author: HALL, Judge. SEXTON, Judge,

text:
    Beulah Howell BROWN, et al., Plaintiffs-Appellees, v. Vera McClanahan WOOD, et vir., Defendants-Appellants.
    No. 15886-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    Writ Denied June 15, 1984.

      Cameron C. Minard, Columbia, for defendants-appellants.
    Dimos, Brown, Erskine & Burkett by David G. Erskine and Donald R. Brown, Monroe, for plaintiffs-appellees.
    Before PRICE, HALL, MARVIN, JASPER E. JONES and SEXTON, JJ.
   HALL, Judge.

Plaintiffs filed a petitory action against defendants to establish their ownership of a tract of land in Caldwell Parish. The trial court awarded judgment in plaintiff’s favor and defendants have appealed. We affirm in part, reverse in part, and remand.

Plaintiffs in this cause are Donald R. Brown, Charlotte Brown Hislop, Beulah Howell Brown, and Henry Brown. Defendants are husband and wife, Charles and Vera Wood. In this petitory action filed June 3, 1982, the plaintiffs, Browns, sought legal recognition of their ownership of the Bouef River river front tract to which they held the record title. In a decision rendered June 15, 1983, the trial court awarded judgment in plaintiff’s favor, recognizing the Browns as owners of the tract in question and ordering defendants, the Woods, to surrender possession of that property.

The tract at issue, approximately 5 acres in Section 18, Township 14 North, Range 5 East, is located between the southern bank of the Bouef River and other property held by the Woods under record title, and is traversed by Louisiana Highway 133. The following diagram illustrates the situation:

The tract in question is part of a larger tract which was deeded to Dr. S.H. Brown, plaintiffs’ ancestor in title, in 1904. The same tract was sold by Dr. Brown to Ernest “Buddy” Oliveaux and Tray Ritchie in 1936. In 1944, the tract was purchased at a sheriffs sale by Erwin and Cecil Brown, the sons of the then deceased Dr. S.H. Brown. Cecil and Erwin Brown have both since died intestate, and the four instant plaintiffs are their heirs. Plaintiffs Donald Brown and Charlotte Brown Hislop are the children and sole heirs of Cecil Brown. Plaintiffs Beulah Howell Brown and Henry Brown are the widow and son, respectively, of Erwin Brown, and his sole surviving heirs. Upon the deaths of Cecil and Erwin, the four instant plaintiffs acquired record title to the tract in question via intestate succession. Thus, plaintiffs are the record owners of the contested property.

In 1956, defendants Charles and Vera Wood purchased from Ernest “Buddy” Oli-veaux a plot of land in Section 19 immediately to the south of the disputed tract. The deed from Buddy Oliveaux to the Woods did not include or encompass the contested tract. However, subsequent to the 1956 conveyance to the Woods of the property abutting the south end of the contested river front acreage, the Woods performed various acts of corporeal possession on the disputed tract. In 1981, the Woods acquired a quit claim deed to that part of the Brown tract lying north of the highway from the Oliveauxs.

Ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. Under the general codal provisions on acquisitive prescription, a possessor lacking good faith and/or just title may acquire prescriptive title to land by corporeally possessing a tract for 30 years with the intent to possess as owner. Such possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public and unequivocal, and confers title only to such immovable property as is actually possessed. LSA-C.C. Arts. 3424, 3476, 3486, 3487, 3488. Alternatively, under Civil Code Art. 794, a title holder may acquire more land than his title calls for by possessing property beyond his title for 30 years without interruption and within visible bounds. Such a title holder may attain the thirty year possessory period — which is necessary to perfect prescriptive title in the absence of good faith and just title — by “tacking” on the possession of his ancestor in title. LSA-C.C. Arts. 794, 3442. Possession is only transferable by universal title or particular title, and thus privity of contract or estate is an essential prerequisite to tacking. LSA-C.C. Art. 3441.

The legal principles which govern tacking under Civil Code Article 794 are in some respects different and distinct from the principles which govern tacking under Civil Code Articles 3441 and 3442 (formerly embodied in Articles 3493-3496). Article 794 deals with boundary prescription, strictly speaking, while Articles 3441 and 3442 provide general rules which refer in broader terms to acquisitive prescription of property, generally.

Article 794 states that:

“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.”

Article 3441 provides that:

“Possession is transferable by universal title or by particular title.”

Tacking under Article 794 is different from tacking under the general tacking provisions of Articles 3441 and 3442 in the following respect:

Under Article 794, the privity of title between the possessor and his ancestor in title need not extend to the property to which the possessor asserts prescriptive title; under Article 794, the juridical link, or written instrument which passes to the possessor from his ancestor in title need not encompass or include the particular property to which the possessor claims prescriptive title. On the other hand, it is generally conceded under the general tacking provisions of Articles 3441 and 3442 and their statutory pre-cursors, that tacking is only allowed with respect to property that is included and described in the juridical link between the possessor’s ancestor in title and the possessor himself.

Simply stated, under Art. Y94 (old Art. 852), one may utilize tacking to prescribe beyond title on adjacent property to the extent of visible boundaries, but under the general prescriptive articles, Arts. 3441 and 3442, tacking may be utilized to prescribe only to the extent of title. As was succinctly stated by former Justice, then Judge Tate, in Stanford v. Robertson, 144 So.2d 747, 750 (La.App. 3d Cir. 1962),

“Under LSA-C.C. art. 3499, the possession of the predecessors in title cannot be added to that of the present possessor, unless the title of the present possessor includes the property in dispute, else there is no privity of estate such as is necessary to make up the thirty years adverse possession “as owner ”. On the other hand, under LSA-C.C. Art. 852, the tacking of successive possessions up to the established visible bound between two estates is permitted, whether or not the land in dispute is included within the title description of the party pleading prescriptive title under this article.” (Citations omitted).

However, when correctly viewed, there still must be some juridical link to effectuate tacking under either species of tacking, whether it is Article 794 or Articles 3441 and 3442.

The fact that Article 794 envisions that tacking requires some juridical link or privity of title between the possessor and his ancestor is clear. That statute affords prescriptive title only in instances where there has been thirty years of possession by the possessor “and his ancestors in title.” (Emphasis added). The fact that Art. 794 envisions tacking only where there is privity of title is therefore clear from the fact that this Article expressly authorizes tacking not in terms of a predecessor in possession, but in terms of an “ancestor in title.”

In summary, tacking allows one to prescribe beyond title under Art. 794, and not under Articles 3441 and 3442; but nevertheless some juridical link, or some title privity in contract or estate, is required before tacking is allowed under either Articles 3441 and 3442 or 794. See generally, Stutson v. McGee, 241 La. 646, 130 So.2d 403 (1961); Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957); Buckley v. Catlett, 203 La. 54, 13 So.2d 384 (1943); Emmer v. Rector, 175 La. 82, 143 So. 11 (1932); Opdenwyer v. Brown, 155 La. 617, 99 So. 482 (1924); Sibley v. Pierson, 125 La. 478, 51 So. 502 (1910); Morrison Grain Co., Inc. v. Charrier, 410 So.2d 1202 (La. App. 3d Cir.1982); Speight v. Dowden, 405 So.2d 887 (La.App. 3d Cir.1981); Rimmer v. Jowers, 385 So.2d 1261 (La.App. 3d Cir. 1980); Fruge v. Lyons, 373 So.2d 220 (La. App. 3d Cir.1979); Fiorello v. Knecht, 334 So.2d 761 (La.App. 4th Cir.1976); Trahan v. Frankland, 317 So.2d 298 (La.App. 3d Cir.1975); Hilcliffe Farms, Inc. v. Marshall, 306 So.2d 337 (La.App. 3d Cir.1975); Carpenter v. Cobb, 293 So.2d 888 (La.App. 1st Cir.1974); Stanford v. Robertson, supra; Mills v. Butler, 131 So.2d 262 (La. App. 1st Cir.1961); Nelken v. Aldredge, 128 So.2d 843 (La.App. 3d Cir.1961); Hadwin v. Sledge, 116 So.2d 114 (La.App. 2d Cir.1959); Roberson v. Green, 91 So.2d 439 (La.App.2d Cir.1956); Finley v. Morgan, 80 So.2d 196 (La.App. 2d Cir.1955); Sattler v. Pellichino, 71 So.2d 689 (La.App. 1st Cir. 1954); Courvelle v. Eckart, 50 So.2d 325 (La.App. 1st Cir.1951).

See also, Chaney, Prescription Under Article 852, 13 La.L.Rev. 582 (1953); Dainow, Prescription, Louisiana Legislation of 1964, 25 La.L.Rev. 352 (1965); Comment, Tacking of Possession for Acquisitive Prescription, 8 La.L.Rev. 105 (1947); Comment, The Civil Code Articles on Establishment of Boundary, 56 Tul.L.Rev. 370 (1981); Note, Civil Law Property — Tacking Without Juridical Link, 24 La.L.Rev. 888 (1964); Note, Immovables — Thirty-Year Acquisitive Prescription — Tacking, 38 Tul.L.Rev. 575 (1964); Note, Immova-bles — Boundary Prescription Under Arti cle 852—Tacking of Possessions, 37 Tul.L. Rev. 333 (1963).

It should be noted that Opdenwyer v. Brown, supra, is often mistakingly cited for the proposition that privity is not required for tacking under Art. 794. Such references are misleading and inaccurate since in Opdenwyer the possessor did have privity with his predecessor in title with respect to property adjacent to the disputed tract. Thus, there was privity of title in Opdenwyer, although it did not extend to the contested tract. Moreover, we have been unable to find any instances in Louisiana jurisprudence in which tacking has been allowed under Art. 794 (old Art. 852) absent some type of privity, though privity often embraces adjacent property or interests without the possessor’s or his ancestor’s title extending to the disputed property itself.

Privity of estate or contract is essential to tacking possessions for the theoretical reason that—absent such privity— succeeding possessions of the same tract are legally viewed as merely unconnected acts of trespass. In the absence of privity, acts of adverse possession by different possessors “can be construed only as a series of trespasses.” Upon the termination “of each of these acts the possession returns, by operation of law, to the record owner of the property.” Roberson v. Green, supra, at 447. See also, Buckley v. Catlett, supra; Emmer v. Rector, supra; Sibley v. Pierson, supra.

Privity of title denotes a relationship which “may be created by a deed, as in a sale, by an act, such as a donation, or by operation of law, as in a succession.” Note, Immovables—Thirty-Year Acquisitive Prescription—Tacking, 38 Tul.L.Rev. 575, 577 (1964). See also, Stutson v. McGee, supra; Emmer v. Rector, supra; Harang v. Golden Ranch Land & Drainage Co., 143 La. 982, 79 So. 768 (1918). Privity of title, at least with respect to immovable property, cannot be created by verbal transactions, and as a general rule cannot be proved by parol evidence. As was stated by the Supreme Court in Stut-son v. McGee:

“In our research ... we have carefully examined numerous other Louisiana authorities; but in none has any language been found which tends to support the contention of this defendant that, for the purpose of effecting an accrual of the 30 years’ prescription, possession alone can be transferred by mere actions or by verbal agreement and that the transfer may be shown by parol evidence. 130 So.2d at 407.”

In the instant suit, it was stipulated by the parties at trial that the Browns had perfect record title to the tract at issue: the Brown’s chain of title extended back in unbroken sequence to the sovereign, such title having been ultimately derived from a patent deeded to a private citizen by the United States Government. Since the Browns thereby established by stipulation that they held perfect record title to the property, the burden of proof in this petito-ry action shifted to the Woods to establish by a preponderance of the evidence that they had acquired prescriptive title to the tract. Verret v. Norwood, 311 So.2d 86 (La.App. 3d Cir.1975), app. den., 313 So.2d 842 (La.1975); Clayton v. Langston, 311 So.2d 74 (La.App. 3d Cir.1975); Tinney v. Lauve, 280 So.2d 588 (La.App. 4th Cir. 1973).

In discharging their burden of proving prescriptive title, defendants, the Woods, may not rely on the codal provisions conferring prescriptive title to immovable property upon ten years good faith possession since defendants have proven neither just title nor a good faith belief in ownership with respect to the tract in question. LSA-C.C. Arts. 3473-3485. Since they may not avail themselves of the good faith prescription of ten years, the Woods must prove that they have satisfied the above-stated requirements of 30 years prescription.

One of the most fundamental requirements of 30 years prescription is of course the requirement that possession continue for 30 years. LSA-C.C. Art. 3486. However, the Woods themselves have only performed possessory acts on the disputed tract since 1956. The Browns interrupted the Woods’ possession and acquired prescription by filing suit in 1982. LSA-C.C. Art. 3462. Thus, the Woods did not accumulate the necessary 30 years of possession in the 26 year period between 1956 and 1982.

Since it is clear that the Woods themselves did not possess the disputed tract for the required 30 year period, they must tack the possession of the Oliveauxs onto their own possession in order to achieve the requisite 30 year period. The Woods accordingly contend that the Oliveauxs possessed the disputed tract for many years prior to the Woods’ possession; they further contend that by tacking their own possession to that of the Oliveauxs, they have accumulated the 30 years of possession necessary to acquire prescriptive title.

The Woods are entitled to tack on the possession of the Oliveauxs. Although their 1956 deed from Oliveaux was not filed into evidence, it is clear from several references in the record that Oliveaux conveyed by deed to the Woods the NW/4 of the NW/4 of Section 19, less a portion thereof, which tract Oliveaux had acquired from Brown several years earlier. It does not appear that plaintiffs dispute this fact or that any issue was made of it at trial. The trial court’s written reasons for judgment state: “The record at trial shows that the Woods acquired the adjacent property on March 9, 1956 by deed from Earnest Oli-veaux, husband of Enolua Curry.” The briefs filed on behalf of the plaintiffs in the trial court and this court contain reference to the defendants’ ownership of the adjacent property to the south. Consequently, there exists the juridical link or privity of title which is essential to tacking.

The Woods also established the required 30 years possession by them and their ancestor in title to part of the disputed tract. The section line between Sections 18 and 19 is located at varying distances' of only about 50 to 150 feet south of the curving highway. Oliveaux and then the Woods lived on the tract to which they had record title in a house located on the south side of the highway for more than 30 years prior to the time this suit was filed. In addition to maintaining their front yard to the highway, they maintained the balance of the property along the highway for raising crops and for pasture. The highway, and a fence along the south side of the highway, served as a visible north boundary of the property possessed by them as part of their homeplace. It appears that their possession extended to extentions of their east and west boundaries. The Woods and their ancestor in title, Oliveaux, possessed for more than 30 years, without interruption, within visible bounds, more land than their title called for, that is, the narrow strip between their north property line and the highway.

There is also considerable evidence of their possession north of the highway, between the highway and the river. However, there is contrary evidence and considering the contradictory evidence as to that strip, we defer to the trial court’s finding that the Woods failed to carry their burden of proof as to possession of that part of the disputed property north of the highway.

The Woods also stake their claim to tacking upon a quit claim deed to that part of the disputed tract lying north of the highway, executed by the Oliveauxs in favor of the Woods. However, this quit claim was not executed until 1981, at which time — as the trial court duly noted — “this controversy was already boiling,” and a dispute between the parties as to the tract in question had already fomented. We agree with the trial court that, under these circumstances, a quit claim deed executed in 1981 does not effectuate tacking with respect to a piece of property that was conveyed in 1956. In so holding, we are influenced by the Supreme Court’s position that a juridical act confected under such circumstances is suspicious.

As was stated in Stutson v. McGee, 130 So.2d at 407,

“In a further endeavor to substantiate the claim of privity between himself and his predecessors in possession this defendant introduced a document styled an “Act of Correction and Confirmation” executed, after this suit was filed, by three of the seven persons then interested as vendors and which purported to show an intention to convey the disputed property. Because that instrument was belatedly confected we entertain serious doubt that it was admissible in evidence, for seemingly to approve such a practice in aid of the accrual of the acquisitive prescription might well provide a method for the perpetration of fraud.”

However our view in this regard is not based solely on Stutson. Our position is predicated as well upon the a priori nature of tacking itself. Tacking, by its very nature, combines such possession of the ancestor in title which has accrued immediately prior to the transfer of the property with the possession of the possessor which accrues immediately subsequent to the transfer. It is the time of the transfer itself which constitutes the “day of reckoning” in computing the periods to be tacked. The possessory period of the ancestor in title which has accrued immediately prior to transfer of title is added to the possessory period of the succession in title which has accrued immediately subsequent to transfer of title. Thus, at the time the quit claim was confected, the ancestor, Oliveaux, had no accrued possession to transfer. In the strictest sense, privity may not be retroactively established subsequent to a transfer of possession. Privity of title must exist at the time possession is transferred, else there is no succession under title to the rights of the predecessor.

We are mindful that Coats v. Lee, 70 So.2d 229 (La.App. 2d Cir.1954), may be asserted as contrary to this proposition, and to Stutson v. McGee, supra. In Coats, the Court of Appeal remanded the cause to the trial court to receive in evidence a deed between the plaintiff/son and his predecessor/mother which it had previously excluded. The deed in question was asserted by the son as his basis for privity, and it was executed subsequent to the initiation of litigation.

In our view, however, the holding in Coats is not contrary to the result reached herein. In Coats, the Court of Appeal was cognizant that the plaintiff had initiated the proceedings as an action of jactitation, that the petitory issues had arisen solely as a result of defendant’s answer, and that the trial court entirely excluded consideration of the quit claim. Moreover, the trial court was simply instructed to consider the deed along with the other evidence in the case, and was not definitively instructed to give the deed effect. Thus, considering that Coats was commenced as an action of jactitation in which the trial court wholly failed to consider a submitted quit claim, and that the Court of Appeal’s decision was therefore based on evidentiary considerations rather than substantive precepts, we do not read Coats to unequivocally mandate that privity may be retroactively established in a petitory action. Simply stated, the Coats court merely ruled that the deed in question was an evidentiary matter which should have been considered.

We note also that Coats may be distinguished from our case, insofar as in Coats the trial court apparently failed to make a crucial factual finding as to whether the deed embodied a genuine intent to transfer property rights, or merely a spurious desire to prevail in a litigious dispute. In the instant case, on the other hand, the trial court clearly found that the deed was intended not to transfer real rights, but to engineer a desired result in a legal contest. The trial court specifically considered the quit claim in our cause and determined, with respect to the parties’ underlying intent, that the quit claim in question was confected simply for the purposes of litigation, and did not reflect a genuine intent to convey real rights. This finding of the trial court is supported by the fact that defendant’s evidence of possession is considerably more tenuous with respect to the tract north of Highway 133 to which the Woods received a quit claim, and by the trial court’s observation that defendants, the Woods, failed to call or depose the Oliveauxs, the parties from whom the quit claim was obtained.

In summary, Coats is not contrary to our holding herein, and is moreover distinguishable. We simply hold that this quit claim, which the trial court found embodied a spurious intent, which was executed while litigation was in the offing, and which involved a tract of land not adjacent to the title property of the party seeking to tack, is insufficient to establish privity for the purposes of tacking under LSA-C.C. Art. 794.

We further note the Woods’ argument that the Browns lost ownership of the tract in question by not exercising possession of it for a 30 year period. However, this legal contention runs directly counter to the related codal precepts that possession and ownership are distinct, and that “ownership exists independently of any exercise of it and may not be lost by nonuse.” LSA-C.C. Art. 481.

The district court judgment is correct insofar as it recognizes the plaintiffs as the owners of that part of the disputed tract north of the highway, and the judgment is affirmed to that extent. Insofar as the judgment of the district court recognizes the plaintiffs as owners of that part of the disputed tract south of the highway, it is reversed and set aside. The defendants are recognized as the owners of that part of the disputed tract south of the highway which adjoins the property of which they are record owners. The action is remanded to the district court for entry of a judgment in accordance with this decision, which judgment should describe the property involved as required by LSA-C.C.P. Art. 1919. Costs of these proceedings, including the costs of appeal, are assessed equally to the plaintiffs and defendants.

Affirmed in part, reversed in part, and remanded.

SEXTON, J., dissents and assigns written reasons.

PRICE, J., dissents for the reasons assigned by SEXTON, J.

SEXTON, Judge,

dissenting.

I respectfully dissent in part.

I am of the view that the judgment of the trial court should be affirmed in its entirety. Upon the showing of record title by plaintiffs, the burden shifted to the defendants to prove by a preponderance their actual, public, continuous, uninterrupted and corporeal possession of the property for a period of at least thirty years. The defendants can only do so by virtue of LSA-C.C. Art. 794, which allows prescriptive acquisition beyond title with tacking, since the property at issue is not within the bounds of the property to which defendants apparently have a title.

With respect to the juridical link essential to successful tacking under Art. 794, the majority says that “[i]t does not appear that plaintiffs dispute this fact or that any issue was made of it at trial.” I agree that the matter was not an issue at the trial. The defendants only pled LSA-C.C. Arts. 3441 and 3442. The first mention of the concepts of Art. 794 that I can find in the case was the trial court’s gratuitous holding that the defendants did not establish the necessary privity or juridical link to succeed under Art. 794 — stating that, “[t]he only link, and it is not a juridical one, between the Defendants and their ancestor in title relative to the property in dispute is the hearsay testimony of Yera Wood that the Oliveaux told her they possessed to the bank of Beouf River.”

Of course, Louisiana rejects the theory of the case doctrine and it can thus be argued that the defendants are entitled to relief because they “apparently” have privity. However, the other party is entitled to basic notice. LSA-C.C.P. Art. 1005. Although the defendants pled a title in their answer, they never carried their burden of proving such. It may be that plaintiffs have a counter contention with respect to defendants’ apparent privity or title which they did not assert because privity was never an issue during the trial. Moreover, plaintiffs in their brief to us assert that they have not conceded the issue.

Thus, I am unwilling to accept that the vital juridical link is apparent, and believe that under the posture of this record, the plaintiffs should succeed.

      . Art. 794, enacted by Act No. 169 of 1977, was intended to clarify but not change the law expressed in old Article 852, and we therefore need not address the problem of retroactivity herein. Fruge v. Lyons, 373 So.2d 220 (La.App. 3d Cir.1979). Article 852 formerly provided as follows:
      Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.

      . Civil Code Articles 3441 and 3442 as presently enacted are derived from old Articles 3493-3496 which provided as follows:
      Art. 3493. Addition of possession by author of title; tacking.
      The possessor is allowed to make the sum of possession necessary to prescribe, by adding to his own possession that of his author, in whatever manner he may have succeeded him, whether by an universal or particular, a lucrative or an onerous title.
      Art. 3494. Author, definition.
      By the word author in the preceding article, is understood the person from whom another derives his right, whether by a universal title, as by succession, or by particular title, as by sale, by donation, or any other title, onerous or gratuitous.
      Thus, in every species of prescription, the possession of the heir may be joined to that of the ancestor, and the possession of the buyer to that of the seller.
      Art. 3495. Tacking of possessions, continuity required.
      But to enjoy this advantage, the different possessions must have succeeded each other without interval or interruption.
      Art. 3496. Continuity of possessions in case of succession.
      We do not consider as an interval between two possessions, that which takes place between the decease of the testator and the acceptance of the succession by the heir; the possession of the deceased being considered in law as continued in the person of his heir.

      .Civil Code Article 3442 provides that:
      "The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.”

      . The Supreme Court’s decision in Noel v. Jumonville Pipe and Machinery Co., 245 La. 324, 158 So.2d 179 (1963), is a jurisprudential aberration and is apparently contrary to the traditional theoretical distinction between tacking under Art. 794 (old Art. 852) and tacking under the general prescription articles. In Noel, the Court apparently sanctioned a possessor’s utilization of tacking to prescribe beyond title under the general prescription articles. We believe that the better view is that espoused by Justice Tate in Stanford—namely tacking may only be utilized to prescribe beyond title under Art. 794. Moreover, we are inclined to the view that the law remains to this effect. In the first instance, Noel could be interpreted as allowing tacking only to the extent of title, insofar as the Court therein relied on a general or expansive title description which arguably embraced the disputed tract. Additionally, the Noel decision's apparent indication that tacking beyond title might be allowed under the general prescription articles was vociferously disputed in two stinging dissents, 158 So.2d 188 (McCaleb, J., dissenting), 158 So.2d 190 (Sanders, J., dissenting); and the apparent stance of the Noel Court has been almost universally disavowed by commentators. See generally, Dainow, Prescription, Louisiana Legislation of 1964, 25 La.L.Rev. 352 (1965); Comment, The Civil Code Articles on Establishment of Boundary, 56 Tul.L.Rev. 370 (1981); Note, Civil Law Property—Tacking Without Juridical Link, 24 La.L.Rev. 888 (1964); Note, Immovables—Thirty-Year Acquisitive Prescription—Tacking, 38 Tul.L.Rev. 575 (1964).
      Notwithstanding the problematic effect of Noel on the law, it does not in any fashion undermine our basic proposition herein, that some kind of privity is required to tack under either Art. 794 or the general prescription articles.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    Cecil Thomas GRAY, JR., (Plaintiff-Appellant), v. Doris Patricia Barker GRAY, (Defendant-Appellee).
    Nos. 15962-CA, 16211-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    Rehearing Denied May 25, 1984.

      Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appellant.
    Sockrider & Bolin by H.F. Sockrider, Jr., Shreveport, for defendant-appellee.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff filed suit to terminate his obligation to pay permanent alimony to defendant on the grounds that defendant was living in open concubinage. Plaintiff additionally sought to terminate his alimentary obligation on the grounds that a change in his ex-wife’s financial circumstances rendered his support unnecessary. The trial court rejected plaintiff's claims on both counts. We affirm.

Plaintiff in this cause is Cecil Thomas Gray, Jr., a former resident of Natchitoch-es, Louisiana. Defendant herein is Patricia Gray, Mr. Gray’s former wife. These two parties were married on February 17, 1977, and were divorced by a judgment filed November 15, 1982. There were no children born of their marriage. The judgment of divorce ordered Cecil Gray to pay Patricia Gray permanent alimony at the rate of $500 per month.

On May 12, 1983, Cecil Gray filed a rule to terminate his obligation to pay permanent alimony to Patricia Gray, on the grounds that the “defendant in rule [Patricia Gray] [had] entered into open concubinage” with another man. The trial court rejected plaintiff's demand on May 25, 1983, finding that plaintiff had not proven open concubinage. The plaintiff appealed.

On July 14, 1983, plaintiff again filed a rule to terminate permanent alimony. Plaintiff again contended that the defendant, Patricia Gray, was living in open concubinage, and also asserted that she had experienced a change in her financial circumstances which rendered continued alimony unnecessary. The trial court rejected plaintiffs demand to terminate permanent alimony in a judgment rendered October 17, 1983, finding that plaintiff had proven neither open concubinage, nor a change in financial circumstances sufficient to justify a reduction or termination of permanent alimony. The plaintiff Cecil Gray has also appealed this judgment. The appeals of these two judgments are consolidated here.

The first issue to be addressed herein is whether the trial court erred in finding that the plaintiff had not proven that the defendant Patricia Gray was living in open concubinage with another man subsequent to the judicial dissolution of her marriage to the plaintiff. The remaining issue is whether the trial court erred in finding that defendant Patricia Gray’s financial circumstances had not changed sufficiently — since the judicial setting of permanent alimony— to justify a reduction or termination of permanent alimony.

I.

Open Concubinage Claim

The definition of “open concubinage,” as that term is employed in Article 160, was presented as a matter of first impression to this Court in Thomas v. Thomas. This Court determined in Thomas that the term of “open concubinage” possesses the same meaning under Article 160 that it does under Civil Code Article 1481 which prohibits those living in open concubinage from donating immovable property to each other. Our adherence to the position articulated in Thomas is fundamentally based on the consideration that the term “open concubinage” has possessed a definitive legal meaning in Louisiana “for over a century,” and a judicial distortion or displacement of that meaning would constitute judicial legislation. We remain of the view that, having failed to supply a different term, the legislature simply did not desire or mandate that a different concept be operative in the termination of alimony.

“The term open concubinage has a well-established legal significance, and we believe that in employing this term, the legislature intended that it be accorded its traditional and firmly established meaning; had they intended otherwise, they could have employed a different precept which emphasized habitual sexual acts, rather than quasi-marital status.” Thomas, supra, at 884.

The legal content of the term open concubinage was articulated in detail in Thomas:

[T]he courts have historically insisted that a definite meaning be ascribed to both the words “open” and “concubinage,” before finding that the legal requisites of open concubinage have been proven. “Concubinage” is derived from the Latin term concubinatus. This term signified, in Roman civilization, a relationship or cohabitation in which the man and woman generally resided together as husband and wife without the benefit of the formalities, civil effects and legal consequences of a formal marriage. Succession of Jahraus, 114 La. 456, 38 So. 417 (1905). Thus to this day, concubinage has retained the signification of a relationship in which a man and woman live together as husband and wife without being legally married. Henderson v. Travelers Ins. Co., 354 So.2d 1031 (La. 1978); Succession of Moore, 232 La. 556, 94 So.2d 666 (1957); Succession of Franz, 232 La. 310, 94 So.2d 270 (1957); Succession of Jahraus, supra; Succession of Keuhling, 187 So.2d 520 (La.App. 3d Cir.1966); Purvis v. Purvis, 162 So. 239 (La.App. 2d Cir.1935). It is crucial to the definition of open concubinage to note that it depicts a status or relationship, rather than an act or series of acts. Succession of Moore, supra; Succession of Franz, supra; Succession of Jahraus, supra; Succession of Keuhling, supra. Concubinage is not constituted merely by “acts of fornication or adultery, however frequent or even habitual.” Succession of Jahraus, 38 So. at 418. Moreover, “the concubine must not be confounded with the courtezan, or even with what is ordinarily called a mistress. She is the wife without a title.” Gauff v. Johnson, 161 La. 975, 109 So. 782, 783 (1926). Concubinage depicts a state of affairs in which the man and woman exercise with respect to each other the rights and privileges of marriage. Succession of Lannes, 187 La. 17, 174 So. 94 (1936). Thus, concubinage could be defined as a relationship of sexual content in which man and woman live together as husband and wife in a state of affairs approximating marriage. It should be noted, however, that although living together is- important to a finding of concubinage, it is not absolutely essential. Succession of Filhiol, 119 La. 998, 44 So. 843 (1907); Succession of Jah-raus, supra; Succession of Keuhling, supra; Succession of Hamilton, 35 La. Ann. 640 (La. 1883); Paxton v. Paxton, 173 So. 488 (La.App. 1st Cir.1937).
In applying the concept of “open concubinage,” the Louisiana courts have also ascribed a definite and distinct meaning to the term “open.” Thus, it is not enough that concubinage be proven. The courts have additionally required that concubinage be “open.” Concubinage is said to be open, when the illicit relationship is not disguised, concealed, or made secret by the parties. Concubinage is open when the parties involved avow their illicit relationship by words or conduct. Succession of Keuhling, supra; Succession of Jahraus, supra; Paxton v. Paxton, supra. A finding of “openness” clearly does not require that the parties verbally acknowledge their illicit relationship: “[M]en of position do not proclaim from the housetops their illicit connections.” Succession of Filhiol, supra, 44 So. at 847. See also Jones v. Kyle, 168 La. 728, 123 So. 306 (1929); Succession of Jahraus, supra. However, efforts taken by the parties to conceal their illicit relationship militates against a finding of openness. Thomas, supra, at 881.

As indicated in Thomas, the requirement of openness does not require that a person explicitly refer to a concubine as a spouse; the requirement of openness may be satisfied by the mere absence of concealment, by the parties, of the illicit relationship.

Plaintiff’s open concubinage allegation is centered upon the contention that the defendant Patricia Gray is presently living in open concubinage with Andrew Maggio. Patricia Gray was married to Andrew Mag-gio from 1954 until 1976. Four sons and one daughter were born of this marriage. At the time of trial, one of the sons was a minor, and the four remaining children were of the age of majority.

Plaintiff established that Patricia Gray currently lives in a home owned by Andrew Maggio at 605 Royal Street in Natchitoch-es. Moreover, Mr. Maggio pays the monthly note on said house, pays Mrs. Gray’s grocery and utility bills, pays her insurance premiums, and provides her with an automobile and spending money. Mr. Maggio frequently eats at the house and keeps some of his clothes and toiletries there. Mr. Maggio periodically visits the household in the morning and at evening. It is uncontroverted that Mr. Maggio took a four day trip to Las Vegas with Mrs. Gray subsequent to her divorce from the plaintiff.

Plaintiff’s claim that Patricia Gray was living in open concubinage with Andrew Maggio prior to trial was predicated principally upon the testimony of private investigator Howard Malpass. Plaintiff attempted to establish, through the testimony of Mr. Malpass, that Mr. Maggio frequently spent the night at the Royal Street residence. Mr. Malpass surveilled the Royal Street residence on several separate occasions in June of 1983. He testified as to Mr. Maggio’s presence at the residence, and the written investigative report compiled by him on a day-by-day basis was also admitted into evidence.

Mr. Malpass’s testimony indicates that on six of the seven occasions that Mr. Malpass “staked out” the Royal Street residence owned by Mr. Maggio, and occupied by Patricia Gray, Mr. Maggio spent the night at this residence. Mr. Malpass’s testimony further reflects that the sole occasion during the surveillance period that Mr. Maggio did not stay at the Royal Street residence occurred on the night of June 15 when a sales representative for Mary Kay cosmetics spent the night there. Mr. Mag-gio reportedly stayed at his son’s apartment on that occasion. Mr. Malpass accordingly concluded, in the written report admitted into evidence, that

“It is with out a doubt that MR. MAG-GIO, and MRS. GRAY are indeed living with each other unless the time arises that for a Moral Standard such as the visit by the Mary Kay person comes, he will leave and stay somewhere else for the night. This has only been seen one time during the surveillance, by us.”

Plaintiff attempted to corroborate the testimony of Howard Malpass with the testimony of Robert Bailey, an acquaintance of Cecil Gray, who conducted an informal surveillance of the Royal Street residence in January of 1983. Mr. Bailey testified that on every night between January 2 and January 6 of 1983, he observed one or more cars, registered under Mr. Maggio’s name, located at the Royal Street residence shortly before or after midnight.

In attempting to rebut the plaintiff’s testimony of open concubinage, defendant Patricia Gray presented testimony that she and Mr. Maggio had at no time lived together or even spent the night together since Mrs. Gray’s divorce from the plaintiff, Cecil Gray. Mr. Maggio, Mrs. Gray, and three of their children unequivocally testified that Mr. Maggio-moved out of the 605 Royal Street residence on January 1, 1983 — the same date that Mrs. Gray moved in — and has not resumed living there. It was thus their testimony that Mr. Maggio willingly vacated the house owned by him in order to provide a home for his former wife, and more especially his one minor son, Drew, of whom Patricia Gray had custody. Mr. Maggio testified that, after vacating his home on January 1, 1983, so that Mrs. Gray and Drew could occupy it, he lived in several different locations. He testified that he lived at 123 Second Street, at a house adjoining his produce company, from January of 1983 until June. In June and July he lived in the East Village Apartments with his major son, Greg, and on August 1, he began living at 1013 Marie Street with another adult son, Ralph. Mr. Maggio, Mrs. Gray, and the three children unequivocally testified that Mr. Maggio and Mrs. Gray had not lived together since Cecil Gray and Patricia Gray were divorced, and that the two had not spent the night together in that period.

Mr. Maggio and Mrs. Gray both testified that they spent their four day trip to Las Vegas with another couple, and slept in separate beds. Mr. Maggio admitted that he frequently visited the household at 605 Royal Street, but testified that these visits were made primarily to see his minor son, Drew, who was living with his mother, Patricia Gray. It is further clear that the Royal Street residence was a way station or central gathering place of sorts for Andrew Maggio’s and Patricia Gray’s four adult children, and that Andrew Maggio visited the household to spend time with his grown children as well. Moreover, the numerous vehicles and motor boat owned by Mr. Maggio were kept at the Royal Street residence since there was inadequate parking therefore at the various apartments resided in by Mr. Maggio. Thus, Mr. Mag-gio often went to the Royal Street residence to exchange vehicles with his children, or to pick up his van and boat for his frequent fishing expeditions.

Mr. Maggio readily admitted that he paid Mrs. Gray’s living expenses. However, Mr. Maggio further testified in this regard that his largesse was rooted in a concern for the welfare of his minor son, Drew, and Patricia Gray, with whom Drew was living. His contention in this respect comports with the evidence of Patricia Gray’s means and needs: Mrs. Gray was unemployed subsequent to her divorce from Cecil Gray. Moreover, she received alimentary support from Mr. Gray on a very sporadic basis, Mr. Gray being thrice adjudged in contempt of court for non-compliance with judicial orders of support.

The defendant presented rebuttal evidence for the specific instances that Mr. Malpass testified he had seen Mr. Maggio spending the night at the residence. This evidence cast doubt on the correctness of Mr. Malpass’ observations. It appears, moreover, that Mr. Malpass was confused on several occasions during his surveillance as to the identity of Mr. Maggio and Mrs. Gray. With respect to the former, he apparently confused Mr. Maggio’s oldest son with Mr. Maggio, and with respect to the latter, apparently mistook a neighbor for Mrs. Gray. Thus, the evidence was in conflict, and as the trial court stated, in evaluating the weight of Howard Malpass’s testimony,

“there have been [too] many obvious cases of mistaken identity by Mr. Mal-pass to place any reliance on his testimony or his written report. Now we are not attacking Mr. Malpass’s integrity, simply his improper identification.... Mr. Malpass has just made a number of mistakes in identifying Mr. Andrew Mag-gio.”

Robert Bailey testified that vehicles registered to Andrew Maggio were seen late at night at the residence of Patricia Gray. However this testimony was countered by the defendant’s showing that Andrew Mag-gio owns at least four vehicles all of which are frequently used by his daughter, sons, and his former wife, Patricia Gray. Moreover, Andrew Maggio continually alternated the vehicles used by him, using his vehicles interchangeably. It is significant in this context that Mr. Bailey expressly admitted, at trial, that he had not made late night sitings of Mr. Maggio himself at the Royal Street residence, but had merely seen Mr. Maggio’s vehicles.

Therefore, the trial court’s evaluation of the evidence is supported by the record and is not to be disturbed by us absent a determination that the trial court evaluation is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under the trial court’s evaluation, it has not been shown that there was even one instance when Mr. Maggio spent the night. The record simply reflects that Mr. Maggio ate meals at 605 Royal Street and provided financial support to Patricia Gray and his minor son, Drew, who was entrusted to the custody of Patricia Gray. Thus the showing made does not comport with the standard of open concubinage we established in Thomas, supra.

II.

Change in Financial Circumstances

Plaintiff-appellant’s other contention is that defendant’s financial circumstances have changed sufficiently to justify a reduction or termination in permanent alimony.

Permanent alimony must be revoked if it becomes unnecessary to the ex-spouse/recipient. LSA-C.C. Art. 160. Thus, the spouse obligated to pay permanent alimony may seek a revocation of such alimony whenever changed circumstances in the financial posture of the payor and/or recipient justify a termination. Rains v. Rains, 376 So.2d 1298 (La.App. 2d Cir. 1979); Kees v. Kees, 292 So.2d 307 (La.App. 1st Cir.1974); Morace v. Morace, 220 So.2d 775 (La.App. 1st Cir.1969). An interrelated complex of statutory factors is utilized in determining the adequacy of, or lack of need for, a given level of permanent alimony. These relevant consideration have been broadly drawn and encompass the income, means, assets and earning capacity of the spouses, as well as their liabilities and obligations. LSA-C.C. Art. 160. Property, as well as income, is properly considered. Loyacano v. Loyacano, 358 So.2d 304 (La.1978); Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950). In evaluating whether alimony is needed and therefore legally appropriate, the courts must examine the totality of circumstances indicative of both parties’ financial condition. See Loyacano, supra.

If the husband’s financial capability allows, the husband is obliged to ensure the maintenance of his ex-wife who has been found free of fault in the divorce proceeding. See Loyacano, supra, Ducote v. Ducote, 339 So.2d 835 (La.1976); Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950); Meyers v. Meyers, 344 So.2d 451 (La.App. 2d Cir.1977). Maintenance, in this context, primarily connotes food, shelter and clothing. Smith, supra. However, more recent jurisprudence establishes that the concept of maintenance includes reasonable and necessary expenditures for an automobile or other transportation, utilities, household maintenance, and income tax. Loyacano, supra; Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Meyers, supra. A spouse need not be destitute to qualify for permanent alimony. Loyacano, supra; Smith, supra; Smith v. Smith, 416 So.2d 134 (La.App. 2d Cir.1982). Moreover, she need not in all circumstances fully deplete her assets or sell her house in order to retain her alimentory eligibility. Loyacano, supra; Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950); Rains, supra; Powell v. Powell, 344 So.2d 453 (La.App. 2d Cir. 1977); Loe v. Loe, 131 So.2d 106 (La.App. 2d Cir.1961).

In the final analysis, the permanent alimony determination is sensitive to all of the relevant facts of each case. See Loyacano, supra; Meyers, supra; Fisher v. Fisher, 320 So.2d 326 (La.App. 3d Cir. 1975). This determination is insusceptible of being reduced to a mathematical computation. The spouse seeking to change permanent alimony has the burden of proving that circumstances have sufficiently changed between the time of fixing of alimony and the hearing to modify or terminate, to justify a change. Loyacano, supra; Bernhardt, supra; Powell, supra; Fisher, supra; Morace, supra. The trial court possesses broad discretion in making the alimony revocation determination, and its judgment will not be disturbed absent manifest abuse. Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir.1975).

The principal change in financial circumstances alleged by plaintiff concerns the considerable financial support provided by Andrew Maggio to Patricia Gray. However, this largesse on the part of Andrew Maggio was motivated in part by Cecil Gray’s persistent refusal to discharge his alimentary obligation to Patricia Gray, and the law is well settled that one party’s legal obligation to pay alimony is not obviated by the gratuity of another. Shelton v. Shelton, 395 So.2d 899 (La.App. 2d Cir. 1981); McCole v. McCole, 383 So.2d 55 (La.App. 2d Cir.1980). Thus, Mr. Maggio’s gratuitous support of Patricia Gray cannot, under these circumstances, justify a reduction or termination of permanent alimony.

Plaintiff also alleges that Patricia Gray is able to work. This assertion is supported by the record insofar as Patricia Gray admitted that, although she is bothered by osteo-arthritis, she is capable of part-time work. It is true, moreover, that an ex-wife’s earning capacity is to be considered in assessing her entitlement to permanent alimony, and that an ex-wife who is reasonably equipped to work should do so. LSA-C.C. Art. 160. However, in seeking a reduction or termination of permanent alimony on the grounds that a change in financial circumstances has occurred, the party seeking the termination or reduction must establish a significant change or modification in the parties’ circumstances since the time permanent alimony was last modified or set. Bernhardt v. Bernhardt, supra; Nash v. Nash, 431 So.2d 1090 (La.App. 3d Cir.1983); Bass v. Bass, 417 So.2d 67 (La.App. 3d Cir.1982); Blondeau v. Blondeau, 396 So.2d 403 (La.App. 1st Cir.1981); Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980); Willis v. Willis, 355 So.2d 999 (La.App. 4th Cir.1978), writ denied, 356 So.2d 1389 (La.1978). See especially, McNeill v. McNeill, 223 So.2d 709 (La.App. 4th Cir.1969). Although plaintiff established that Patricia Gray is presently capable of employment, he did not establish that Patricia Gray was incapable of work at the time alimony was set. Thus, the fact that Patricia Gray is not presently working — under the extant circumstances — doss, not justify a reduction or termination of permanent alimony because the plaintiff simply has not proven a change in this regard.

In the final analysis, the trial court is vested with great discretion in making alimony determinations, and its rulings in that respect will not be disturbed absent a manifest abuse of discretion. Dugas v. Dugas, 428 So.2d 1059 (La.App. 1st Cir. 1983); Renfroe v. Renfroe, 428 So.2d 875 (La.App. 1st Cir.1983); Firstley v. Firstley, 427 So.2d 76 (La.App. 4th Cir.1983).

For the foregoing reasons, we conclude that plaintiff has not proven open concubinage or a change in financial circumstances legally sufficient to justify a reduction or termination of permanent alimony. The judgment of the trial court is therefore in all respects affirmed, the costs of this appeal to be assessed to plaintiff-appellant.

AFFIRMED.

      . As we noted in Thomas v. Thomas, 440 So.2d 879, at 884, note 2 (La.App. 2d Cir.1983), there were two versions of Article 160 enacted by the Legislature in 1982. Only that enacted by Act 580 of 1982 terminated permanent alimony upon a finding of open concubinage. Here as there, we believe the correct statutory version is that embodied in Act 580.
      The version of Article 160 enacted by Act No. 293 of 1982 provides that:
      A. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse.
      In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; and any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.
      B. The court may award alimony in lump sum in lieu of or in combination with permanent periodic alimony when circumstances require it or make it advisable, and the parties consent thereto. In determining whether to award lump sum alimony, the court shall consider the needs of the claimant spouse and the financial condition of the paying spouse. In awarding lump sum alimony in lieu of or in combination with permanent periodic alimony, the court shall consider the criteria enumerated in paragraph A of this article, except the limitation to one-third of the paying spouse’s income, in determining entitlement and amount of alimony.
      A lump sum award may consist of immovable or movable property or may be a monetary award payable in one payment or in installments.
      The later enacted version of Article 160 enacted by Act No. 580 of 1982, and relied upon by this court, reads as follows:
      When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse's earning capacity; the time necessary for the recipient to acquire appropriate education, training or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capacity, in light of all other circumstances.

        This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage. (Emphasis added.)

      . Thomas v. Thomas, 440 So.2d 879, 880-81 (La.App. 2d Cir. 1983).


author: MARVIN, Judge.

text:
    SUN EXPLORATION AND PRODUCTION COMPANY, et al., Plaintiff-Appellee, v. J.D. ROGERS, et al., Defendant-Appellant.
    No. 16191-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Bethard & Davis by James G. Bethard, Coushatta, for defendants-appellants, Bur-nis & Charlotte Wilburn.
    John W. Wilson, Shreveport, for plaintiff-appellee.
    Gamble & Sledge by Jack W. Gamble, Jr., Mansfield, for defendants-appellees, J.D. and Althea M. Rogers.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

This concursus was instituted to resolve a contest over production royalty accruing under an oil and gas lease on 235 acres that was executed by a predecessor in title common to the defendants-contestants, Wilburn and Rogers. Wilburn appeals a judgment decreeing that the royalty should be paid 155/235ths to Rogers and 80/235ths to Wilburn.

Wilburn contends that he should receive the entire royalty because the producing well is located on the 80 acre tract he acquired from the common predecessor in title and not on the 155 acre tract that was acquired by Rogers. The record does not reveal that a drilling and production unit was established for the producing well. See LRS 30:9. The issues concern the effect and applicability of what is called the “entirety clause” of the lease. We affirm the judgment.

FACTS

On September 5, 1972, Buckley, the common predecessor in title, executed the lease which was later assigned to plaintiff, Sun Exploration. The 235 acres were contiguous but were acquired by Buckley in different tracts at different times. The Buckleys were Mississippi residents. The northernmost 90 acres was community property while the remaining 145 acres was Buckley’s separate property which he had inherited. The lease, for a five year term, was a Bath’s Form Louisiana Spec. 14-BR1-2A-PX 10-65 Oil, Gas and Mineral Lease which covered the 235 acres. Production was obtained in 1977 from the Paluxy sand at a depth of about 2980 feet.

Buckley’s wife died in 1978 before royalty payments began. Buckley’s son, Tyrie Buckley, was recognized in a judgment of possession in his mother’s succession as the owner of an undivided ⅛ interest in the northernmost 90 acres. Sun Exploration began paying royalty ⅝ to Buckley and ¾⅛ to his son, Tyrie.

Buckley died testate in 1980. His will directed that the southernmost 145 acre tract be sold to Rogers and that the proceeds be placed in trust for Buckley’s grandchildren. Buckley’s will also bequeathed his ⅝ undivided interest in the northernmost 90 acres to his son, Tyrie. The succession representative consummated the sale of the 145 acres to Rogers on September 18, 1981, as the will directed. Tyrie Buckley was placed in possession of the 90 acres on October 15, 1981. On October 19, 1981, Tyrie Buckley sold the northernmost 80 acres to Wilburn, and on the next day, he sold the remaining or southernmost 10 acres to Rogers. There was no mention or reservation of minerals, royalty or other such rights in any of these transactions which occurred after the lease was executed in 1972. The producing well is in the northwesternmost five acres of the 80 acres acquired by Wilburn.

Wilburn contends that the trial court erred because Buckley “intended” that Tyr-ie Buckley receive the entire royalty from the well. The deposition of Tyrie Buckley and his father’s will are in evidence. The pertinent portion of the will says:

“To my legally adopted foster son, Tyrie Latimer Buckley, I bequeath my portion of the ninety acre tract of land I bought from the heirs of Tom Mustin in the year 1949, my portion being five-sixths of the total ninety acres according to the inheritance laws of the State of Louisiana, where this land is located in the southern portion of DeSoto Parish. This bequest I consider to amount in value to more than a third of all my Louisiana property, first because of the fertility of the land, next because there is at this time a producing oil well on it, but more important because there is a stand of Oak timber on it worth at least $15,000 on the present market.”

Tyrie Buckley testified that his father discussed his intentions with him a few months before his father died. He said that his father explained to him why he wanted the 145 acres sold to Rogers, that his father compared for him the “value” of the 145 acres and the 90 acres and explained that the timber on the 145 acres had been cut and that the 90 acres contained more valuable timber, which had not been cut, and the oil well. The remainder of the evidence was stipulated and consisted of the pleadings and other documentary evidence relating to title and to payment of royalty.

Royalty was paid ⅝ to Buckley and Ve to his son before Buckley’s death. After Buckley’s death, Tyrie Buckley was paid the full royalty, according to Tyrie Buckley’s deposition. For the period between October 22, 1981, and August 11, 1982, the royalty was paid to Wilburn. After August 11, 1982, and before the concursus was instituted on December 8, 1982, and retroactively to October 1, 1981, royalty was paid 155/⅛ to Rogers and 8%35 to Wilburn. Sun received a certified copy of Wilburn’s deed to the 80 acres on October 22, 1981. Rogers notified Sun of his acquisition of the 155 acres and of his demands about August 11, 1982.

THE ENTIRETY PROVISION

“[Entirety] clauses are inserted in leases primarily for the benefit of the lessee to make it clear to lessors or subsequent transferees of the lessor or lessors that inside property lines created by later divisions of the fee ownership or by royalty conveyances shall not affect the lessee’s duties of development and operation. (It is clear, however, that even absent such clause, the duties of the lessee may not be increased by virtue of subsequent transfers by the lessor or lessors.) By virtue of an entirety clause in the lease, royalties from production under the lease are usually apportioned among mineral and royalty owners in accordance with their interest, wherever the well or wells may be located on the leased premises. Apparently the fact that a lease covers non-contiguous tracts is of no significance in determining the effect of an entirety clause upon the apportionment of royalties among the owners of mineral interests.” Williams & Meyers, Oil and Gas Law, § 521.3.

Wilburn agrees that the entirety clause in a lease, in the absence of a contrary provision in a conveyance by the lessor dividing the leased premises, requires that royalties be apportioned as the clause directs. Wilburn contends that the provision should not prohibit the lessor, however, from carrying out his intention to divide the leased premises and to apportion the royalty due him as he sees fit to selective transferees. Shell Petroleum Corporation v. Carter, 187 La. 382, 175 So. 1 (1937), lends some support to Wilburn’s argument, but there the lessor expressly conveyed to each of several vendees a specific royalty interest in a separate part of the leased property. The royalty was not apportioned between the several vendees and each vendee of the lessor was limited to the specific royalty under the specific tract which had been conveyed to him. The court concluded that the lessors in Carter “were at liberty to divide the royalties in [that] manner ...” 175 So. at p. 4. See comment at 12 Tulane L.R. 313 (1938).

Wilburn’s argument is succinctly expressed (and answered, in our opinion,) in a quotation he supplies from § 521.3 of Williams and Meyers, Oil and Gas Law, which we reproduce and emphasize in part:

“(1) An appropriate entirety clause in a lease will cause royalties to be apportioned despite subsequent subdivisions of the leased premises in the absence of contrary provision in a conveyance subdividing the leased premises.
“(2) The presence of such an entirety clause in the lease should not be viewed as inhibiting the lessor from conveying a portion of the leased premises with an express provision for non-apportionment of royalties.
“(3) However as far as the lessee is concerned, his duties may not be increased by such express provision for non-apportionment made in such subsequent conveyance by the lessor.
“(4) And such express provision in such subsequent conveyance does not affect the right of the owner of an interest in another portion of the leased premises to continue to claim the benefit of the entirety clause in the lease so as to be entitled to an apportioned share of the royalty from production anywhere on the leased premises.”

Supporting the above-quoted conclusions in Williams & Meyers is Shell Petroleum Corp. v. Calcasieu Real Estate & O. Co., 185 La. 751, 170 So. 785 (1936). There Mr. and Mrs. Johnston, as lessors, leased two 81 acre noncontiguous tracts in one lease. One tract was community property and the other was separate property of Mrs. Johnston. Production was obtained on the community 81 acres. She contended she should be entitled to 81/i62 of the royalty because of the entirety clause of the lease on the 162 acres over the claim by her husband’s transferees of the 81 acres which before belonged to the community, that they were entitled to all of the royalty. The court agreed with Mrs. Johnston, reasoning that Mr. and Mrs. Johnston effectively “pooled” the two tracts in the lease to provide that royalty would be paid on the basis of 162 acres and apportioned to the owners of that acreage whether that royalty derived from production on one 81 acre tract or the other. See 170 So. at p. 791. See also Superior Oil Producing Co. v. Forrestier, 185 La. 11, 168 So. 313 (1936), pronouncing the same result where leased property had been partitioned into many tracts.

This result illustrates and supports the conclusion of the Williams and Meyers treatise that unless there is an express provision to the contrary in a conveyance by the lessor of a part of the leased property, the entirety clause requires apportionment of the royalty among each owner who acquires a part of the leased property. Robinson v. Horton, 197 La. 919, 2 So.2d 647 (1941), after Carter, approved the result and principle of Calcasieu Real Estate, supra.

The result is more readily comprehended when the lease is analogized to the modern production unit which may be compelled by order of the commissioner or established by conventional agreement. Each of the several owners of mineral rights within the unit is entitled to his respective share of the royalty or production from the unit. This is “pooling,” so to speak, which is mentioned in Calcasieu Real Estate and also in the more recent printed forms of oil and gas leases. See ¶¶ 6 and 7 of the 14-BR1-2A-PX form.

In the absence of forced or voluntary pooling or unitization, the leased property is considered as the producing unit. In the absence of an express provision to the contrary in transfers by the lessor of a part of the leased property, all transferees of the lessor proportionately share the royalty accruing under the lease in accord with their respective acreage in the leased property.

The critical question here presented is not the applicability or the effect of the entirety provision of the lease, but whether the will of George Buckley is an “express provision’’ contrary to the entirety provision. We conclude it is not.

Buckley’s will, dated November 21, 1979, made a specific bequest (quoted above) to his son of Buckley’s ⅝ “interest” in the 90 acres and directed that the 145 acres be sold to Rogers with the proceeds to be placed in trust for the benefit of his son’s two children. The will also included specific bequests to a library, a church, two cemeteries, his daughter-in-law, a cousin, and four collateral in-law relatives. The residuary estate was left to his son. Nothing in the will makes reference to royalty or to income from oil and gas production. Even should we assume Buckley’s intention arguendo, Buckley simply did not expressly “deal” with or direct a division of his royalty accruing under the 235 acre lease between Rogers and Tyrie Buckley. The only mention in the will of the “producing oil well” is that it is on the 90 acres that Buckley bought from Mustin in 1949 and that mention, in our opinion, relates solely to Buckley’s efforts to satisfy the forced heirship laws of Louisiana. Only Tyrie Buckley, the forced heir, can complain that his Louisiana legitime is infringed. His vendee, Wilburn, has no such standing. Rogers, incidentally, is also a vendee of Tyrie Buckley insofar as his deed to the 10 acres is concerned.

Similarly, Buckley’s executor, in the conveyance to Rogers, and Tyrie Buckley, in the conveyance to Rogers and in the conveyance to Wilburn, simply did not mention, deal with, or expressly limit or divide the minerals underlying the land conveyed or the royalty accruing to those minerals.

Rogers acquired 145 acres from Buckley’s executor and 10 acres from Tyrie Buckley which was burdened with the Buckley lease. Wilburn acquired 80 acres from Tyrie Buckley burdened with the same lease. The minerals and accruing royalty were not dealt with in these conveyances. The 235 acre lease executed by Buckley in 1972 is as effective and valid at this date on the 155 acres owned by Rogers as it is on the 80 acres owned by Wilburn, notwithstanding that the producing well “holding” the lease is on the 80 acres conveyed to Wilburn. Calcasieu Real Estate, supra. See LRS 31:123, 124.

Wilburn argues that “the only fair and equitable way to decide this case is to let B.E. Wilburn receive the full royalty for his minerals. If a well is drilled on J.D. Rogers’ land and produces J.D. Rogers’ minerals, then let J.D. Rogers have the royalty.” We do not find merit in this argument because it ignores the practical result that under the status of this record, the 155 acres owned by Rogers is subject to the lease executed by Buckley which is being “held” by production. The lessee is under no obligation to separately develop the Rogers tract. Under these circumstances, it is not inequitable to apportion the royalty among Buckley’s successors in title who own the minerals under the respective tract conveyed to each of them.

CONCLUSION

In summary, either or both Buckley and his son could have dealt with some or all of the royalty from time to time in a manner contrary to the entirety clause, but, of course, not to the detriment of the lessee. They did not, however, expressly deal with the royalty before or after Buckley’s death, in any conveyance or in the will.

Wilburn acquired 80 acres with the minerals subject to the Buckley lease. Rogers acquired 155 acres with the minerals subject to the Buckley lease. Royalty accruing under that lease is owed to the transferees of the leased property in the proportion that each transferee’s property bears to the leased property. Calcasieu Real Estate, supra; Forrestier, supra; Williams and Meyers, supra.

Wilburn also complains that he should not have been assessed with all costs. He suggests that costs should be apportioned equally. CCP Art. 4659 provides that costs in a concursus proceeding may be awarded to the successful claimant or assessed in any manner which the trial court considers equitable. We find no abuse of discretion in the assessment of costs to the unsuccessful contestant in a concursus proceeding.

At appellant’s cost, judgment is AFFIRMED.

      . “It is expressly understood and agreed that the premises leased herein shall, for all the purposes of this lease, be considered and treated as owned in indivisión by the Lessor and shall be developed and operated as one lease, and there shall be no obligation on the part of Lessee to offset wells on separate tracts into which the land covered by this lease may be now or hereafter divided by sale, or otherwise, or to furnish separate measuring or receiving tanks, and all rentals, royalties and other payments accruing hereunder shall be treated as an entirety and shall be divided among and paid to Lessor in the proportion that the acreage (mineral rights) owned by each bears to the entire leased acreage. Lessee may at any time or times pay or tender all rentals or other sums accruing hereunder to the joint credit of Lessor.”


author: McCLENDON, Judge Pro Tempore.

text:
    Andrew T. HARRELSON et ux., Plaintiffs-Appellants, v. Dewitt O. HOGAN and Howell Heard, Defendants-Appellees.
    No. 16204-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Kidd & Kidd by Paul Henry Kidd, Monroe, for plaintiffs-appellants.
    Michael S. Ingram, Monroe, for defendant-appellee, Administrator of Succession of Hogan.
    Davenport, Files & Kelly by William G. Kelly, Jr., Monroe, for defendant-appellee Howell Heard.
    Before PRICE, HALL and McCLEN-DON, JJ.
   McCLENDON, Judge Pro Tempore.

Plaintiffs, holders of a chattel mortgage on movables in a supermarket, appealed a trial court judgment rejecting their claims for damages. For the following reasons we affirm.

In 1966 plaintiffs, Mildred and Andrew Harrelson, purchased the shelving, equipment and inventory in a supermarket known as Hogan’s Discount Foods from Dewitt Hogan. The act of sale was executed before attorney Howell Heard. As additional protection for Mr. Hogan, who was granted a chattel mortgage on the movables in the store, Heard included a provision in the sale which required the inventory to be maintained by the mortgagor at a minimum of $20,000, wholesale price.

The seller, Dewitt Hogan, was also owner of the shopping center in which the supermarket was located. He agreed to lease the building which housed the supermarket to plaintiffs for ten years, with an option to renew.

At the close of the ten year period, the parties agreed to a three year renewal of the lease. However, at the end of this three year lease the parties were unable to reach an agreement concerning a new lease, so plaintiffs decided to sell the business.

Norman Hogan, Dewitt Hogan’s son and a longtime employee of plaintiffs, agreed to purchase the supermarket for the price of $151,950. Andrew Harrelson contacted attorney Heard and requested him to prepare the act of sale.

The sale was executed before Heard on July 2,1979. In the sale the parties agreed that of the purchase price of $151,950, $81,-950 represented the cost of inventory in the store and $70,000 represented the cost of shelving and equipment. The cost of merchandise had been determined by a store inventory conducted the weekend prior to the act of sale by Andrew Harrelson and Norman Hogan. Because the entire purchase price was owner-financed, Norman Hogan issued a promissory note to plaintiffs secured by a chattel mortgage on the movables in the grocery store. Therefore, in order to protect plaintiffs, Heard included a provision in the sale requiring the mortgagor to maintain a minimum inventory. This provision was similar to the one used in the 1966 agreement between Dewitt Hogan and plaintiffs. It stated in part:

“... in the event the mortgagors herein shall permit the stock of merchandise hereinabove described to be reduced (by sales not replaced) to a value of less than _ ($_) dollars valued at wholesale prices, then the entire unpaid balance of said note shall ... become due.”

The blank in the above provision was not filled in when the act of sale was executed.

As an additional inducement to plaintiffs, Dewitt Hogan executed an “act of subordination” in conjunction with the act of sale. He agreed, as lessor of the supermarket building, to subordinate his lessor’s lien on the movables in the supermarket to the chattel mortgage held by plaintiffs. This document was also prepared by Heard.

The blank in the minimum inventory provision was not discovered until August 1981 when Andrew Harrelson, concerned over the apparent depletion of the inventory in the store, examined the act of sale and noticed the blank. At that time he contacted Heard and informed him of the blank. No action was taken to correct the omission. This appears to have been at least partly because of inability to agree on a proper figure.

On August 2, 1982, Norman Hogan sold to his father his undivided one-eighth interest in the real property occupied by the shopping center, inherited by him upon the death of his mother. In consideration for this undivided one-eighth interest, Dewitt Hogan agreed to discharge his son’s $80,-000 debt to him, including past due rent from the supermarket building. This transaction was executed before attorney Heard.

Norman Hogan failed to pay plaintiffs the monthly payment due on August 2, 1982, and on August 20, 1982, he filed a Chapter 11 Bankruptcy. This was later changed to a liquidating bankruptcy in January of 1983.

Plaintiffs then filed suit against Howell Heard and Dewitt Hogan, alleging they had suffered damages equal to the unpaid portion of the promissory note issued by Norman Hogan as a result of the omission of Heard and Dewitt Hogan’s purchase of the undivided interest from his son.

The trial judge correctly found that the transfer of the undivided interest from Norman Hogan to Dewitt Hogan had nothing whatsoever to do with the act of subordination executed by Dewitt Hogan, nor did it have any bearing on plaintiffs’ chattel mortgage. Therefore, plaintiffs were not damaged by the transfer.

The trial judge also correctly found that despite Heard’s failure to insert the minimum inventory figure in the July 2, 1979 act of sale, plaintiffs were not prevented from foreclosing, considering other language in the act of sale. Therefore, plaintiffs likewise failed to prove they were damaged by Heard’s omission.

On appeal plaintiffs allege the trial court erred in finding they did not suffer damages either as a result of the negligence and/or breach of the fiduciary relationship by Heard, or the transfer of realty to Dewitt Hogan, which they claim breached the act of subordination.

We have carefully examined the trial court’s finding regarding the alleged negligence on the part of defendant Heard in allowing the contract involved in this case to be executed with the blank for the minimum inventory figure not filled in, and we agree that plaintiffs have failed to establish that this defendant’s negligence caused them to suffer damage or the amount of that damage.

No satisfactory explanation for the blank was given. Regardless of the reason, we find that the standard pact de non alienan-do in the act which read, “The mortgagors hereby agree in solido not to sell, alienate, deteriorate, or encumber said mortgaged property to the prejudice of this mortgage”, provided plaintiffs protection from a serious depletion of the inventory.

In reaching that conclusion we found it necessary to do some research into the origin and nature of the pact de non alien-ando in our state (hereinafter sometimes referred to simply as the pact or pact de non).

As its name implies, the pact de non alienando was in its earliest form an agreement on the part of the mortgagor not to sell this mortgaged property to the prejudice of the creditor’s mortgage. Its main function and greatest advantage were to permit the creditor in effect to disregard a violation of the agreement and proceed to execute upon the property as security for the debt owed him, even though it was then in the hands of a party other than the original mortgagor. He could just ignore the transfer in his foreclosure procedure.

The pact de non has been a provision in mortgage instruments since before the enactment of the 1808 Civil Code and certainly is considered a “standard” provision in such instruments today.

A most comprehensive comment on the subject is found in XXI Tulane Review at page 238 — “The Pact de non Alienando in Louisiana.”

From this study we found that as early as 1823 the contention was made that as a procedural “tool” of the French or Spanish law, the pact had been abrogated by the enactment of the Civil Code of 1808.

This contention was soundly rejected by the Supreme Court in Nathan v. Lee, 2 Mart. (NS) 32 (La.1823), wherein the court found that rather than a procedural device of legislative creation the pact was contractual and judicial in its nature and origin and came from Spanish law still in effect. To the same effect see Donaldson v. Maurin, 1 La. 29 (1830) decided after enactment of the 1825 codes.

There seems to have been no serious deviation from that earliest pronouncement as to the contractual nature of the original pact.

Just how far the courts have gone in upholding this contractual obligation on the part of the mortgagor not to sell the property upon which he is in that instrument granting a mortgage we think is illustrated by the case of Avegno v. Schmidt & Ziegler, 35 La.Ann. 585 (1883), in which it was held that a confiscation by the United States of a tract of land upon which there existed a mortgage containing the pact de non would yield to a foreclosing creditor.

Just when the word “deteriorate” first came to be used commonly or regularly as a part of the pact we were not able to determine. What it did obviously was to enlarge the agreement. In addition to contracting not to sell the mortgaged property, the mortgagor agreed not to “deteriorate” it to the prejudice of the mortgage.

The best known interpretation and application by the Louisiana Supreme Court of the enlarged pact de non is found in Federal Land Bank of New Orleans v. Mulhern et al, 180 La. 627, 157 So. 370 (La.1934).

In the Mulhern case, in which three foreclosure suits were consolidated for trial, all mortgage payments were current but the bank was permitted to foreclose its mortgages because the mortgagors had granted oil and gas leases on the mortgaged property and production was had under those leases. The court held that this was a deterioration of the mortgaged property to the prejudice of the creditor.

Although the pact de non was earliest found used in connection with mortgages involving immovables, we find that the pact is recognized as a proper and valid provision in chattel mortgages. See Folse v. Dali, 197 La. 511, 2 So.2d 6 (La.1941); Liquid Carbonic Corp. v. Leger, 169 So. 170 (La.App. 1st Cir.1936).

We further note that R.S. 9:5363 gives creditors with chattel mortgages all the rights and remedies of creditors holding mortgages on immovable property.

We conclude from this that Norman Hogan, the mortgagor in our present case, agreed not to deteriorate the mortgaged property to the prejudice of that mortgage. Part of the mortgaged property was the inventory or the merchandise in the grocery store he had purchased from plaintiffs. The other part was the shelving and equipment in the store building, leased from the elder Hogan, a defendant herein.

■The act of sale and chattel mortgage allocated $81,950 of the $151,950 purchase price to inventory and $70,000 to shelving and equipment.

Naturally, in the normal operation of the business the merchandise would be sold and replaced constantly. This practice is recognized and provided for in the chattel mortgage law of Louisiana. R.S. 9:5351. It was covered in the paragraph immediately preceding the pact de non clause in the contract here under consideration.

This normal sell and restock cycle is not what plaintiff Harrelson became concerned with in August of 1981. He observed what appeared to him to be an abnormal decline in the total inventory to the point that he felt young Hogan might be jeopardizing the security plaintiffs held in the form of the chattel mortgage.

This is when he re-examined the contract, discovered the blank space meant to cover just this contingency when properly filled, and confronted defendant Heard with his concern.

Mr. Heard informed plaintiffs at that time (August of 1981) that despite the blank they had the right to foreclose if the stock was diminished, even though the note was current.

We are not called upon here to decide if in fact the inventory had been depleted to a point at which such action amounted to a deterioration of the mortgaged property to the prejudice of this mortgage, but only to determine if such a fact were properly established would it give plaintiffs the right to foreclose under the pact de non contained in the mortgage.

We find that such right did exist and to exercise it successfully plaintiffs would need only to establish by competent evidence that whatever depletion of inventory they were concerned about had in fact occurred and did in fact prejudice the mortgage.

We do not feel that it would be an easy matter to establish the prejudice by the depletion, but the mere fact that proof may be difficult does not preclude a party from seeking to exercise a remedy available to him. It might be much easier, for instance, if plaintiffs (in August of 1981) had found young Hogan had allowed half of the cash registers at the check-out counters to become inoperable, some of the refrigeration equipment to break down for want of proper maintenance, and some of the shelving to bend or fall from improper stocking or overloading. However, this was not plaintiffs’ complaint.

Whether plaintiffs elected not to avail themselves of the remedy due to their mistaken belief that Dewitt Hogan would not allow his son’s business to fail or their desire to continue to receive the monthly payment on the note, we are in no position to say. We do find that they have not established that the negligence of defendant Heard caused any damage that may have resulted from their taking no affirmative action for an entire year after learning of the omission.

The transfer of the undivided one-eighth interest in the shopping center from Norman to Dewitt Hogan was not a breach of the act of subordination executed by Dewitt Hogan. The sale of the undivided one-eighth interest was a sale of realty to Dewitt Hogan. In the act of subordination Dewitt Hogan agreed only to subordinate his lessor’s lien on the shelving, equipment and inventory (movables) in the supermarket to the chattel mortgage held by plaintiffs. The subordination was never intended to affect the real property occupied by the shopping center. Since the transfer was of an interest in real estate, the only possible damage plaintiffs could have suffered as a result thereof would be an ultimate diminution of assets to which they might turn if the chattels securing their note proved to be inadequate.

Even this possible damage has been minimized, since in the Norman Hogan bankruptcy proceeding, according to the trustee, suit was filed to recover the one-eighth interest in the shopping center because it was sold during the preferential period pri- or to bankruptcy. Assuming the one-eighth interest is recovered, it would be available to satisfy all creditors’ claims, including any plaintiffs might have.

We further hold that Heard did not breach his fiduciary obligation to plaintiffs by preparing the transfer of the one-eighth undivided interest from Norman to Dewitt Hogan. The matters involved were just not directly related.

For these reasons, the trial court judgment is affirmed at appellants’ cost.

      . We find that Civil Code Articles 3397 and 3399 may duplicate the remedy afforded creditors by the pact de non as far as sales of mortgaged property are concerned, but not deterioration of same.