Opinion
No. 38493.
March 22, 1948. On Rehearing November 8, 1948.
Appeal from Fourth Judicial District Court, Parish of Ouachita; D. I. Garrett, Judge.
Suit by Nona E. Martin and another against Joseph R. Fuller and others to remove a cloud from title which suit was converted into a petitory action. From the judgment, the plaintiffs appeal.
Judgment amended and as amended affirmed.
McHenry, Lamkin Snellings, of Monroe, for plaintiffs-appellants.
Hudson, Potts, Bernstein Davenport, of Monroe, for defendants-appellees.
HAWTHORNE, J., dissenting.
Jack Allen leased his monument business in the City of Monroe to Nona E. Martin and Emma Lee Short for a period of one year, beginning January 1st and ending December 31st, 1942, at a monthly rental of $75. The property leased consisted of Lot 9 and the west ten feet of Lot 8 in Square 76 of Breard's Addition to the city, with improvements, appurtenances and certain movable property located thereon. The lease was executed on November 24, 1941 and contained an agreement giving the lessees the option to purchase the leased property together with Lot 4 in the same square for a consideration of $8,000 at the end of any month within the term of the lease. It is set out in the contract that a deed to the property was contemporaneously executed to the lessees in pursuance to the agreement which was to be placed in escrow with the trust officer of the Canal Savings Bank and Trust Company, to be delivered to the lessees upon their compliance with the optional agreement. The deed was executed in compliance with the agreement and placed in escrow with the trust officer.
On May 18, 1921, a 13 foot strip of land running through Square 76, between Lots 4 and 9, was dedicated as an alleyway. This dedication was revoked by an ordinance of the city, adopted October 30, 1941. The revocation of the dedication was not filed in the conveyance records until March 9, 1942. It was not of record at the time that Allen leased the property to Martin and Short and the option to buy the lots was given.
On June 11, 1942, Jack Allen sold to Louis Milner and J. R. Fuller Lots 4 and 9 and the west 10 feet of Lot 8, being the same lots he had previously contracted to sell to Martin and Short. In this deed that portion of the 13 foot alleyway lying between the lots was particularly described and conveyed to Milner and Fuller. The vendor also assigned in this deed all of his rights and interest in his contract with Martin and Short. The consideration for the sale was $6,185, cash.
Some time thereafter, Martin and Short exercised their option to purchase the property by paying the consideration to Milner and Fuller, who had acquired all of Allen's right in the contract, and secured the deed that had been previously placed in escrow, which they filed in the Conveyance Records of Ouachita Parish.
The plaintiffs herein, Martin and Short, brought the present proceedings against the defendants, Fuller and Milner, seeking to remove the cloud from their title, the purported transfer of the portion of the alleyway abutting their lots. The suit was converted into a petitory action and upon trial the lower court gave judgment recognizing the plaintiffs to be the owners of the lots and the defendants to be the owners of the portion of the alleyway lying between the lots. The plaintiffs have appealed.
The sole dispute is over the ownership of that portion of the alleyway lying between the aforementioned lots. The appellants take the position that the deed executed by Allen, conveying the lots to them, impliedly transferred to them whatever interest that Allen had in the alleyway. While, on the other hand, the appellees take the position that the appellants acquired the lots only and that they should be decreed the owners of the portion of the alleyway lying between the lots because it was specifically transferred to them by Allen. They contend that when they acquired the portion of the alleyway it was the property of Allen and not that of the plaintiffs.
We have been cited a number of common law authorities that render us no aid because the dedication and its revocation are governed by statutes. The dedication was made in pursuance to the provisions of Act 134 of 1896 and the revocation is governed by Section 2 of Act 151 of 1910 and Section 2 of Act 382 of 1938. Under these latter statutes, the soil embraced in an alleyway up to the center line reverts to the then present owners of the contiguous lands when a dedication is revoked.
When Allen contracted to sell the lots to the plaintiffs, the revocation of the dedication had not been recorded in the conveyance records. The plaintiffs had a right to rely on the records as they stood at the time the contract was entered into. Ever since the opinion was handed down in the case of McDuffie v. Walker, 125 La. 152, 51 So. 100, this Court has consistently held that a person acquiring real estate has a right to rely upon the conveyance records and that any notice or knowledge dehors these records is not equivalent to registry.
At the time that Allen contracted to sell the property to the plaintiffs the conveyance records reflected that an alleyway existed between these lots. Streets and alleyways are indispensable to the enjoyment of urban property. The conveyance of property abutting streets and alleyways carries with it the indispensable use and enjoyment of the streets and alleyways. The transfer of the lots abutting the alleyway impliedly gave whatever was necessary to the enjoyment of the lots. In the case of Richard v. City of New Orleans, 195 La. 898, 197 So. 594, 595, we made the following pronouncement: "A sale of land abutting on a street conveys a moiety of the street, unless a contrary intention is clearly indicated." The appellees challenge this pronouncement and contend that it is purely argumentative and based on a theory. A careful consideration reveals that the pronouncement is sound and founded on law and reason. The reason the statutes provide that the soil embraced in an alleyway up to the center line, upon revocation of the dedication, reverts to the then present owners of the land contiguous thereto is because this portion of the alleyway is indispensable to the full enjoyment of the contiguous property. When the plaintiffs contracted to purchase the property they had a right to rely on the conveyance records, as they then stood, showing the lots were abutting on an alleyway whose benefits they would receive. They had a right to rely on the fact that the alleyway afforded them access from one piece of the property to the other. In transferring the lots, the grantor impliedly transferred all that was necessary for the full enjoyment of the property, unless a contrary intention was indicated.
When the defendants acquired the property, subject to the plaintiffs' contract, and all the interest that Allen had in the contract, they not only knew that the revocation was not of record at the time plaintiffs' contract was executed, but they assumed all the obligations flowing from that contract.
As a general rule, parol or extrinsic evidence cannot be resorted to in interpreting a deed where there is no ambiguity in the description of the property. But these rules do not apply where the transactions are so interwoven and tied together as in the present case. All of the provisions in these transactions may be considered in arriving at the true intention of the parties and what property Allen actually conveyed to the plaintiffs. It is apparent that Allen intended to transfer to the plaintiffs all the property he owned in Square 76. In his contract with the plaintiffs he transferred the monument business to the plaintiffs and agreed not to engage in competition with them. It is equally apparent that the plaintiffs were acquiring the business with all the property and rights that Allen had that were necessary to the use and full enjoyment of the business.
The appellees lay stress on the fact that the plaintiffs, having knowledge that the defendants had a deed purporting to convey them the portion of the alleyway, did not complain at the failure of the deed, they received when they exercised their option, to contain a specific conveyance of this portion of the alleyway. If the deed had been executed at the time the option was exercised, the plaintiffs' right to the portion of the alleyway may have been subject to some question, but the deed was executed, prior to the time the revocation was placed of record, and placed in escrow long before the appellees acquired any interest from Allen. The plaintiffs had contracted for the delivery of the deed, upon their compliance with the option, as previously executed.
For the reasons assigned, the judgment of the lower court is amended by decreeing the portion of the alleyway in dispute to be the property of the plaintiffs. As thus amended, the judgment is affirmed. All costs to be paid by the appellees.
McCALEB, J., concurs.
HAWTHORNE, J., dissents and assigns written reasons.
On Rehearing.
The plaintiffs, Nona E. Martin and Emma Lee Short, claiming that certain property acquired by them from Jack Allen, hereafter described, was being slandered by the defendants, Joseph R. Fuller, Mrs. Mary Andrews Milner and Louis Milner, Jr. (the latter two being the surviving widow and sole heir of Louis Milner), instituted proceedings against them for the purpose of having this cloud on their title removed. The defendants, admitting in their answer that the plaintiffs own the property described in their deed from Allen, asserted their ownership of a 13-foot strip traversing the same that had been formerly dedicated as an alleyway. As to this portion of the property, they converted the suit into a petitory action. The lower court, in its judgment, in addition to recognizing the plaintiffs to be the owners of the property admittedly owned by them, decreed the defendants to be the owners of this alleyway. The plaintiffs are appealing.
The record shows that the plaintiffs, on November 24, 1941, entered into a contract with Jack Allen wherein they leased for one year, beginning on January 1, 1942, the monument business that had been conducted by Allen on Lots 4 and 9 and the West 10 feet of Lot 8 in Square 76 of the D. A. Breard, Sr. Addition to the City of Monore, such property being described in the lease to be "as per plat of record in the Clerk's Office, Ouachita Parish, Louisiana." The lease was duly recorded the following day. Therein the plaintiffs agreed to pay Allen a monthly rental of $75 and were granted the option, at the end of any lease month during its life, of purchasing the business and the property outright for the sum of $8,000. Contemporaneously, a deed to the realty, "together with the improvements and appurtenances thereunto belonging," was executed by Allen in favor of the lessees and was placed in escrow with the trust officer of the Central Savings Bank Trust Company of Monroe, to be delivered to the lessees upon their compliance with the provisions of the option agreement.
Reference to the plat mentioned in both the lease and the deed, which is recorded in Plat Book No. 2 at page 44, discloses that the alleyway in dispute was dedicated to the public on May 18, 1921, along with other streets and roadways in the addition created by D. A. Breard, Sr., the then owner; that it is thirteen feet wide and runs through the square between lots 4 and 9. It appears that the City of Monroe, by ordinance adopted on October 30, 1941, but not recorded until March 9, 1942, officially revoked the dedication of this alleyway on the ground that it was not used by the public at large and had, as an alley, become abandoned.
Under a contract executed by Allen on June 11, 1942, the same property previously sold to the plaintiffs was conveyed to Joseph Fuller and Louis Milner, together with all of Allen's "rights, title and interest in, under and to" the contract executed by him in favor of the plaintiffs on November 24, 1941, including his right to collect the monthly rentals from the plaintiffs and to receive the purchase price of $8,000 in the event they sought to exercise the option agreement. This agreement was subject to the contract previously executed and with full recognition of the rights of the plaintiffs thereunder. In this deed, Lots 4 and 9 and the West 10 feet of Lot 8 are conveyed under the identical description used in conveying the property to the plaintiffs on November 24, 1941, with the addition that the 13-foot strip is in this contract particularly and specifically described. The consideration Fuller and Milner paid Allen for this deed was $6,185.
On or about December 30 following, the plaintiffs exercised their option agreement and purchased the property, paying the consideration therefor to the defendants. They continued to operate the business on the property, using all of the land indiscriminately, until, in 1946, objection was made to their title by a prospective purchaser. Upon the failure of the defendants to execute a quitclaim deed, they instituted this suit.
Unlike the rule at common law, it is the public policy of this state that in order to affect third parties, all transactions touching upon or affecting title to real or immovable property must be recorded. As stated in the case of Baker v. Atkins, 107 La. 490, 32 So. 69, 70, "there can be no actual owner of immovable property, so far as third persons are concerned, other than the owner of record". See, also, McDuffie v. Walker, 125 La. 152, 51 So. 100; Soniat v. Whitmer, 141 La. 235, 74 So. 916; Loranger v. Citizens' Nat. Bank of Hammond, 162 La. 1054, 111 So. 418; Dalbey v. Continental Supply Co., 165 La. 636, 115 So. 807; State ex rel. Hebert v. Recorder of Mortgages, 175 La. 94, 143 So. 15.
Referring to the decision in the case of McDuffie v. Walker, this court, in the Soniat case, [ 141 La. 235, 74 So. 917] observed that since that time, "the once vexatious question of whether the purchaser of real estate can be affected by unrecorded claims against the property, even though at the time of the purchase he had actual knowledge of them, has been settled in the negative — let us hope forever."
It is the contention of the plaintiffs that under this doctrine the revocation of the dedication of this alleyway could not affect their rights since such revocation only became effective as to them on the date of its recordation, March 9, 1942; in the alternative, that if we hold this revocation did become effective upon its adoption on October 30, 1941, then that they acquired title to it by virtue of their acquisition of the property abutting thereon from Allen, since there is nothing that would indicate otherwise in their deed.
On the other hand, it is the contention of the defendants that under the express provisions of Act 382 of 1938, when the municipal authorities of Monroe revoked the dedication of the alleyway in question "all of the soil covered by and embraced in such roads, streets or alleyways up to the center line thereof" reverted to the present owner of the land contiguous thereto, and that such revocation became effective immediately as to all parties since the law of registry does not apply to municipal ordinances, it being their argument that the only instruments that need be recorded to affect third persons are those specifically enumerated in the statutes of this state. Consequently, that when they acquired the strip of land formerly embraced in this alleyway by particular description, they were entitled to rely on the public records and these failed to show Allen had divested himself of this property.
The legislature, by its adoption of Act 382 of 1938 (as well as the prior act, Act 151 of 1910), vesting the police juries and the municipal corporations of this state with the power to, in their discretion, "revoke and set aside the dedication of all roads, streets and alleyways laid out and dedicated to public use within their respective limits, when such roads, streets and alleyways have been abandoned or are no longer needed for public purposes" (Section 1), and providing that "all of the soil covered by and embraced in such roads, streets or alleyways up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto" (Section 2), did not intend to, and did not thereby, abrogate the law of this state with respect to registry.
The above quoted language of Section 2 cannot be said to be free from ambiguity. Clearly the property in question here could not revert to the owner of the land contiguous thereto at the time of the revocation (Jack Allen) since he was not a former owner and had no reversionary right thereto. We must, therefore, determine just what the legislature intended in providing that title to such publicly dedicated passageways shall, when revoked, "revert to the then present owner or owners of the land contiguous thereto."
It is our opinion that the lawmakers intended such property should again become part and parcel of the property from which it had been originally carved and that the ownership thereof would then become vested in accordance with the ownership of the property contiguous thereto at the time of the revocation.
D. A. Breard, Sr., by recording in the official records of Ouachita Parish the plat of the sub-division of the property owned by him showing the roads, streets, and alleyways he was dedicating to the public not only divested himself of his title to these roads, streets, and alleyways, but, in effect, conveyed them to the City of Monroe for the use and benefit of the public. It is true the recordation of this plat is neither a sale nor a contract with respect to the property in the true sense of the word; nor is the revocation of the dedication a sale or contract. Nevertheless, both of these transactions just as effectively transfer title to the property as if the same had been conveyed by a contract of sale, whether executed by a notarial act or an act under private signature.
It is our opinion that until the revocation of the dedication of these roads, streets, and alleyways under the provisions of Acts 151 of 1910 and 382 of 1938 is duly recorded as required by law, it cannot affect the rights of third parties. Clearly, therefore, when the plaintiffs purchased the lots described in their deed in accordance with the plat therein referred to showing that the property was traversed by the alleyway in question, they had the right to assume that until the contrary appeared on the public records, this alleyway was still dedicated to public use.
We therefore conclude that title to this alleyway vested in the plaintiffs on March 9, 1942, when the dedication was officially recorded, since they were the owners of record of the property contiguous thereto at that time.
For the reasons assigned, our original decree is reinstated and, accordingly, the judgment of the lower court is amended by decreeing the portion of the alleyway in dispute to be the property of the plaintiffs and, as thus amended, the judgment is affirmed. All costs are to be paid by the appellees.
HAWTHORNE, J., adheres to his previous dissenting opinion.
O'NIELL, C. J., does not take part.
This suit involves the title to a parcel of land which formerly was a 13-foot alleyway belonging to the City of Monroe. The alley ran east and west through Square 76 of D. A. Breard, Sr.'s Addition to the City of Monroe, Louisiana, and had been dedicated as such by plat filed May 18, 1921.
Jack Allen, the owner of Lots 4 and 9 and the western 10 feet of Lot 8 of Square 76, which lots were divided by the alleyway, Lots 9 and 8 being north thereof and Lot 4 south, petitioned the city in writing to revoke and set aside the dedication of this alleyway. The city, pursuant to the authority given by Act 382 of 1938, granted the petition by adopting an ordinance, which, after publication, went into effect on November 10, 1941. (See Act 207 of 1912, Section 18 [Dart's Revised Statutes, Section 5469].) As soon as this ordinance became effective, on November 10, 1941, Jack Allen became the owner of the property here in dispute, under the plain terms of Section 2 of Act 382 of 1938, which provides that, upon the revocation of a dedication of any street, alley, etc., all the soil covered by, and embraced in, such street, alley, etc., up to the center line thereof shall revert to the then present owner or owners of the land contiguous thereto.
After title to the parcel or tract of land which had formerly been an alleyway became vested in Allen, he executed a lease in favor of plaintiffs on November 24, 1941, covering Lot 9 and the west 10 feet of Lot 8, in which lease contract there was an option to purchase the premises described therein and Lot 4 for $8,000 at any time during the life of the lease. Contemporaneously with this contract a deed was executed from Allen to plaintiffs covering the property, in which it was described as "Lots 4 and 9, and the west 10 feet of Lot 8 of Square 76 of D. A. Breard, Sr.'s Addition to the City of Monroe, as per plat * * *". This deed, which contained no description of the property in dispute, was placed in escrow in a bank, to be removed upon compliance by plaintiffs with the terms of the option.
On June 11, 1942, Jack Allen conveyed to the defendants in this case all of the above described lots, including all of vendor's right, title, and interest in and to the lease and option contract previously granted to plaintiffs. In addition to specifically describing the lots by number and the square in which they were situated, this deed accurately and fully described the property lying between the two lots, which was formerly an alleyway, and to which Jack Allen had title by virtue of the revocation by the city of the dedication.
On December 30, 1942, plaintiffs exercised their option and withdrew from the bank the deed from Jack Allen to them.
Plaintiffs claim title to the land here in dispute by virtue of the deed to them dated November 24, 1941, which they removed from the bank on December 30, 1942, when they exercised their option to purchase, even though it did not specifically describe the property in dispute. Defendants herein claim title by virtue of their deed dated June 11, 1942, which did specifically describe the property in question.
The ordinance revoking the dedication was not placed of record until March 9, 1942, after the execution of the lease containing the option which granted to plaintiffs the right to purchase the lots abutting the alley.
In my opinion, on November 10, 1941, the date on which the ordinance revoking the dedication went into effect, Jack Allen, the then owner of the lots, became vested with title to the property in controversy by operation of law (Act 382 of 1938), and his subsequent sale in which this property was not specifically described did not convey title to the plaintiffs, named as vendees therein; for, under the plain provisions of Articles 2275 and 2440 of the Revised Civil Code of this state, all sales of immovable property must be in writing.
In his subsequent sale on June 11, 1942, the property was accurately and completely described, and for this reason, if for no other, I am of the opinion that title to the alleyway passed to the defendants, the vendees named in this act of sale.
The majority opinion lays great stress on the fact that the revocation of the dedication was not recorded until after the date of plaintiffs' contract, and concludes that for this reason plaintiffs had the right to rely on the records as they stood at the time they entered into the contract. If the law of registry is applicable, I think that its application in this case would be favorable to the cause of defendants rather than to that of plaintiffs, for the reason that after the revocation defendants, too, had the right to rely on the faith of the public records, which failed to disclose that the property formerly comprising the alleyway was included in plaintiffs' contract, and defendants had every right to take title to this property by having the description thereof incorporated in their deed.
The effect of the majority opinion is to hold that, upon the revocation of the dedication of an alley, the property which comprised the alley becomes and forms parts of the abutting lots. In other words, under this holding, an act of sale in whch only Lot 8, for instance, is described conveys title not only to all the property comprising Lot 8 as shown by plat but also to the land formerly comprising the alleyway up to the center line thereof. There is no authority for this conclusion within the act itself. It does not provide that the soil formerly comprising an alleyway becomes, upon revocation of a dedication, parts of the contiguous lots. The only portion of the act which is concerned with title to dedicated streets and public ways, the dedication of which has been revoked, provides only that the soil covered by, and embraced in, such street or alley up to the center line thereof, upon such revocation, shall revert to the then present owner or owners of the land contiguous thereto.
I respectfully dissent.