Williams Cypress Co. v. Dugas ( 1927 )

LECHE, J.

Plaintiff claims the ownership of certain timber and caused it to be sequestered. The timber is situated on lands belonging to the widow and heirs of Louis Gros, who, believing themselves to be owners thereof, sold it to the defendants on April 6, 1926. Defendants moved to dismiss the sequestration on the general ground that plaintiff had failed to comply with Article 276 of the Code of Practice. Plaintiff had furnished a bond to obtain the writ of sequestration, but failed to write in the body of the bond, the amount thereof, viz: One thousand dollars, and the name of the surety, Emile Sundberry. The motion to dissolve is aimed at these omissions.

Under Act 112, p. 241, of 1916, bonds in judicial proceedings, including this class of bonds, provides the manner in which errors, inaccuracies and omissions may be corrected. According to the terms of the Act, it appears that plaintiff could have corrected the omission in the bond at any time before judgment, provided that if defendants had, under Section 3 of the Act, caused a notice to be served upon plaintiff through the proper officer, claiming insufficiency of the bond in form of substance, the plaintiff would then only have had two legal days tq make the correction or furnish a new bond.

More than two days elapsed before the correction was made in this case, and the question then arises whether the motion to dissolve, service of which was accepted September 2, 1926, is a sufficient compliance with the notice required by the Act of 1916.

The general allegation that plaintiff had failed to comply with Article 276, C. P., is not equivalent to a notice that plaintiff had failed to furnish a sufficient or proper bond. (Succession of Theriot, 114 La. 612; 38 South. 471.) Plaintiff did correct or furnish a new and proper bond before judgment. It was not, according to the terms of the statute, required to furnish such new bond within two days of the filing of the motion to dismiss, because that motion did not specifically advise it of the defect in the bond and thereby give it the opportunity to make the correction. The interlocutory judgment dissolving the sequestration upon that ground, is erroneous; the motion should have been overruled, and that judgment is therefore reversed.

On the merits of plaintiff’s demand, it appears that plaintiff’s author in title, and J. O. Delaune were, by a judgment of the District Court for the Parish of Assumption Where the property is situated, recognized, the former as owner of all the trees, with the exception of ten standing cypress trees, situated on the W. half of lot 3, in Sec. 25, T. 14, S. R. 13 E., and the latter, J. O. Delaune, as owner of the land, together with all the buildings and improvements and ten standing cypress trees thereon. The judgment was rendered December 10, 1900, or previous thereto.

Oh March 1, 1901, Delaune sold the land to Barilleaux and in that sale the trees are excepted. Barilleaux in two acts of sale, of date October 5, 1903, and January 13, 1906, sold the same land to Louis Gros. In neither of these sales was there any exception or reservation made of the trees. Louis Gros subsequently died and his legal heirs, on April 6, 1926, sold all the cypress, túpelo and sweet gum trees on the land to the defendants.

Shortly after acquiring this title, the defendants began to fell and haul the trees; plaintiff then filed the present suit and coupled therewith a writ of sequestration.

The main defense is the plea of precription of ten years.

The property in contest in the case consists of trees. These trees were mobilized by the judgment of the District Court rendered in 1900, for that judgment recognized the ownership of the land in one person and the ownership of the trees in another person. The Act No. 188, p. 420, of 1904, did not change the status of these trees, for it provides that “standing timber shall remain an immovable * * * even when separated in ownership from the land on which it stands * * * .” The word “remain” makes it clear that where timber had previously been mobilized, it could not remain an immovable, because at the time the Act was adopted, it was not an immovable. It could not remain in a situation which it did not previously occupy. The terms of the Act and the previous jurisprudence both show that before the Act of 1904, where the ownership of the standing timber and of the land upon which it was situated, was in different persons, the standing timber was a movable. The language of the statute clearly applies in futuro and is not retrospective.

If the trees in this case are movables, then registry' of the judgment of 1900, so far as that judgment decreed the title of the trees to be in plaintiff, could not serve as notice to innocent purchasers. The purchaser of a movable is not bound to look up the conveyance records to inquire into the title of his vendor. So that registry of plaintiff’s title to the trees in the Conveyance records of Assumption was in no manner binding upon third persons.

The evidence shows that as soon as Louis Gros purchased the land upon which the trees were standing in 1903 and 1906, he went into possession both of the land and the trees; that he cut some trees, sold others on several occasions, and that he never suspected that any one else claimed title thereto. There is no evidence that plaintiff ever took actual corporeal possession of these trees, or ■ ever exercised any act manifesting its control over or ownership of the trees.

The possession of plaintiff was the civil possession that flowed from the Court decree rendered in 1900, while the possession of Louis Gros was actual and corporeal from the year 1906 to the year 1926, when his heirs sold to the defendants. During these twenty years, Louis Gros as lawful owner of the land under a title which did not except the trees, and which presumably included them as an accessory to the land to which they were attached, acquired an absolute title thereto both under the prescription of three years, C. C. 3506, and the prescription of ten years, C. C. 3509 As owners of these trees under a prescriptive title, the heirs of Louis Gros made a valid and sufficient title to the defendants. Our learned brother of the District Court so fpund; his judgment is correct and should be affirmed and for the reasons stated it is so ordered.