Bruce v. Cheramie , 231 La. 881 ( 1956 )

McCALEB, Justice

(dissenting).

I am in agreement with the majority that the description contained in the 1918 deed “by depth of survey and patent” was sufficient to translate to P. C. Authement the property in dispute, which lies in the rear of the 7-arpent line. And, although I entertain some doubt as to the legal good faith of Authement in his purchase from his mother and falther, in view of the uninitialed change in the description of the depth of the land conveyed from “Seven (7) arpents more or less in depth” to “depth of survey and patent”, Authement’s explanatory testimony would seem sufficient to sustain the conclusion that he had no actual notice that his parents’ title did not extend beyond the 7-arpent line and, therefore, that plaintiffs have not overcome the presumption that he was a possessor in good faith.

Conversely, I cannot subscribe to the majority view that the 1924 deed from Authement to Bertoul Cheramie translated the property involved herein as I do not regard the clause “by the depth thereto Belonging and appertaining — ” as describing a title beyond the 7-arpent line or to the range line. It seems to me that these words clearly indicate the intention of the vendor to convey whatever area in depth to which he had title at the time of the transfer and signify that he did not wish to warrant title to any property that he did not legally own. For, if this were not his intention, it would have been appropriate for the act to provide the same depth “of survey and patent” that was contained in Authement’s acquisition or some other accurate description of the depth of the area. To say the least, a description of the depth of property conveyed as that “thereto Belonging and appertaining” is most indefinite and it is manifest that one purchasing under such a description is unable to determine from the face of the deed the extent of his acquisition.

That an adequate description of the land conveyed is essential to establish the ten-year acquisitive prescription is well setteld by the jurisprudence. Bendernagel v. Foret, 145 La. 115, 81 So. 869; Hunter v. Forrest, 195 La. 973, 197 So. 649; Pierce v. Hunter, 202 La. 900, 13 So.2d 259 (and authorities therein discussed) and Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225, 236. In the last cited case, it was observed: “ * * * plaintiffs are required to prove, in addition to good faith possession for the required time, that the deed under which they claim describes and indentifies 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.”

Obviously, when the depth of property is stated to be “thereto Belonging and appertaining” the purchaser cannot ascertain the area or the location of the land he is acquiring and must look to other acts to determine the extent of his title. And, when such a vague description necessitates investigation of other acts, it involves an examination of the title. And, if an examination of title is required, one cannot become a purchaser in good faith unless he pursues every lead and ferrets out all the facts to the end that he may not purchase until he has complete information before him. Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369, quoting with approval from Dinwiddie v. Cox, La.App., 9 So.2d 68. See also Richardson & Bass v. Board of Levee Commissioners, 226 La. 671, 77 So.2d 32.

In the case at bar, -a complete examination of the title would have readily shown that Authement did not own any property in depth beyond the 7-arpent line and, therefore, Mr. Cheramie could not rely on the statement contained in Authemerit’s acquisition deed that the property had a depth in accordance with the original survey and' patent.

I respectfully dissent.