Douglas v. Murphy , 218 La. 888 ( 1950 )

PONDER', Justice.

The plaintiffs brought suit against the defendants seeking to recover damages in the amount of $70,000.00 for timber cut and removed from a tract of land containing 160.85 acres situated in Union Parish.

The plaintiffs set forth their title to the land in their petition. The defendants, in their answer, aver that they are the owners of the land and recite their title to it. The defendants interposed a plea of prescription, ten years acquirendi causa. On trial of the case, the lower court sustained the plea of prescription, and dismissed the plaintiffs’ suit. The plaintiffs have appealed.

The land in this suit was granted to the State of Louisiana by the United States under the Swamp Land Act of March 2, 1849, 9 Stat. 352. Title to the land passed to the State when its selection of the land was approved by the Secretary of the Interior on May 6, 1852. The defendants trace their title to a patent issued by the United States to Jerry Jeremiah on January 30, 1883 by virtue of homestead entry No. 384, dated February 21, 1874. The defendants in their brief concede that their title deraigned from the Jeremiah patent cannot stand against the prior selection and approval by which the State acquired title. In other words, they concede that the land was the property of the State at the time the Jeremiah patent was issued by the United States and that the State’s title was paramount. They further concede that acquisitive prescription does not run against the State.

Henry M. Hyams purchased from the State on February 10, 1853, 404.63 acres of land in Sections 3 and 10, T. 14 N., R. 3 E. for which he received patent No. 11783 under certificate No. 23907. It developed that the State did not own the land. The Register of the Land Office was authorized by Act No. 104 of 1888 to indemnify the holder of patents which had been issued for lands which the State did not own by issuing lieu warrants to be located on land of the same class or character as the lands for which the patents were issued through error. Hyams died when the Act of 1888 was' enacted, at which time his children were all minors. The executor of his estate surrendered the patent erroneously issued for cancellation and applied in writing for warrants covering the same number of acres of land to be located on land of the same character as the land for which the patent was erroneously issued. The executor died before the warrants were issued and nothing further was done until the heirs of Hyams secured lieu warrants in the year 1917 for the patent surrendered by the executor. Warrant No. 170 was acquired by Mrs. Judith Hyams Douglas as one of the heirs of Hyams. She applied, on February 19, 1919, to the State Land Office for the location of the land in the NWy4 of Section 24, T. 23 N., R. 2 W. situated in Union Parish, containing 160.-85 acres. No action having been taken in the matter, Mrs. Douglas renewed her application, without waiving any of her rights, on February 3, 1939, and specially requested the Register of the Land Office to use warrant No. 170 in the location of the land involved in the suit. The Register of the Land Office rejected the application on March 8, 1939 advising Mrs. Douglas that the lands had been withdrawn from sale or entry by the Governor’s proclamation, dated March 20, 1917, as authorized by Act No. 38 of 1914, LSA-RS 41:98. Sometime after March 3, 1941, the Register of the- Land Office prepared, and the Governor signed, patent No. 61888 on May 28, 1941, reading in part as follows:

“Whereas Judith Hyams Douglas of the Parish of Orleans in the State of Louisiana located with Warrant No. 170 issued under the provisions of Act 104 of 1888, February 19, 1919, (See decision of the Supreme Court of Louisiana [State ex rel. Hyams’ Heirs v. Grace] reported in 173 La. 215 [136 So. 569] and reaffirmed by the Supreme Court on March 3, 1941 [197 La. 428, 1 So.2d 683]), North West Quarter of Section No. Twenty-Four (24) West in the North of Red River Land District, Parish of -Union containing One Hundred Sixty & 85/100 (160.85) acres according to the official plat of the survey of said lands in the State Land Office.”

Mrs. Douglas transferred an undivided one-half interest in the property to Alvin R. Albritton on June 17, 1942.

Mrs. Douglas was issued other warrants at the time that warrant No. 170 was issued. She made application to have the lands located under her warrants in 1919, ■which were rej'ected by the Register of the Land Office. After repeated applications and two law suits, she finally obtained patents under her warrants. In the case of State ex rel. Hyams’ Heirs v. Grace, 173 La. 215, 136 So. 569, the Register of ■the Land Office took the position that Act No. 104 of 1888 had been superseded and repealed by later acts of the Legislature, after having been so advised by the Attorney General. In the case of State ex rel. Hyams’ Heirs v. Grace, 197 La. 428, 1 So.2d 683, the Register of the Land Office resisted the application for the location of the warrants on the advice of the Attorney General. During the month of February 1939, the Register of the Land Office again rejected Mrs. Douglas’ renewed application on the ground that the lands had been withdrawn from sale or entry by the Governor’s application, dated March 20, 1917, as authorized by Act No. 38 of 1914. In this latter suit the plaintiff sought and obtained an order to compel the issuance of a patent on 280 acres of land. It was only after this suit had become final, on March 3, 1941, that the patent was issued to the property involved in this suit on May 28, 1941.

The appellants contend that title did not pass from the State to Mrs. Douglas until issuance of the patent on May 28, 1941. While, on the other hand, the defendants contend that acquisitive prescription will run against one who has a vested right to property the same as if a patent had been issued. They take the position that prescription began to run against Mrs. Douglas from the date that she first made application to locate the warrant on February 19, 1919.

It appears that the trial judge agreed with the position of the defendants that Mrs. Douglas’ title became complete on February 19, 1919 when she made her first application to locate the warrant and that the application operated as a severance of the land from the public domain. He was also of the opinion that prescription began to run against her in favor of the defendants under an adverse chain of title from that date. He based his conclusions on the following statements made in the following cases:

“On the contrary we think a mere reading of the opinion of our learned brother will disclose that the idea intended to be conveyed by him was that when the plaintiff applied for the patent in 1919 and renewed the same in 1939, her right thereto became perfect and complete and she thereby acquired a vested right to the property the same as'if the patent had issued, entitling her to all revenues derived therefrom. The fact that the record title was in the state did not authorize the state to alienate the same to the prejudice of plaintiff. She could not be charged with the arbitrary refusal of the Registrar of the State Land Office to prepare the patent for the Governor’s signature, the functions of both of these officials in connection therewith being ministerial.” Douglas v. State, 208 La. 650, 23 So.2d 279, 283.

‘‘When the citizen has done everything which the law says he shall do, has paid into the state treasury all that he is required to pay, * * * the state could neither in good conscience nor under the Constitution declare such property a part of the public domain and deprive the entry-man of his possession and title.” State ex rel. Hyams’ Heirs v. Grace, 173 La. 215, 136 So. 569, 571.

In addition to the statements made in these cases the defendants rely on the statements made in the cases of Rutledge v. Harrell, 6 La.App. 172; Gay v. Ellis, 33 La.Ann. 249; Standard Oil Company of Louisiana v. Allison, 196 La. 838, 200 So. 273 and Breaux v. Lefort, 209 La. 506, 24 So.2d 879.

In the case of State ex rel. Hyams’ Heirs v. Grace, supra, the plaintiff brought mandamus proceedings against the Register of the Land Office to compel that official to issue a patent under a companion lieu warrant. In the case of Douglas v. State, supra, the plaintiff brought suit to recover a cash bonus received from the State from a mineral lease executed by the Mineral Board. What was said in both of those cases applied solely to the rights between the parties. The Register of the Land Office had consistently rejected the applications to locate the lieu warrants and the plaintiffs had to resort to legal action to 'obtain title to the property and. force-the issuance of patents. From a reading of the other cases above referred to and similar cases cited by the defendants, we find that they are not pertinent for the reason that they did not involve the rejection of an application to locate lands under lieu warrants. In the cited cases the claimant held, certificates of purchase or official receipts evidencing the segregation of the lands from the public domain, except in the Harrell case where the location of the land under the warrant was actually made. In neither of these cases did the State reject or resist the applications.

In our review of the cases cited by the litigants in their briefs and a review of the jurisprudence of this State, we have been unable to find a single holding to the effect that a rejected application to locate land under a warrant would operate as a severance of the land from the public domain and permit prescription to run in favor of a third person against the claimant.

It is true that the rights between contracting parties relate back to the date of an agreement as in the case of an agreement to sell. This is a fiction of law but it does not have the effect of vesting ownership in the party who had agreed to purchase. It merely means that the rights of the parties, upon compliance, revert to the date of the contract. The compliance with the conditions only renders the contract executory and establishes the rights and liabilities of the parties as of the date of the agreement. Ober v. Williams, 213 La. 568, 35 So.2d 219. This same reasoning is applicable in this case, especially since the State would not accept or recognize the application until forced to do so by a decree of court.

Irrespective of what rights existed between the parties, the fact remains that the consent of the State was not obtained until after a culmination of the litigation and it was only then that the State agreed to is- ' sue the patent. Title to the property could not vest in the applicant prior to that time. Such being the case, the plea of prescription is not well founded because ten years had not elapsed from that time to the filing of this suit.

The trial judge in his original opinion gave the plaintiffs judgment against the defendant Murphy in the sum of $3,781.25 as'damages for timber removed from the property, less a credit of $412.50 for the value of improvements placed on the land by Murphy. In his original judgment he sustained the plea of prescription insofar as the widow and heirs of Hardy were concerned but refused to sustain the plea as to Murphy because he found Murphy to be in legal bad faith. On rehearing he set- aside the judgment and sustained the plea of prescription and decreed Murphy to be in good faith.

The findings of fact by the trial court was to the effect that 756,250 ft. of timber was removed from the land and that the timber was worth $10.00 per 1000 ft. which amounted to a value of $7,562.50. The trial judge was of the opinion that the improvements made and taxes paid on the land amounted to the value of $925.00. From our examination of the record, we find that the conclusions of the trial judge in this respect are correct and that the plaintiffs are entitled to judgment accordingly.

The plaintiffs contend that the defendant Murphy was in bad faith and that they should therefor recover from him $13,234.38, less a credit of $150.00 with 5% interest from judicial demand until paid. The contention is based on the fact that Murphy had examined the records and knew that the State’s title antedated his title and that he was in bad faith because he did not further investigate the public records and ascertain the true situation. The lower court arrived at its conclusions, on rehearing, that Murphy was in good faith under the holding in the case of New Orleans Auction Exchange v. Vincent, 168 La. 802, 123 So. 331 and in the case of Delouche v. Rosenthal, 143 La. 581, 78 So. 970. We have examined these authorities and agree with the conclusion of the trial court in this respect because the defendants and their ancestors’ deed was valid in form and contained no apparent defect on its face.

In their supplemental brief the defendants are re-urging a plea of estoppel based on allegations made by one of the plaintiffs in the suit of Douglas v. State, supra, to the effect that the plaintiffs’ title became complete at the time of the filing of the application to. locate the warrant. The lower court rejected the plea on the grounds that the State was not made a party to this suit and that the defendants had not established the facts upon which the plea was based. We have examined the petition in the case of Douglas v. State, supra, and find that all the allegations therein were made with the view of establishing the rights between the parties to that suit. This Court found, as a matter of fact, that the rights of the plaintiffs related back to the date of the agreement. The allegations made in the petition were merely to this effect. Under the circumstances the plea was properly denied.

For the reasons assigned, the judgment of the lower court is reversed and set aside. There is now judgment in favor of the plaintiffs and against the defendants in the sum of $3,781.25, less a credit of $925.00, with 5% interest from judicial demand until paid.