also, the deposits and withdrawals of the bank accounts of Yeates might have thrown some light on these • transactions and on what became of this money. Consequently, having failed in this respect, we think particularly applicable here the rule enunciated in the case of Bates v. Blitz, 205 La. 536, 17 So.2d 816, that a person failing to call available witnesses possessing peculiar knowledge of facts that are essential to the proof of the case, or to produce more explicit, direct, and satisfactory concrete evidence than that relied on although able to, raises the inference or presumption that the testimony of the absent witnesses would not sustain his contentions and that the concrete evidence, if produced, would prove detrimental to his cause, particularly when the testimony of the person attempting to 'establish his case has been put in doubt but is susceptible of corroboration. See, also, King v. Atkins, 33 La.Ann. 1057; Crescent City Ice Co. v. Ermann, 36 La.Ann. 841; Pruyn v. Young, 51 La.Ann. 320, 25 So. 125; Nelson v. Vicksburg, S. & P. R. Co., 141 La. 475, 75 So. 212; Rubenstein v. Files, 146 La. 727, 84 So. 33; Toca v. Rojas, 152 La. 317, 93 So. 108; Succession of Rageur, 155 La. 97, 98 So. 853; Perez v. Meraux, 201 La. 498, 9 So.2d 662; Stanley v. Jones, 201 La. 549, 9 So.2d 678; II Wigmore on Evidence (2rd Ed.) 162, Sections 285 and 286; 22 C.J. 115, Section 56; 31 C.J.S., Evidence, § 156, subsec. c, p. 856; 20 Am.Jur. 192, Section 187; and Ann.Cas.1914A, 915.

For the reasons assigned (1) the judgment of the lower court recognizing to be a good and, binding conveyance the deed of June 25, 1941, and dismissing the plaintiffs’ suit attacking the same, is annulled and set aside, and it is now ordered, adjudged, and decreed,that this deed be and the same is hereby declared to be null and void and set aside, and the property thus sought to be conveyed is ordered returned to the mass of the estate of the decedent, Mrs. S. A. (Alice) Yeates; and (2) the judgment ordering that the last will and testament executed by Mrs. Yeates on January 31, 1942, be admitted for probate is affirmed. The cost of these proceedings is to be paid one half by the Succession of Mrs. Yeates and the other half by the widow of the appel-lee, Mrs. E. Clifton Yeates, and his son, E. Clifton Yeates, Jr.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    213 La. 559
    STATE v. ROBERTS.
    No. 38840.
    Supreme Court of Louisiana.
    March 22, 1948.
    Rehearing Denied April 26, 1948.
    Oglesby & Oglesby, of Winnifield, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., and Harry Fuller, Dist. Atty., of Winnifield, for appellee.
   McCALEB, Justice.

Jesse R. Roberts was indicted under Article 27 of the Criminal Code (Act 43 of 1942) for attempting to murder one Cas Shirley by shooting him with a pistol. He was found guilty of aggravated battery and was sentenced to imprisonment in the State Penitentiary at hard labor for six years. Wherefore this appeal.

During the course of the proceedings, appellant reserved nine bills of exception. The principal one of these was taken to the action of the trial judge in overruling a motion to arrest the judgment on the ground that the verdict of aggravated battery is not responsive to the charge of attempted murder. We direct our immediate attention to this bill of exception.

The provisions of our law dealing with responsive verdicts are to be found in Articles 386, 405 and 406 of the Code of Criminal Procedure and Article V of the Criminal Code. These Articles declare:

“Whenever the indictment sets out an offense including other offenses of less magnitude or grade, the judge shall charge the jury the law applicable to all offenses of which the accused could be found guilty under the indictment, and in all trials for murder the jury shall be instructed that they may find the accused guilty of manslaughter or negligent homicide.” Article 386, Code of Criminal Procedure.
“The verdict must be responsive to the indictment, that is to say, no one cm be found guilty of an offense not charged in the indictment or not necessarily included in the offense charged', and no verdict can be of any effect if found upon an indictment so defective as to charge no crime”. Article 405, Code of Criminal Procedure.' (Italics ours).
“When the crime charged includes another of lesser grade, a verdict of guilty o'f the lesser crime is responsive to the indictment, and it is of no moment that the greater offense is a felony and the lesser a misdemeanor.” Article 406, Code of Criminal Procedure.
“An offender who commits an offense which includes all the elements of other lesser offenses, may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses. In such case, where the offender is prosecuted for the greater offense, he may be convicted of any one of the leaser and included offenses.” Article V of the Criminal Code (Act 43 of 1942).

In consequence of the foregoing, the question posed is whether the elements of the crime of attempted murder (the greater offense) necessarily contains all of the elements of aggravated battery (the lesser offense).

Under Article 27 of the Criminal Code, attempts to commit a crime are denounced as offenses. The pertinent part of that Article provides that “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; * * *”. Therefore, the elements of the crime of attempted murder are specific intent to kill a human being (Article 30, Criminal Code) and an overt act in furtherance of the object. On the other hand, aggravated battery is a battery committed with a dangerous weapon (Article 34 of the Criminal Code) and battery is defined to be “the intentional use of force or violence upon the person of another * * * Article 33 of the Criminal Code.

Thüs, it is plain from the definitions of attempted murder and aggravated battery that the elements of the lesser offense are not necessarily included in the greater offense. Two simple illustrations suffice to demonstrate: (1) In attempted murder, use of a dangerous weapon is not essential, whereas, use of such a weapon is a necessary ingredient of aggravated battery and (2) if A intentionally shoots at B missing him, he is amenable to a charge of attempted murder but not aggravated battery as he has not applied force or violence upon B’s person with a dangerous weapon.

Counsel for the state take the position that, in determining whether the charge of a greater offense contains all the elements of a lesser offense, the court is to be guided by the allegations of the indictment rather than the definition of the offenses involved. From this premise, it is asserted that, since the indictment in the instant case alleges that appellant attempted to murder Cas Shirley by shooting him with a pistol the charge contains all the elements of aggravated battery, as well as attempted murder, as it sets forth an application of force and violence upon Shirley’s person with a dangerous weapon and that, therefore, the verdict of aggravated battery is responsive to the indictment.

We cannot subscribe to this proposition. The basic error in the contention is that the test of whether a lesser offense is included in the charge of a greater is not that the indictment alleges a state of facts showing a commission of a greater and lesser offenses but rather that all .of the elements of the lesser crime are included in the definition of the greater offense.

In the case of State v. Antoine, 189 La. 619, 180 So. 465 (relied upon by the State) we quoted at length with approval from the case of State v. Jacques, 45 La. Ann. 1451, 14 So. 213, where a terse and able statement of the rules applicable in cases of this sort is to be found.

In the Jacques case, the defendant was prosecuted under an information charging him with cutting and stabbing with a dangerous weapon with intent to murder and was found guilty of cutting and stabbing with intent to kill in violation of Act No. 44 of 1890. On appeal, he claimed that the judge should have charged the jury that they could bring in a verdict of a lesser offense defined by Section 794 of the Revised Statutes for inflicting a wound less than mayhem with a dangerous weapon. The court rejected this argument and observed :

“One of the general rules of ■ criminal pleading is that a count of an indictment or information must contain but one substantive charge, and a count charging two or more distinct offences is bad for duplicity. There are exceptions to the rule, one of which is that when an offence necessarily includes ■ another, and when the, major of-’ fence cannot be charged without also setting out the minor, a count in such a case charging both offences, is not bad. The rationale of this exception is obvious. If the exception did not exist, it would be impossible to frame a valid indictment for an offence whenever the allegations required to charge it also described another offence. But when, without necessity, the pleader so enlarges upon a criminal statute as to bring within his charge under that statute another offence, denounced by another statute, the count is bad.
"When the charge for the major offence necessarily includes a charge for the minor, a verdict as to either is responsive, provided, always, that all the necessary allegations to charge the minor offence are pleaded in the indictment or information (Italics ours).

Comparison of the provisions of Article 386, 405 and 406 of the Code of Criminal Procedure and Article 5 of the Criminal Code, which we have quoted above, -with the prior jurisprudence disclos■es that the former are in reality a codification of the well-settled pronouncements of this court relative to greater and lesser offenses and responsive verdicts. Under the law and the jurisprudence, it is vital to the validity of any verdict for a lesser offense that all the elements of that offense are necessarily contained in the definition of the greater offense. This view was stated by this court in State v. Desselles, 150 La. 494, 90 So. 773, 778, thus: “A court or jury having jurisdiction to try the defendant for the crime charged in a bill of indictment or information has jurisdiction to convict him of a less serious crime, of which, if charged alone, the court or jury would not have jurisdiction; provided, of course, all of the elements of the less serious crime are essentially included in the definition of the crime charged.” (Italics ours.)

See also Marr’s Criminal Jurisprudence, 2d Ed., Vol. II, Sec. 696, page 1078.

Since we find that the conviction for aggravated battery is not responsive to a charge of attempted murder, it follows that the judge erred in not sustaining the motion in arrest of judgment. And, inasmuch as the effect of this error requires a dismissal of the prosecution, it is unnecessary that we consider the other bills of exception.

For the foregoing reasons, the conviction and sentence appealed from are reversed,, the motion in arrest of judgment is maintained and the proceedings against appellant are dismissed.

       The italicized language was quoted with approval by us in State v. Antoine, supra, and counsel for the state assert that this language and a similar expression in State v. Barber, 167 La. 635, 120 So. 33, is authority for their contention that the allegations of the indtetment govern the question of whether a verdict for a lesser crime is responsive. It is apparent to us that counsel are mistaken in their interpretation of the language used by the court. Reference, in the Jacques opinion to “the charge for the major offence” necessarily including a charge for the minor does not mean the charge made in the indictment but the definition of the offense itself. The added proviso relative to the necessity of allegations charging the minor offense in the indictment or information is no longer of importance under modern criminal pleading — for, if the greater offense necessarily includes all the elements of the lesser one,, specific allegations in an indictment relative to the iesser offense are not imperative.


author: McCALEB, Justice. HAMITER, Justice

text:
    213 La. 568
    OBER v. WILLIAMS et al.
    No. 38481.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied April 26, 1948.
    Dixon Carroll, Archie M. Simon, and Boatner, Simon & Carroll, all of Shreveport, for plaintiff-appellant.
    Benckenstein, Brown & Wells, of Beaumont, Tex., Milling, Godchaux, Saal & Milling, of New Orleans, Shotwell & Brown, of Monroe, L. J. Benckenstein, of Beaumont, Tex., R. C. Milling, of New Orleans, Clyde R. Brown, of Monroe, Herold, Cousin & Herold, of Shreveport, and Káy & Kay, of DeRidder, amici curiae.
    Theus>, Grisham, Davis & Leigh, of Monroe, and Smitherman, Smitherman & Purcell-, of Shreveport, for defendants-appellees.
   McCALEB, Justice.

Plaintiff is the owner of a forty acre tract of land in Richland Parish and one-half of the minerals thereunder. He is seeking in this action to be declared the owner of the other one-half of the minerals by reason of the alleged extinguishment of a mineral servitude, affecting said one-half, by non-user for ten years. As an incident, he desires an accounting from the servitude owners, their lessees and assignees, for all minerals extracted from the land as the result of drilling operations, allegedly conducted thereon illegally, after prescription had áccrued.

The salient facts of the case are that, on November 12th 1934, Charles D. and F. Roy Williams, the then owners of the forty acre tract, entered into a contract to sell the land to H. C. White under the following terms and conditions:

“The party of the second part agrees to move on the said premises and have cleared and ready for the plow as much as 15 acres of land and to build one 3 room dwelling thereon before or by November 12-1935 at which time parties of the first part agree to make to party of the- second part a good and merchantable title to the said premises and party of the second part agrees to accept title to same and at that time the party of the second part agrees to execute in connection with said purchase his 6 certain promissory notes for the sum of $100.00 each to bear interest at the rate of 8% per annum from maturity until paid, the first of which is to be due and payable on Nov. 12-1936, and annually thereafter, the vendors to reserve from said sale an undivided one-half interest in and to the minerals which may underlie said property, and to retain a vendor’s lien on the conveyed premises to secure the payment of said notes; said notes to contain the usual attorney’s fees clause.”

White complied with the conditions of the contract within the stipulated time and on December 12, 1935, the Williamses combed the property to him. The deed was by authentic act and transferred title to White in full ownership, the vendors retaining a lien for the payment of the purchase price and also reserving unto themselves one-half of all the minerals and mineral rights in, on or under the land. It was duly recorded in the conveyance and mortgage records of the Parish of Richland on the date of its passage, December 12, 1935. White thereafter, on July 21, 1936, conveyed to Julian Irvine Hulbert, who subsequently, on March 1, 1937, sold the land to plaintiff.

Charles D. Williams, one of the mineral owners, died in 1941. He is survived by his widow and children. F. Roy Williams, the other mineral owner, is also dead. However, prior to his death, he, together with the widow and heirs of Charles D. Williams, executed a mineral lease in favor of R. T. Sellars and J. A. Funston. Certain co-lessor agreements have been made since the original lease and the lessees have assigned various fractional interests to other persons.

Sometime between November 8 and December 9, 1945, the lessees of the Wil-liamses went upon the land, conducted explorations and brought in a producing oil well. Immediately, on December 10, 1945, plaintiff brought the present suit for the judicial cancellation of the servitude and for an accounting. The action is di-. rected against the heirs of the Williamses, the lessees and their assignees. Also joined as parties defendant are plaintiff’s immediate vendor, Hulbert, and his vendor, White.

The theory of plaintiff’s case is that the mineral reservation of the Williamses, contained in their deed to White, was extinguished by prescription of ten year non-user after November 12, 1944 (rather than after December 12, 1945, ten years subsequent to the act of sale), because, in view of White’s performance of the condition contained in the agreement of November 12, 1934, the legal title to the land vested in him retrospectively as of the date of that agreement. Alternatively, it is contended by plaintiff that, should the court determine otherwise, then the ten year liberative prescription has nevertheless accrued for it began to run on November 12, 1935 (rather than on December 12, 1935, the date of the deed) as that was the date upon which White was unequivocally entitled to a deed. Again, as a further alternative, plaintiff maintains that the deed of December 12, 1935 should be reformed so as to show the true date intended by the parties, that is, November 12, 1935, which was the last date upon which title to the property should have been passed.

The principal defendants, the Williams-es, their lessees and assignees, interposed an exception of no right or cause of action and, after it was overruled, filed an answer resisting the demand by denials of the validity of plaintiff’s postulations.

Moreover, R. T. Sellars, the lessee of the Williamses, filed a reconventional demand in which he sought recovery from plaintiff of one-half of the cost of the drilling operations and also made an alternative contention, unnecessary to set forth.

Subsequent to the joinder of issue, an agreement was made between counsel for the main contestants in which all of the facts hereinabove set forth were stipulated. As a result of this stipulation, the only facts left for determination by the court had relation to the exact date upon which drilling operations commenced and also whether plaintiff had become estopped by his conduct from contending that the servitude prescribed prior to December 12, 1945 (ten years following the date of the deed), as defendants, in the meantime, had filed a plea to this effect.

After a full hearing on all of the issues, the District Judge resolved for the defendants and dismissed the suit. In a written opinion, the Judge declared that the agreement of November 12, 1934 was merely a promise by White to buy and the Williams-es to sell at a future date, after the performance of certain ■ conditions; that the performance of the conditions by White did not have the effect of vesting title to the land in him as of the date of the promise to sell and that, finally, the alternative pleas of plaintiff, not being supported by either the law or the evidence, were not sustainable. It was further decreed that the reconventional demand of defendant, Sellars, was not well founded and it was dismissed.

Plaintiff has appealed from the adverse decision, reurging all of the contentions made below. Defendant, Sellars, argues that his reconventional demand should be maintained but it cannot be considered since he has neither appealed from the judgment below nor has he answered plaintiff’s appeal.

The initial point for discussion is whether the performance by White of the conditions contained in the agreement of November 12th 1934 had the retrospective effect of vesting ownership of the property in White as of the date of that agreement. Counsel for plaintiff insist that such a retroactive transfer of ownership occurred by reason of the provisions of Article 2041 of the Civil Code which declares that, when the condition of a contract is complied with, it has a retrospective effect to the date that the engagement was contracted. Counsel are joined in their argument by amici curiae, who go even a step farther by asserting that the contract of November 12th 1934 constituted a sale in praesenti.

We do not view the contentions as meritorious. The agreement of November 12, 1934, is nothing more or less than a promise to sell and purchase which did not effect a retrospective transfer of ownership to White by his performance of its conditions. On the contrary, fulfillment of the conditions of the contract vested only in each party a right to enforcement by specific performance under Article 2462 of the Civil Code.

The proposition advanced by plaintiff has been many times made and we find consistent rejection of it in a long line of authorities. In most of the adjudications, the party stressing the contention (that a promise to sell is a sale) placed much reliance on Article 2462 of the Civil Code which provides that “A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to im-movables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.” But, in every case where the court has been faced with the question of determining ownership of the thing prior to the passage of title, it has consistently stated that the promise did not effect a transfer of ownership to the promisee. See McDonald v. Aubert, 17 La. 448; Peck v. Bemiss, 10 La.Ann. 160; Knox v. Payne & Harrison, 13 La.Ann. 361; Garrett v. Crooks, 15 La.Ann. 483; Broadwell v. Raines, 34 La.Ann. 677; Thompson v. Duson, 40 La.Ann. 712, 5 So. 58; Baldwin v. Morey, 41 La.Ann. 1105, 6 So. 796; Capo v. Bugdahl, 117 La. 992, 42 So. 478; Page v. Loeffler, 146 La. 890, 84 So. 194, 22 A.L.R. 563; Trichel v. Home Insurance Co., 155 La. 459, 99 So. 403; Campbell v. Richmond Ins. Co. 156 La. 455, 100 So. 679; Pruyn v. Gay, 159 La. 981, 106 So. 536; Succession of Fay, 161 La. 1022, 109 So. 824 and Davis v. McCain, 171 La. 1011, 132 So. 758.

Nearly a hundred years ago, in Peck v. Bemiss, supra, this court was confronted with the proposition that a promise to sell amounts to a sale. There, Chief Justice Slidell declared:

“This reciprocal promise of sale did not make Peck the owner of the land. It gave him only the right of becoming’ so at a future time. It created in his favor an obligation binding upon Overton, and by which, if he refused voluntarily to comply, he could be judicially constrained to a specific performance or subjected, if he had put it out of his own power to comply, to an action for damages. Until a voluntary or forced execution of the promise, the ownership did not pass to Peck.
“It is true that the 2437th Article (now Article 2462) of our Code declares, that a promise to sell amounts to a sale, when there exists a reciprocal consent of both parties, as to the thing and the price thereof, or as it is said in the French text, La promesse de vendre vaut yente, lorsqu’il y a consentement reciproque des deux parties sur la chose et sur le prix. But that we are not to take these emphatic expressions au pied de la lettre, and recognize no difference between a sale and a promise to sell, is obvious from other provisions of our Code, from the history of the corresponding article of the Napoleon Code from which our own is taken, and from a just appreciation of the nature of things and the suggestions of common sense, applied to the practical dealings of men with each other. The law would be censurable for a strange violation of the principles of reason and justice, and for a shortsighted view of expediency, if it deprived individuals of the right of making prospective agreements for a sale, or told them that if they make each other a reciprocal promise to buy and sell a thing a year hence, for-example, that they should be absolutely considered as having made a present sale, with all the incidents of a shifting of the risk, revenues, accretion, &c., which pertain to a contract of sale.” (Words in parenthesis ours).

In Trichel v. Home Insurance Co. supra, it was said [155 La. 459, 99 So. 404] :

“Our conclusion is that any agreement for the sale of real estate, which is not intended to be the final writing between the parties, but, on the contrary, to be followed by another and final deed, is a mere promise of sale and not a sale, and does not transfer the title to said property; unless it clearly appear that the parties contemplated that the new deed should be only a confirmation of the first, and not indispensable for the transfer of title.”

The agreement of November 12, 1934, falls squarely within the above cited jurisprudence. It is simply a promise to sell, not absolute, but wholly conditional upon White’s performance of certain acts for it to become binding and enforceable. Yet, counsel for plaintiff grasp at the performance of the conditions by White as a ground for attaching greater legal import to the promise of the Williamses and thus convert their conditional promise to sell into a transfer of ownership when, in truth, White’s performance merely changed the promise of the Williamses from conditional to absolute. To illustrate — if the Williamses had bound themselves absolutely to transfer the land a year hence, ownership would not have vested in White until the execution of the deed. Obviously,, then, the Williamses didmot confer ownership on White at an earlier date where their promise was 1 conditional and only became absolute when White did certain things.

Article 2041 of the Civil Code, relied upon by counsel, did not have the magic effect of vesting ownership in White retrospectively. That article, which is found in that part of the Code dealing with conditional contracts, declares that, when the condition has been complied with, it has a retrospective effect to the day the engagement was contracted. This merely means that the rights of the obligor, upon compliance, revert to the date of the contract but it offers no foundation for an argument that, in cases involving contracts to sell and purchase immovable property conditioned upon the happening of an event or the doing of certain things, the ownership is transferred retrospectively by the performance of the condition. On the contrary, compliance with the condition only renders the contract executory; makes the reciprocal promises absolute and establishes the rights and liabilities of the parties as of the date of the agreement,

Nor do the* authorities cited by counsel for plaintiff, viz., Crochet v. McCamant, 116 La. 1, 40 So. 474, 114 Am.St.Rep. 538; Barfield v. Saunders, 116 La. 136, 40 So. 593; Lehman v. Rice, 118 La. 975, 43 So. 639, and Schwing Lumber & Shingle Co. Inc. v. Board of Commissioners, 200 La. 1049, 9 So.2d 409, sustain the conclusion contended for — and this, despite certain careless expressions which may be found in those pronouncements.

Crochet v. McCamant, supra, involved the acquisition of land under the Federal homestead law and has admittedly been overruled. Much is said in that case on the subject of imperfect ownership and conditional obligations. Suffice to say that we do not regard some of the views there expressed as controlling here.

The decision in Lehman v. Rice, supra, was founded on the law of registry and is authority only for the proposition that.a promise to sell, when recorded, protects the promisee in his right to -specific performance and that a subsequent vendee of the' promisor takes the property subject to the rights of the promisee.

In Barfield v. Saunders, supra, the court decreed that Jre writing was a sale and not a promise to sell.

In the Schwing Lumber Co. case, it was found.that the plaintiffs had acquired ownership by a deed translative of property long prior to the enactment of the Constitution of 1921, which defendant Board contended prevented the vesting in plaintiff of title to the minerals. Hence, the dicta contained therein respecting the effect to be given promises to sell was without bearing on the question involved.

The next proposition advanced by plaintiff is that, even though White did not acquire ownership of the land on November 12, 1934, he became owner on November 12, 1935, which is the date provided in the promise of sale for the execution of the deed, as he had fully performed the conditions of the contract at that time. From this premise, it is argued that, since White was entitled to a deed from the Williamses on November 12, 1935, the liberative prescription began to run on that date, even though the deed was not passed until December 12th. In support of this proposition, counsel rely upon Article' 2462 of the Civil Code (quoted above)' and Article 2040, which provides that “The ■ condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.”

The point is not tenable. Whatever may have been the right of White to demand that the Williamses transfer ownership'on or before November 12, 1935, the fact is that the deed was admittedly not executed until December 12, 1935, and the servitude was created on that day. Prescription could not commence to run until the servitude came into existence. Plaintiff, when he purchased from Hulbert, was charged with notice that the land was subject to the servitude in favor of the Wil-liamses, which was created by the deed of December 12, 1935.

The next alternative proposition of plaintiff is that the deed should be reformed so as to redate it as of November 12, 1935, which was the time intended by the parties for the transfer of ownership to the property as shown by the promise to sell.

. We find no substance whatever in this contention for the simple reason that there is no error in the date of the deed. The equitable remedy of reformation lies only to correct mistakes or errors contained in written instruments where such instruments, as written, do not express the true contract between the parties. See 45 American .Jurisprudence, Verbo “Reformation of Instruments,” Sections 45 et seq. Thus, if it were here alleged that the deed was actually passed on November 12, 1935, and that it was dated December 12th, through mutual error or mistake, a vastly different question would be presented. But that is not this case, as plaintiff does not contend that the deed was not actually passed before the Deputy Clerk of Court on December 12, 1935. Despite this, he would have the deed dated on November 12, 1935, even though it be untrue that the instrument was executed on that date.

Finally, plaintiff and amici curiae have expressed great concern respecting the result in this case. Amici curiae say that, unless the decision of the lower court is reversed, it will ‘“adversely affect vested rights and afford a way to retain mineral servitudes for indefinite periods, and thereby do away with the 10-year prescriptive period applicable to such servitudes.” They conceive and portray situations wherein owners of land desiring to sell and yet reserve minerals for a longer period than ten years would execute promises to sell, withholding ownership in themselves for many years and thereby circumvent the law extinguishing the ownership of mineral servitudes after ten years where there is no exploration by the servitude owner.

. Our answer to the alarms of counsel is that it will be time enough to deal with situations involving fraudulent evasions of our laws and public policy when and if occasion arises. Surely, no one will have the temerity to suggest unlawful scheming on the part of the defendants in the present case. Conversely, here it appears that the shoe might be on the other foot as it takes no more than a reading of the record to convince us that it is plaintiff's good faith and sincerity brought under scrutiny— for the evidence shows that he considered and believed that the servitude owned by the Williamses would not prescribe until after December 12th 1945 and that he sought to induce the Williamses’ lessee not to. explore on the. land until after that date, offering the driller to make it worth his while. Failing in those efforts, he has reversed his position and contends that, as a matter of law, the servitude prescribed prior to the date contained in the deed to White.

The judgment appealed from is affirmed.

O’NIELL, C. J., absent.

HAMITER, Justice

(dissenting).

Conceding for the sake of argument (but for that purpose only) that the main and first alternative propositions of plaintiff are without merit, he should be granted relief herein, iñ my opinion, under his prayer for reformation.

If White were the present owner of the property and the plaintiff herein, unquestionably he would have the right to have the deed reformed as against his vendors and their heirs so as to show the true intention of the parties thereto with respect to the date. Being the successor in title of White, this plaintiff acquired and now possesses that right.

And the record before us warrants a correcting of the deed to show the date thereof as November 12, 1935, the evidence conclusively showing, as I appreciate it, that such was intended by all parties concerned, and was the actual date,, rather than December 12, 1935, which was inserted by inadvertence and mutual mistake.

According to the record White and one J. S. Lowery were acquiring adjoining 40-acre tracts from the Williamses under identical transactions. Each was to receive a deed on November 12, 1935, and, at tire same time, give six promissory notes. When prepared the two deeds and the 12 notes were dated December 12, 1935. Later, however, the word “December” was changed to read “November” on all of those instruments except on the deed in favor of White. Lowery and White appeared together and signed their respective deeds and notes at the same time, they testifying emphatically and, without being contradicted, that this was on November 12, 1935. When completed White’s deed bore the date of December 12, 1935, although all of his notes carried the date of November 12, 1935, as is disclosed by photostatic copies thereof found in the record and as is further disclosed by the following provision in his deed:

“The price for which the above sale is made is the sum of Six Hundred and no/ 100 ($600.00) Dollars, evidenced by the six (6) promissory notes of the vendee each for the sum of $100.00, dated November 12th, 1935, drawn and made payable to the vendors, the first on November 12th, 1936, and one note due annually thereafter until all six notes are paid in full with interest at the rate of eight per cent per annum from date until paid.”

On the other hand Lowery’s deed and notes when completed were uniform as to date, all being dated November 12, 1935.

In the light of these circumstances the conclusion is inescapable that mutual error was committed in the dating of White’s deed and that the parties intended the date to be, and it actually was, November 12, 1935. And this conclusion is fortified by the following provision of White’s original contract of sale:

“The party of the second part agrees to move on the said premises and have cleared and ready for the plow as much as 15 acres of land and to build one 3 room dwelling thereon before or by November 12, 1935, at which time parties of the first part agree to make to party of the second part a good and merchantable title to the said premises * *

Long prior to that date White had fulfilled all of the conditions of his agreement.

With White’s deed thus reformed (bearing the date of November 12, 1935), there must be reached the further conclusion that the mineral interest reserved by the Williamses has been lost by the prescription of 10 years liberandi causa. The overwhelming preponderance of evidence is that operations for the drilling on the land in question were not commenced until after November 14, 1945.

I respectfully dissent.

       Amici Curiae cite and depend upon Article 2456 of the Civil Code which declares that the sale is considered perfect between the parties as sooh as there exists an agreement for the object and for the price thereof although the object has , not yet been delivered nor the price paid. That article has application only in eases where the parties, by their contract, do not contemplate a withholding of title until a later date. It is absolutely without pertinence here as an examina-tidn of the agreement between White and the Williamses discloses that the former would not acquire ownership until after he performed the conditions which would entitle him to receive from the latter a good and merchantable title to the land.

       Were it absolutely necessary, the Oroehet case could be distinguished from this one on the ground that, there, the court regarded the condition to be resolu-tory whereas, here, the condition in the contract is obviously suspensive. For the effect of the resolutory condition see Article 2045 of the Civil Code.


text:
    213 La. 588
    WATERMAN et al. v. TIDEWATER ASSOCIATED OIL CO. et al. TAMBOUR CORPORATION v. RECTANGLE RANCHE CO. et al.
    No. 38646.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied April 26, 1948.

      Deutsch, Kerrigan & Stiles, of New Orleans, for Tambour Corporation, plaintiff and appellant.
    Rosen, Kammer, Wolff, Hopkins & Burke, of New Orleans, for John S. Waterman, Jr., plaintiff, appellant, and petitioner, John Vaccaro and National Royalties Corporation, interveners, appellants, and petitioners.
    Robert A. Ainsworth, Jr., of New Orleans, in pro. per., amicus curiae.
    Dart, Guidry & Price and Taylor Caf-fery, all of New Orleans, for Benjamin W. Dart, Administrator, succession of Chas. C. Buck.
    Liskow, Lewis, Gerard & Shepard, of Lake Charles, and Marion J. Epley, Jr., of New Orleans, for Tide Water Associated Oil Co., defendant and appellee.
    John E. Jackson and Baldwin J. Allen, both of New Orleans, for Rectangle Ranche Co., defendant and appellee.
    Claude L. Johnson, of New Orleans, in pro. per., defendant and appellee.
   McCALEB, Justice.

On May 13, 1942, John S. Waterman, Jr., initiated this petitory action in the Twenty-Fifth Judicial District Court, in which he claims that he is the tru'e and lawful owner of an undivided' one-fourth right, title and interest in and to the following described property in Plaquemines Parish:

S% of Section 14,

S% of Section 15, N. of Spanish Pass,

SEJ4 of Section 20,

Ny2 and SWy4 of Section 21, W. of Spanish Pass,

SEJ4 and SW)4 of Section 24, East of Red Pass, less % interest in that portion East of Tonphine Pass,

Ni/2 of NEJi of Section 29,

NEJ4 of Section 24, East of Red Pass, less % interest in that part East of Ton-phine Pass,

Section 25, East of Red Pass, except that part East of Tonphine Pass,

Section 26, East of Red Pass,

Section 35, East of Red Pass, Section 36,

All in Township 21 South, Range 30 East.

He joined as defendants Rectangle Ranche Company (hereinafter referred to as Rectangle), Dr. Ade B. Pautscle, Claude L. Johnson and Tidewater Associated Oil Company, alleging that they are in actual physical possession of the property without any right or title whatsoever. Subsequently, the National Royalties Corporation and John Vaccaro intervened, as parties plaintiff, alleging ownership of %o and %, respectively, of the minerals under the land.

Thereafter, the defendants appeared and filed exceptions of vagueness which were based on the ground that plaintiffs had not alleged the chain of title upon which their claims were founded. These exceptions were never tried. Plowever, after three years had elapsed, viz., on May 22d, 1945, plaintiffs filed supplemental and amended petitions in which they not only alleged the muniments of title and other instruments upon which they claimed the property hut also set forth the chain of title under which the defendants held possession. A few days later, on June 5, 1945, Tambour Corporation, claiming ownership of an undivided one-half interest in the land, filed a separate action in the court based upon the same muniments of title as those of Waterman and the intervenors in his suit. In its petition, Tambou'r joined the same defendants named in the Waterman suit and, in addition thereto, Herbert J. Harvey, Donald L. Madden, Harry P. Gamble Jr. (later dismissed for lack of interest), H. L. Car-nahan, John E. Jackson and Baldwin J. Allen.

The objections contained in their exceptions in the Waterman suit having been satisfied by the supplemental and amended petitions, defendants joined issue in both cases by answers in which they denied the claims of plaintiffs and affirmatively alleged the validity of their respective titles and possession thereunder. In due course, the cases were consolidated for trial and, after hearing and submission, the demands of all plaintiffs were rejected by separate judgment in each case. Appeals have been prosecuted by all those adversely affected and the cases have been here consolidated again for our decision.

The property in dispute is located in the Parish of Plaquemines in Township 21 S., Range 30 E., in the Southeastern Land District of Louisiana, west of the Mississippi river and is contained within Sections 14, 15, 20, 21, 24, 25, 26, 29, 35 and 36, as hereinabove described.

Plaintiffs’ main chain of title, which has been referred to as the “Lacey” title, is as follows: Buras Levee Board to Lacey, January 4, 1896; Lacey to Buck, same date; Buck to Rectangle, October 23, 1905; Rectangle to Rose, January 11, 1923 and Rose to plaintiffs by a series of conveyances which are neither questioned nor important.

Defendants’ chain, referred to as the “Leovy” title, is as follows: State to Leovy by patents issued in 1893 and subsequent years; heirs of Leovy to Hayne, November 17, 1905; Hayne to Kranebell, November 3, 1913; Kranebell and wife to Rectangle, February 4, 1927, and Rectangle to Johnson, Pautsch and other defendants of various interests, including a mineral lease acquired by Tidewater Associated Oil Company, by a series of transactions not important to the controversy.

Since this is a petitory action, plaintiffs must recover on the strength of their own title and not on the weakness of that of their adversaries. Code of Practice, Article 43, 44; Dugas v. Powell, 197 La. 409, 1 So.2d 677; Simmons v. Carter, 186 La. 377, 172 So. 425.

Plaintiffs’ primary contention is that, since the land claimed is embraced within T. 21 S., R. 30 E., they own it because their author in title, Emile J. Rose, acquired all of the land in that township by deed from Rectangle on January 11, 1923. The pertinent part of the deed from Rectangle to Rose reads as follows:

“That the said party of the first part, for and in consideration of the sum of one dollar ($1.00) and other good and valuable consideration in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part forever released and discharged therefrom, has re-mised, released, sold, conveyed, and quit-claimed, and by these presents does remise, release, sell, convey and quit claim unto the said party of the second part, his heirs and assigns forever, all the right, title, interest, claim, and demand which said party of the first part has in and to the following described piece of land, situated in the Parish of Plaquemines, County of- and State of Louisiana, and known and described as follows, to wit: ‘All the land in the Parish of Plaquemines, in the State of Louisiana, being all the land in Township Twenty-one (21) South, Ranges Twenty-nine and Thirty (29 & 30) East, in the Southeastern Land District of Louisiana, West of the Mississippi River, comprising an area of 46,060 acres more or less, except Lots 1, 2, 3, and 4, in Township Twenty-one (21) South, Range Thirty (30) East, containing 109.05 acres, and also excepting 320 acres lying in the rear of said Lots 1, 2, and 3, which were sold by the State of Louisiana to C. C. Packard, by Patent Number 526 dated September 30, 1869; being the same lands which were acquired by said Rectangle Ranche Company, from Chas. C. Buck on Oct. 23rd., 1905 by Act of Sale passed before Louis A. Hubert, Notary Public, in New Orleans, Louisiana, and recorded in the Parish of Plaquemines, State of Louisiana, in C. O. Book No. 39, Folio 812, and in Book P. No. 188, Folio 470 of Conventional Mortgages; and being a portion of the lands which were granted by Act No. 18 of the Session of 1894 of the General Assembly of the State of Louisiana to the Board of Commissioners for the Buras Levee District; and being' a portion of the lands conveyed by the said Board of Commissioners for the Buras Levee District to Jas. D. Lacey, and a portion of the lands conveyed by the said Jas. D. Lacey to Chas. C. Buck, both of said latter conveyances having been made by Acts of Sale passed before J. C. DeArmas, Notary Public, at Bufas, Louisiana, on January 4th., 1896’ — with the exception of the South East Quarter (S.E.%) of the South East Quarter (S.E.%) of Section Twelve (12) Township Twenty-one (21) South, Range Thirty (30) East.
“To have to hold the same, together with all and singular the appu'rtenances and privileges thereunto belonging, or in any wise appertaining thereunto; and all the estate, right, title, interest, and claim whatever, of the said party of the first part, either in law or equity, to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever.”

Defendants maintain that the deed does not convey the land in suit (this land is particularly described in the “Leovy” chain of title under which defendants claim); that the description would be considered too vague to identify any particular lands whatever were it not for the special reference in the deed to the acquisitions of Rectangle, its vendor Buck, Buck’s vendor Lacey and Lacey’s vendor, the Board of Commissioners for the Bufas Levee District; that a perusal of these deeds will show that the only land acquired by Lacey from the Board of Commissioners in Township 21 S. R. 30 E. was the first 12 sections thereof; that no other land within that Township subsequently inured to the Buras Levee District under the provisions of Act No. 18 of 1894; that such land could not inure, as it was “sovereignty” land and that, accordingly, Lacey did not and could not transfer the land in controversy to Buck and the latter did not and could not convey to Rectangle and so on.

In answer to this contention, plaintiffs submit (1) that the description in the Rectangle-Rose deed is sufficient and includes the land in contest; (2) that the title acquired by Rose from Rectangle is valid; (3)alternatively, that defendants are es-topped to deny that Rectangle had a valid title which passed to Rose; (4) that, even if Rectangle did not have a good title, the title which it acquired from Mr. and Mrs. Kranebell in 1927 (under which all defendants claim) inured to the benefit of Rose under the doctrine of after-acquired title; (5) that, moreover, the title acquired by Kranebell from Hayne, his vendor, was nothing more than a security title since Hayne’s acquisition from the Leovy heirs created an antichresis and that Rectangle was the holder of the equitable title and (6) that, at all events, Rose and his successors have a good title by the ten year acquisitive prescription.

We shall discuss the various contentions and counter-contentions in order. Preliminarily, let us consider the nature of the deed from Rectangle to Rose — that is, whether that deed conveyed any land to Rose or whether it merely quitclaimed whatever right, title and interest Rectangle may have had in and to the property described therein.

The deed recites in substance that the party of the first part has “re-mised, released; sold, conveyed, and quit-claimed, and by these presents does remise, release, sell, convey and Quit Claim * * * all the right, title, interest, claim and demand which said party of the first part has in and to the following described piece of land * * Obviously, the declarations do not convey the land but only the right, title and interest of the vendor. It is in the nature of an assignment of a right or an interest and as such falls squarely within the category of the common law quitclaim deed. Examination of ou'r Civil Code discloses the absence of provisions relative to quitclaim deeds. The articles on sales of property and the obligations and rights resulting therefrom do not mention quitclaim deeds; Articles 2500 through 2504 respecting the warranty of the seller being confined to treatment of sales with warranty, express and implied, and those where warranty is specifically excluded. On the other hand, quitclaim deeds are fully recognized in the jurisprudence and have many times been considered by our courts. 26 Corpus Juris Sec-undum, verbo, Deeds, § 8, page 181, defines a quitclaim deed as follows:

“A quitclaim deed is one which purports to convey, and is understood to convey, nothing more than the interest or estate in the property described of which the grantor is seized or possessed, if any, at the time, rather than the property itself.”

The authorities from the Federal courts and the courts of other states are that, in determining whether a deed is a quitclaim or not, reference must be made to the language used therein for the purpose of ascertaining the intention of the parties. Williams v. Rabb, Tex.Civ.App., 161 S.W.2d 121. The fact that the deed is denominated a quitclaim is not conclusive (Wise v. Watts, Ariz, 239 F. 207, 152 C.C.A. 195; Cook v. Smith, 107 Tex. 119, 175 S.W. 1094, 3 A.L.R. 940), nor does the fact that the words “bargain and sell” are used necessarily imply that the grantor is absolute owner and that he is not merely quitclaiming his right, title and interest. Brown v. Harvey Coal Corporation, D.C.E.D. Ky., 49 F.2d 434; Young v. Clippinger, 14 Kan. 148. Examination must be had of all of the recitals contained therein in an effort to resolve the true intent. Here, we think, as above stated, that the recitals are clear and show merely a transfer of the interest of Rectangle in two townships and do not convey any property.

On the other hand, the title to real property may be as effectually transferred by quitclaim as by any other form of conveyance. But such a deed conveys only such title or interest that the grantor had at the time it is given “and excludes any implication that he has any title or interest.” 26 C.J.S., Deeds, § 118, page 415. Nevertheless, it is established in Louisiana that a quitclaim deed is sufficient to support the ten year acquisitive prescription provided by Article 3478 of the Civil Code. See Smith v. Southern Kraft Corp., 202 La. 1019, 13 So.2d 335 and cases there cited.

This jurisprudence is to be regarded as an exception in favor of a good faith possessor holding under a quitclaim deed for, as a matter of fact, a conveyance of the vendor’s title and interest in property does not convey the 'property itself. Albeit, the purchaser is put on immediate notice that he is not acquiring land but merely the interest of his vendor in the land. And, while it may be appropriate to say that the purchaser in good faith may use the conveyance to support title by prescription, he cannot otherwise acquire more than the interest conveyed. Thu's, the title examiner is alerted, when confronted with such a deed, to delve further to ascertain the interest of the vendor in order to know the exact property which is embraced in the conveyance.

With these principles in mind, we approach a discussion of the title upon which the plaintiffs rely. Manifestly, Rose acquired whatever interest Rectangle had in and to all the land in Township 21 S. Ranges 29 and 30 E., contprising an area of 46,060 acres, more or less, except 429 acres which were specially excluded. What was Rectangle’s interest? In the deed, it is stated that these are the same lands which Rectangle acquired from Buck in 1909.; also that they are a portion of the lands which were granted by Act No. 18 of 1894 to the Buras Levee District and a portion of the lands conveyed by the Board of Commissioners of that District to Lacey, who conveyed them to Buck. The description contained in the act of sale from Buck to Rectangle, dated October 23, 1905, is as follows:

“All the land being in Plaquemines Parish State of Louisiana on the right bank of the Mississippi River, about Eighty five (85) miles below the City of New Orleans, described as follows,
“All the land in Township Twenty-one (21) South Ranges Twenty-nine and Thirty (29 & 30) East in the Southeastern Land District Louisiana West of the Mississippi River, with the exception of lots 1, 2, 3 and 4, in Township 21 S. Range 30 E. which said lots contain 109.05 acres, according to the official plats of survey thereof made by the U. S. Government to which lots this vendor has no title, and also excepting the Three Hundred and Twenty acres (320) lying immediately in the rear of said Lots 1, 2 and 3 which were sold by the State of Louisiana to C. C. Packard by patent No. 526, dated Sept. 30th, 1869.
“None of the lands in these two Townships have ever been surveyed with the exception of said lots 1, 2, 3 and 4, but the north boundary 12 miles (or more) long.
“The west boundary 6 miles long and the south boundary of the western most Township i e T. 21 S.R. 29 E. have all been officially fixed by survey by authority of the U. S. Government.
“The starting point of the East boundary of T. 21, S.R. 30 E. has also been fixed by the same authority, the completed area is in excess of Forty six thousand and eighty acres (46,080).
“Although no survey of the land has ever been made adverse title is claimed to 3,920 acres or less in T. 21 S.R. 30 E. and 4020 acres or less in T. 21 S.R. 29 E. in fractional subdivisions of section according to the official plat of survey thereof on file in the State Land office of Louisiana. Suit to set aside such adverse claim is now pending in the U. S. Circuit Court of the Eastern District of La. No. 13330.
“This vendor’s title descends to him by chain of title from the State of Louisiana, which by act of the General Assembly No. 18 of the session of 1894, granted the said lands together with much adjoining lands to the Board of Commissioners for the Buras Levee District and the said Board of Commissioners for the Buras Levee District conveyed six townships, being the two above described, and four other adjoining by act of sale on Jan. 4th, 1896 before J. C. deArmas, Notary Public at Bur-as, La. to Jas. D. Lacey and on the same day the said Jas. D. Lacey conveyed the whole of said six townships, including the two hereby sold to the vendor by act of sale before the same Notary Public.
“This vendor conveys the said lands, above described i. e. All of T. 21 S.R. 29 and 30 E. excepting 429.05 acres, with full warranty except as to the 7,940 acres or less adversely 'Claimed as set out above to which he sells only his right, title and interests but expressly reserves warranty.”

The recitals of the deed make it clear that, whereas Buck was claiming all of the land in Township 21 S., Range 30 E., there were outstanding adverse titles to fractional subdivisions of that land and it is further stated that Buck had brought a suit to set aside such adverse claims. Under the circumstances, Buck was unwilling to warrant title to those lands which were adversely. claimed and he therefore transferred only his right, title and interest, expressly reserving warranty. It is conceded by plaintiffs that the lands in contest are part of the property adversely claimed by the Leovy heirs under patents from the State. Hence, Rectangle acquired only such interest as Buck had in and to those lands. What was his interest?

Buck, as aforesaid, acquired from Lacey the same lands which the Board of Commissioners of the Buras Levee District had earlier on the same day (January 6, 1896) deeded to Lacey. The pertinent part of the description of the transfer from the Levee District to Lacey reads as follows:

“All those lands now belonging to or which may hereafter inure to the Board of Commissioners for the Buras Levee District under the provisions of act No. 18 of the General Assembly of the State of Louisiana passed at the regular session of the year 1894 * * * and included within the limits of * * * Township Twenty-one (21) S., Range thirty (30) East * *

The record reveals that the only lands included within Township 21 S., Range 30 E., acquired by the Levee Board were Sections 1 to 12 inclusive as these were the only lands deeded to the Levee Board by an act of conveyance from the Auditor and Registar of the State Land Office, as required by the provisions of Act No. 18 of 1894. See State v. Aucoin, 206 La. 787, 20 So.2d 136, and authorities there cited holding that, according to provisions in statutes creating the several levee districts throughout the State, the title to the lands conveyed in general terms did not pass to the board of Commissioners of the levee district until an instrument of conveyance would be signed by the State Auditor and the Register of the State Land Office and be recorded in the conveyance records of the parish where the land described in the instrument is situated. Moreover, it is clearly shown in this case that'the lands in controversy are “sovereignty” lands (see State v. Buck, 46 La.Ann. 656, 15 So. 531) and, therefore, never belonged to and were not acquired from the Federal government. Hence, such lands could not pass to the Levee Board under Act No. 18 of 1894. See State ex rel. Board of Commissioners v. N. A. Baker, 146 La. 413, 83 So. 693.

Inasmuch, therefore, as ■ the Levee Board obtained no title whatever to the lands in contest, neither Lacey, Buck nor Rectangle acquired a title to them under the subsequent conveyances and it follows that Rose did not get title by acquiring Rectangle’s interest in T. 21 S., R. 30 E. in 1923.

It is therefore apparent that plaintiffs cannot succeed unless one of their alternative contentions can be maintained. The first one of these contentions is that defendants are estopped to deny that Rectangle had- a valid title which passed to Rose. This point is without merit. Title to real estate cannot be acquired by estop-pel (see Pan American Products Co. v. Robichaux, 200 La. 666, 8 So.2d 635), although the doctrine may be employed for the purpose of prohibiting a grantor- from denying that an after-acquired' title passed by the original conveyance. See 31 Corpus Juris Secundum, verbo Estoppel, § 21, page 203; Standard Oil Co. v. Allison, 196 La. 838, 200 So. 273 and Jackson v. United Gas Public Service Co., 196 La. 1, 198 So. 633.

This leads us to a discussion of plaintiffs’ principal alternative contention — viz., that, even though Rectangle did not have a-title to the land in controversy when it sold its interest in the two townships to Rose in 1923, its subsequent acquisition of the property from Mr. and Mrs. Kranebell in 1927 inured to the benefit of Rose under the doctrine of after-acquired title.

The doctrine of after-acquired title is recognized in the jurisprudence of this state but, heretofore, its application has been limited to cases where the vendor warranted title to the conveyed property. See Wells v. Blackman, 121 La. 394, 46 So. 437; Standard Oil Co. v. Allison, supra, and Jackson v. United Gas Public Service Co., supra. It is easy to see why one, who sells with warranty, becomes estopped from thereafter acquiring a title to the prejudice of his grantee. To hold that the title he acquires inures to his grantee is really nothing more than an enforcement of the grantor’s obligation to deliver a good title. Andl it may even be proper to extend application of the doctrine to a sale without warranty where the land conveyed is adequately described. In such a case, it might be argued that the vendor would be precluded from subsequently acquiring an adverse title to the prejudice of the vendee under Article 2504 of the Civil Code, which declares that:

“Although it be agreed that the seller is not subject to warranty, he is, however, accountable for whát results from his personal act; and any contrary agreement is void.”

See’ also Articles 2503 and 2505.

On the other hand, it is quite manifest that the doctrine of after-acquired title should not be expanded to include a quit-claim deed, primarily for the reason that a conveyance of that character transfers only the present interest of the vendor in the land and does not convey the property. It is generally accepted by the leading authorities (see 16 American Jurisprudence Verbo “Deeds” Section 344; Chesney v. Valley Live Stock Co., 34 Wyo. 378, 244 P. 216, 44 A.L.R. 1266; 162 A.L.R. 566 and 31 Corpus Juris Secundum Verbo, Estoppel, § 22, page 205) that there is no basis for the application of the doctrine of after-acquired title where the vendee is claiming under a quitclaim deed. And this Court, in Benton v. Sentell, 50 La.Ann. 869, 24 So. 297, 301, in distinguishing the quit-claim deed from an act of sale, remarked that it “reaches, only to interests actually pwned at that time by the party executing it * * This being so, there is no reason why the vendor should not thereafter acquire title evert though it be adverse to the vendee holding under the deed.

In support of the proposition that the doctrine of after-acquired title is applicable to this case, plaintiffs rely heavily upon the decision in Rapp v. Lowry, 30 La. Ann. 1272. In that matter, Rapp brought a petitory action against Lowry to recover 160 acres of land which he claimed under a tax sale dated December 14th 1872 (sold for taxes of 1871, assessed to an owner “unknown”). Previously, on April 13, 1870, Rapp had sold and conveyed to Lowry his claim and interest in and to the lands. The court found that the tax sale of 1872 was void and that, therefore, he had no title whatever. Notwithstanding this, the court went on to say that, even if the tax sale was otherwise valid, Rapp would not be permitted to recover as

“It is shocking to morals, and to common honesty and decency, it cannot be tolerated in law, that a vendor, even without warranty, should subsequently acquire a title superior to that which he conveyed to his ven-dee, and attempt to oust his vendee under that title.”

Apart from the fact that the foregoing language (and other elaborations unnecessary to repeat) is pure obiter dicta and therefore not binding as a precedent, it is evident to us that the author of the opinion could not have realized the unseemly consequences of the remarks when applied to the facts which were there under consideration. Indeed, if it be assumed that the tax sale was valid, we are unable to discern why Rapp should have been barred from buying the property merely because he had previously sold it to Lowry in 1870.

The next point of the plaintiffs is that the deed from Rectangle to Rose conveyed to the latter an equitable title to the property in suit because Buck became vested with such a title in 1905 which inured to his vendee, Rectangle. This proposition is founded on the following facts: In the deed of October 23, 1905, by which Buck conveyed to Rectangle (the pertinent provisions of which we have quoted above), it was recited that there .was an adverse outstanding title to 3920 acres in T. 21 S., R. 30 E. and, as to that land, Buck reserved warranty conveying to Rectangle only “his right, title and interest * * (As heretofore explained, the land in contest is located within the 3920 acres to which Buck sold only his right, title and interest.) The deed further made mention of Buck’s suit against the heirs of Leovy in the United States Circuit Court for the Eastern District of Louisiana, wherein he claimed ownership to these lands which the Leovy heirs held under patents from the State. On November 17th 1905, or approximately three weeks after he had conveyed his right, title and interest in the lands to Rectangle, Buck compromised his suit with the Leovy heirs for the sum of $4,000. Being unable to pay the amount of the compromise, he borrowed the money from Frank B. Hayne, who evidently insisted that title to the property be placed in his name for security purposes, and, on November 17th 1905, the Leovy heirs conveyed all of the lands involved in the suit to Hayne without warranty for the recited consideration of $4000. On the same day, Buck discontinued his suit against the Leovy heirs and gave them a full release. Later, it appears that Buck had become further indebted to Hayne— for, on June 7, 1909, Hayne recovered judgment against him in the Federal Court for the sum of $9651.43. Subsequently, Hayne filed suit on the equity side of that court in which he alleged that he was holding a security title to the property acquired from the Leovy heirs; that Buck had never paid the judgment due him and he prayed that the court order the property sold in satisfaction of the debt. The demand was resisted by Buck but the claim of Hayne prevailed and the property was ordered sold by the court. Buck appealed from this judgment. This appeal was subsequently dismissed in the year 1918 for lack of prosecution. While the appeal was pending, viz., on November 11, 1913, Hayne sold all of his right, title and interest in the real estate to Wilbur R. Kranebell for the recited consideration of $12,273. Buck joined in this deed, formally acknowledging that he was without claim of any kind against Hayne arising from or in any way connected with Hayne’s title to the property. He further took cognizance of all of the stipulations contained in the deed, expressly consenting thereto and ratifying and confirming the same.

It is the theory of plaintiffs that, inasmuch as Hayne admittedly held title to the property as security for the payment of Buck’s debt to him, the equitable title vested in Rectangle because Buck sold all of his right, title and interest to Rectangle a few weeks before the land was conveyed by the Leovy heirs to Hayne. And they further profess that the subsequent release by Buck of any claims he might have to the property, which is contained in the Hayne-Krane-bell deed, amounted to naught as the equitable title had already vested in Rectangle.

The point is not tenable. The first objection is that it could not be sustained without application of the doctrine of after-acquired title which we have already rejected insofar as quitclaim deeds are concerned. In Buck’s conveyance to Rectangle, he transferred only his right, title and interest in the land in controversy (this portion of the deed is to be regarded as a quitclaim), recognizing in the deed that there were adverse claims to any title he might assert. Hence, Rectangle acquired no title but only such interest as Buck had at the time of the transfer. As heretofore demonstrated, Buck had no interest whatever in these lands as Lacey, his vendor, did not acquire title to them from the Buras Levee District. If Buck subsequently acquired an interest in the lands, he had the right to abandon it to Hayne and Krane-bell as it did not become vested in Rectangle.

Plaintiffs also contend that Rectangle had a good title when it conveyed its interest in T. 21 S., R. 30 E. to Rose in 1923, because it had acquired the land in controversy from Mrs. Edith N, Kranebell on July 6, 1921, by quitclaim deed. The record shows that property assessed in the name of Rectangle Ranche Company, under a similar description to that contained in the 1905 Buck-Rectangle deed, was sold by the State to H. J. Harvey for taxes for the year 1916. It further appears that Harvey quitclaimed this same property on July 16, 1921, to Edith N. Kranebell and, two days later, Mrs. Kranebell quitclaimed to Rectangle.

We find that the quitclaim of Mrs. Kranebell did not convey to Rectangle the lands in controvesy but only such lands as it had acquired from Buck in 1905. An examination of the sheriff’s deed to Harvey shows clearly that these were the lands standing in Rectangle’s name. To make the matter absolutely certain, 'it appears that at the same tax sale Harvey also acquired the land in contest for taxes of 1916. This land was particularly described and assessed to W. R. Kranebell. Harvey quitclaimed this land to Mrs. Kranebell on October 6, 1921.

Plaintiffs also contend that Rectangle acquired the property in dispute by tax deed from the State dated October 1st 1921. The record shows that, at a tax sale on that date, the Sheriff of Plaquemines Parish sold the land to Rectangle for 1920 taxes under an assessment in the name of W. R. Kranebell. Defendants maintain, however, that this sale was an absolute nullity for the reason that the property, under the same description, had been previously adjudicated to the State, on September 25, 1920, under. an assessment in the name of Johnson Armstrong for taxes for the previous year, 1919.

With these facts.before us, it is patent that the tax sale of 1921 is void as it is well established that, where property has been adjudicated to the State and not redeemed in time and manner provided by statute, the taxing officers of the State are without power to assess and sell the property as belonging to the former owner or any other person. See Board of Commissioners v. Concordia Land & Timber Co., 141 La. 247, 74 So. 921.

Plaintiffs concede the force of the above mentioned principle but they contend that it cannot be applied here because the adjudication of the property in the name of Johnson Armstrong was invalid as the taxes on the land had been paid under another assessment. In support of this proposition, plaintiffs point to the assessment roll of 1919 for the Parish of Plaquemines which shows that there was assessed in the name of Johnson Armstrong “a tract of land in T. 21 S., R. 29 and 30 E. except lots 1, 2 & 3, in T. 21 S. R. 30 E.” containing 46,080 acres and that the taxes on the land so assessed were paid.

We do not think that the assessment roll referred to sustains plaintiff’s position. It merely shows that the lands which Buck sold to Rectangle under the omnibus township description had been assessed to Johnson Armstrong and it cannot be construed to mean that the payment of taxes on that assessment was a payment of the taxes on the lands owned by Kranebell (but assessed to Armstrong), which were adjudicated for non-payment of taxes and are specifically described in said adjudication.

The reason why the land in contest was assessed to Johnson Armstrong is made manifest by certain exhibits offered in evidence by defendants. They show that, on July 15, 1918, the tax collector of Plaquemines Parish sold the land at tax sale to Johnson Armstrong for taxes of 1918 under an assessment in the name of “Wilbur R. Kranebell (now S. J. Harvey).” A little over a year thereafter, to wit, on August 21, 1919, the property was redeemed from Johnson Armstrong by Kranebell. Thus, since Armstrong was the tax purchaser of the land and held it during 1919, the land was assessed in his name and adjudicated for his failure to pay taxes for that year.

Finally, plaintiffs plead title by the prescription of 10 years provided by Article 3478 of the Civil Code. In support of this plea, they offered considerable testimony showing that, during the period that Rosé held under the quitclaim deed, the lands in the township were used for trapping under-leases from Rose to Rectangle and later to ■other persons; that Rose posted “no trespassing” signs on the lands in 1923 or 1924; that he granted a lease to one Samuel George in 1927; that George posted the lands; that plaintiff, Waterman, granted trapping leases for the seasons 1936, 1937 and 1938 and that Rose and Morris executed a mineral lease to Gulf Refining Company in 1928.

The plea is not well founded. In •order to establish the acquisitive prescription, plaintiffs are required to prove, in addition to good faith possession for the required time, that the deed under which they claim describes and identifies the land with clarity and that it is prima facie translative of the property. It is not enough that the description in the deed might be construed to include the land in question. See Bendernagel v. Foret, 145 La. 115, 81 So. 869; Hunter v. Forrest, 195 La. 973, 197 So. 649 and Pierce v. Hunter, 202 La. 900, 13 So. 2d 259 where many applicable authorities are cited and discussed.

The instrument relied on by plaintiffs is a quitclaim deed which does not identify clearly any particular land but merely gives an omnibus description of two entire townships comprising 46,080 acres of land, more or less. While it is settled that a quitclaim deed is sufficient to support the prescription of ten years acquirendi causa (Smith v. Southern Craft Coiporation, supra), it is equally well recognized that the deed can only support such prescription if it contains “the essential requirements,” i. e., an adequate description of the lands to which the grantor’s right, title and interest is conveyed. Pierce v. Hunter, supra. Here, the conveyance refers to all of the land in two townships without reference to sections or subdivisions. This type of description is wholly inadequate (even if the acquisition clauses are not considered) to form the basis of a title translative of property. The dangers of regarding such an omnibus description as being sufficiently translative of title to support the acquisitive prescription seem most apparent when consideration is given to the evidence showing the type of use which plaintiffs claim established possession of the land in dispute — some signs, leases, and trapping over a large area of land of a sporadic nature, without a scintilla of proof to show that the specific sections, in which the land in controversy lies, were actually possessed or even entered. It is not too far fetched to remark that it would be nearly as logical to say that, if Rectangle had sold Rose its entire interest in all of the land in Plaque-mines Parish or, for that matter, the whole State, such a deed would be adequate to translate a title to all such land mentioned and that that sort of description would be sufficient to support a plea of prescription.

The judgments appealed from are affirmed.

O’NIELL, C. J., recused.

HAMITER, Justice

(dissenting).

Even if Rectangle did not have a good title when it conveyed to Rose (plaintiffs’ author) in 1923 by the so-called quitclaim deed, which unquestionably was supported by a valid and sufficient consideration, the title later acquired by it in 1927 from Mr. and Mrs. Kranebell (under which defendants claim) inured, in my opinion, to the benefit of Rose, and, hence, to plaintiffs under the doctrine of after-acquired title.

Therefore, I respectfully dissent.

       Plaintiffs assert that the real consideration was the cancellation and surrender by Rose of a certain note for $55,000 made by Rectangle and secured by a mortgage on the property described in this deed. Parol evidence was offered to prove the contention.

       The authorities are not entirely uniform on this question as it had been held in the early cases that good faith possession under a deed tranferring the vendor’s right, title and interest in described land could not form the basis for the ten year acquisitive prescription. See Eastman v. Beiller, 3 Rob. 220; Reeves v. Towles, 10 La. 276 and Avery v. Allain, 11 Rob. 430. However, in Read v. Hewitt, 120 La. 288, 45 So. 143, the court departed from this doctrine and the older cases were overruled by indirection. There, after citing the cases and a comment from Hennen’s Digest, the court concluded that “there is no material difference between the sale of property and the sale of all the vendor’s right, title, and interest therein, because such a transfer includes all that the vendor can sell or the purchaser acquire.” In support of the statement, the court quoted the following language from 13 Oye. 655: “A conveyance of all the grantor’s right, title and interest in and to certain described property will be construed as a conveyance of all his estate in such property, and the whole estate will vest in the grantee.” It seems apparent that the quotation relied upon .does not sustain the conclusion of the court because the language does not purport to announce that a conveyance of right, title and interest transfers the thing itself but' only expresses the idea that the vendor’s interest in the whole estate is conveyed. Of course, it is clear that, if the interest of the vendor extends to the whole estate, the entire property is transferred. On the other hand, if the vendor has no interest in the property, nothing will be conveyed.
      Be this as it may, the decision of Read F. Hewitt has been consistently followed and the use of a quit-claim deed as a basis for acquisitive prescription is no longer an open question. See Smith v. Southern Kraft Corp., supra; Perkins v. Wisner, 171 La. 898, 132 So. 493; Screen v. Trainor, 172 La. 51, 133 So. 359 and Cherami v. Cantrelle, 174 La. 995, 142 So. 150.

       But see Rapp v. Lowry, SO La.Ann. 1272, hereinafter discussed.