Opinion
2018 CA 1154
04-23-2019
RUDOLPH GUITREAU v. CLERK OF COURT FOR LIVINGSTON
Charles V. Genco D. Mark Valentine Amite, Louisiana ATTORNEYS FOR APPELLANT PLAINTIFF—Rudolph R. Guitreau Markus E. Gerdes Eugene B. Gerdes, III Hammond, Louisiana ATTORNEYS FOR APPELLEES DEFENDANTS—Ben E. Guitreau and Wanda D. Guitreau Conrad Meyer, IV Metairie, Louisiana ATTORNEY FOR APPELLEE INTERVENOR—Wells Fargo Bank, N.A.
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-First Judicial District Court In and for the Parish of Livingston • State of Louisiana
Docket Number 139554 • Division C The Honorable Robert H. Morrison, III, Judge Presiding Charles V. Genco
D. Mark Valentine
Amite, Louisiana ATTORNEYS FOR APPELLANT
PLAINTIFF—Rudolph R.
Guitreau Markus E. Gerdes
Eugene B. Gerdes, III
Hammond, Louisiana ATTORNEYS FOR APPELLEES
DEFENDANTS—Ben E. Guitreau
and Wanda D. Guitreau Conrad Meyer, IV
Metairie, Louisiana ATTORNEY FOR APPELLEE
INTERVENOR—Wells Fargo
Bank, N.A. BEFORE: WELCH, CHUTZ, AND LANIER, JJ. WELCH, J.
The plaintiff/appellant, Rudolph R. Guitreau, appeals a portion of the trial court's judgment decreeing that the defendant/appellee, his brother Ben E. Guitreau, acquired a house and 0.38 acres of immovable property by ten-year acquisitive prescription. For the following reasons, we reverse and render.
FACTS AND PROCEDURAL HISTORY
This litigation originated as a mandamus action that Rudolph filed against the Clerk of Court of Livingston Parish to order the cancellation of a mortgage that Ben and his wife, Wanda D. Guitreau, had placed upon 0.38 acres of property (municipal address 26344 South Frost Road, Livingston, Louisiana 70754) to which Rudolph claimed ownership. Subsequently, the Clerk was dismissed, and Wells Fargo Bank, N.A. (Ben and Wanda's mortgagee) intervened in the proceedings. Rudolph filed an amended petition for petitory action, naming Ben and Wanda as defendants. The only issue in this case is the ownership of the house and the 0.38 acres.
The facts were established at trial. On October 13, 1993, Rudolph acquired ownership of 1.28 acres in Livingston Parish through an act of donation executed by his grandmother, Deedie Eugenia Ratcliff Watts. The 1.28 acres encompasses Lots 1, 2, 18, and the West ½ of Lot 17 of Block D of the Town of Frost in Livingston Parish, according to a 1953 survey by C.M. Moore, which is referenced in the deed's property description.
All references hereinafter refer to recordings in the conveyance, mortgage, and plat books of Livingston, Parish, State of Louisiana. See COB 634, Page 188 (recorded February 25, 1994).
The lots in Block D are 100 by 125 foot lots.
See COB 74, Page 117 (recorded March 4, 1953).
Rudolph also acquired ownership of Lots 2, 3, and 4 of Block D. See COB 272, Page 45 (recorded January 5, 1979) and COB 545, Page 270 (recorded May 10, 1989) (as corrected by COB 738, Page 222 (recorded February 9, 1999)).
Thereafter, on October 25, 1994 and July 14, 2011, Ben acquired 0.38 acres in Livingston Parish through acts of donation executed by his mother, Elvenia Watts Guitreau. The 0.38 acres is unplottable based on the property description contained in the deeds. According to the C.M. Moore survey, the 0.38 acres encompasses Lot 18 and the West ½ of Lot 17 of Block D of the Town of Frost in Livingston Parish, which overlaps with the 1.28 acres owned by Rudolph. However, an August 8, 1998 survey by James R. Wheat that Ben commissioned in conjunction with a mortgage Ben and Wanda placed on the property shows the 0.38 acres as a 100 by 165 foot lot located in Lot 18 of Block C of the Town of Frost in Livingston Parish, which is north of Block D, where Rudolph's 1.28 acres is located. The Wheat survey shows no overlap between Rudolph's 1.28 acres and Ben's 0.38 acres. Ben and Wanda later mortgaged the house that is situated on the 0.38 acres, in which they had been residing since 1985 (municipal address 26344 South Frost Road, Livingston, Louisiana 70754).
See COB 648, Page 511 (recorded October 27, 1994) and COB 1108, Page 33 (recorded July 19, 2011).
See MOB 535, Page 836.
See MOB 535, Page 836 (recorded August 4, 1998) [This mortgage has been cancelled. See MOB 704, Page 828 (recorded July 17, 2011)], and MOB 1127, Page 873 (recorded January 31, 2005).
Rudolph later attempted to borrow money against the property and discovered the mortgages placed thereupon by Ben and Wanda, which prompted him to initiate this litigation. Following a bench trial of the petitory action, combined with the intervention by Wells Fargo, the trial court held that Ben acquired the house and surrounding 0.38 acres by ten-year acquisitive prescription, issuing reasons for judgment and signing a judgment in accordance therewith on May 11, 2018. Rudolph now appeals.
LAW AND DISCUSSION
The issue before us is whether the trial court erred in determining that Ben acquired the 0.38 acres by ten-year acquisitive prescription. Rudolph assigns error to the trial court's ruling that Ben was an adverse possessor, contending that Ben admitted under oath multiple times that he did not intend to possess the 0.38 acres adversely to Rudolph's ownership. Rudolph further assigns error to the trial court's ruling that Ben had just title, arguing that the title "was so wrong it was actually misleading, and the title itself excluded the specific property they claimed to have acquired."
As stated, this matter proceeded to trial as a petitory action wherein Rudolph sought to recover his immovable property, namely, ownership of the house and the 0.38 acres. Louisiana Code of Civil Procedure article 3651 provides for the petitory action, which is an action brought by a person who claims the ownership, but who is not in possession of, immovable property against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership. Lafourche Realty Co., Inc. v. Duard Eymard Co., Inc., 93-1278 (La. App. 1 Cir. 6/24/94), 638 So. 2d 1138, 1139, writ denied, 94-1991 (La. 11/11/94), 644 So. 2d 390. To obtain a judgment recognizing his ownership of immovable property or a real right therein, the plaintiff in a petitory action shall: (1) prove that he acquired ownership from a previous owner, or by acquisitive prescription if the court finds that the defendant is in possession thereof; or, (2) prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. La. C.C.P. art. 3653.
In a petitory action, when one party relies on title and the other on acquisitive prescription, the party relying on title will prevail unless the adversary establishes his ownership by acquisitive prescription. George M. Murrell Planting & Mfg. Co. v. Dennis, 2006-1341 (La. App. 1 Cir. 9/21/07), 970 So. 2d 1075, 1080. Rudolph and Ben traced their titles to a common ancestor, their grandmother, Deedie Eugenia Ratcliff Watts. When the titles of the parties are traced to a common author, he is presumed to be the previous owner. La. C.C.P. art. 3653; La. C.C. arts. 531 and 532.
Rudolph's chain of title is as follows: (1) On September 16, 1971, Jackson W. Ratcliff sold Lots 1, 2, 3, 4, 18, and the West ½ of Lot 17 of Block D to his sister Deedie, which she purchased as her separate property.; In addition to conveying those lots, the act of sale also included "some surplusage ... from an old description" in a 1954 deed:
Deedie was married to Ben Hilliory Watts at the time.
See COB 162, Page 405 (recorded September 24, 1971).
Commence at a point on the east margin of the Old Garyville Northern Railroad Right-of-Way, then run east approximately 165 feet to the Bellue property and corner, then run south between parallel lines a distance of 100 feet.The "old description" is unplottable because it does not have a fixed point of commencement, nor does it close. (2) By act of sale dated January 3, 1979, Deedie sold Lots 2, 3, and 4 of Block D to Rudolph and his then-wife, Luvader Watts Guitreau. (3) By community property settlement dated May 9, 1989, Rudolph acquired Lots 2, 3, and 4 of Block D. (4) On October 13, 1993, Deedie donated 1.28 acres to Rudolph, which included Lots 1, 2, 18, and the West ½ of Lot 17 of Block D, referencing the 1953 C.M. Moore survey.
Deedie acquired the property via acts of sale in 1954 and 1955. The September 11, 1954 act of sale by Jessie R. Guitrau (sic) to Deedie included the "old description." See COB 76, Page 237 (recorded September 21, 1954). The property then went through a series of conveyances until Deedie's final acquisition in 1971.
See COB 272, Page 45 (recorded January 5, 1979).
See COB 545, Page 270 (recorded May 10, 1989) (corrected by COB 738, Page 222 (recorded February 9, 1999)).
See COB 634, Page 188 (recorded February 25, 1994).
Ben's chain of title begins with (1) the September 16, 1971 sale of Lots 1, 2, 3, 4, 18, and the West ½ of Lot 17 of Block D by Jackson W. Ratcliff to Deedie. (2) After the death of Deedie on January 13, 1994, her daughter and sole heir, Elvenia Watts Guitreau (mother to Rudolph and Ben), obtained ownership of certain land through a judgment of possession signed October 4, 1994. The judgment of possession described two tracts of land, "less and except" 1.28 acres. The description of tract one uses the "old description" of the property and is unplottable based on the property description contained in the judgment. The description of tract two is Lots 1, 18, and West ½ of Lot 17 of Block D, which is owned by Rudolph. The "less and except" 1.28 acres description corresponds to the 1.28 acres owned by Rudolph. (3) On October 25, 1994, Elvenia donated 0.38 acres to Ben using the "old description" of the property, which, depending on the survey referenced, is either Lot 18 and the West ½ of Lot 17 of Block D (C.M. Moore survey), or, is Lot 18 of Block C (Wheat survey). (4) On July 14, 2011, Elvenia again donated property to Ben using the "old description" (either Lot 18 and the West ½ of Lot 17 of Block D or Lot 18 of Block C), "less and except" the 1.28 acres owned by Rudolph.
See COB 162, Page 405 (recorded September 24, 1971).
See COB 956, Page 462 (recorded December 13, 2006).
See COB 648, Page 511 (recorded October 27, 1994).
See COB 1108, Page 33 (recorded July 19, 2011).
As the trial court correctly observed, Rudolph proved an unbroken chain of title to Lots 1, 2, 3, 4, 18, and the West ½ of Lot 17 of Block D. Rudolph not only proved that he acquired ownership of the property from a previous owner, he also proved a better title to the property than Ben, regardless of whether Ben was in possession of the property. See La. C.C.P. art. 3653. Thus, Rudolph prevailed on his petitory action. Therefore, Ben could only have acquired ownership of 0.38 acres encompassing any of those lots by acquisitive prescription. See McCIendon v. Thomas, 1999-1954 (La. App. 1 Cir. 9/22/00), 768 So. 2d 261, 264.
Ownership of immovable property can be acquired through a ten-year prescriptive period. La. C.C. arts. 3473, et seq. The requisites for acquisitive prescription of ten years are: (1) possession for ten years; (2) good faith; (3) just title; and (4) a thing susceptible of acquisition by prescription. La. C.C. art. 3475. By pleading acquisitive prescription, Ben had the burden of proving all these elements. McCIendon, 768 So. 2d at 264. The determination of whether property has been acquired through acquisitive prescription is one of fact and subject to the manifest error/clearly wrong standard. Barrois v. Panepinto, 2013-0577 (La. App. 4 Cir. 1/8/14), 133 So. 3d 36, 38.
The title serving as the basis for a plea of acquisitive prescription must be one translative of property. McCIendon, 768 So. 2d at 264. A title is just for purposes of acquisitive prescription when the deed is regular in form, is valid on its face, and would convey the property if executed by the owner. See La. C.C. art. 3483; McCIendon, 768 So. 2d at 264; Barrois, 133 So. 3d at 37.
For a deed to be translative of title to real estate, it must contain such a description as to properly identify the property so as to transfer its ownership. It is not sufficient that the description in the deed might be construed to transfer the property. Rather, one must be able to identify and locate the property from the description in the deed itself or from other evidence appearing in the public records. Moreover, the title must sufficiently describe the property so that it can be identified and located from the description. See Barrois, 133 So. 3d at 37.
As a general rule, the description must fully appear within the four corners of the deed, or the deed should refer to a map or plat so that the location of the property is clear. See Quality Environmental Processes, Inc. v. LP. Petroleum Co., Inc., 2013-1582, 1588, 1703 (La. 5/7/14), 144 So. 3d 1011, 1020. Although extrinsic evidence may be resorted to where there is an ambiguity in the property description, it is well settled that where property is described in reference to an attached plat, the plat controls in the event of a discrepancy in description between the worded description and the plat. McClendon, 768 So. 2d at 264-65. If the property is not sufficiently described within the title, one cannot acquire it by ten-year acquisitive prescription. See Barrois, 133 So. 3d at 37-38.
As recognized by the trial court, the issue with Ben's title is whether his deeds are translative, i.e., contain such a description as to properly identify the property so as to transfer its ownership. Ben's 1994 and 2011 deeds use the "old description" of the property that was "surplusage" language contained in an older deed in the chain of title. Rudolph's expert title abstractor, Michael W. Lee, testified that the "old description" is unplottable because it does not have a fixed point of commencement, nor does it close.
See September 11, 1954 act of sale by Jessie R. Guitrau (sic) to Deedie. See COB 76, Page 237 (recorded September 21, 1954).
Neither of Ben's deeds are described in reference to an attached plat; accordingly, extrinsic evidence contained in the public records may be relied upon in this case of title ambiguity; specifically, the 1953 C.M. Moore survey and the 1998 Wheat survey. See McClendon, 768 So. 2d at 264-65. As discussed above, either of those surveys would aid in constructing a proper description of the property such that the title would be translative. If the C.M. Moore survey controls, Ben's title describes Lot 18 and the West ½ of Lot 17 of Block D of the Town of Frost in Livingston Parish, "less and except" the 1.28 acres owned by Rudolph, which includes Lot 18 and the West ½ of Lot 17 of Block D. Based on that survey, neither of Ben's deeds actually conveyed any property whatsoever to him. If the Wheat survey controls, Ben's title describes Lot 18 of Block C of the Town of Frost in Livingston Parish, which is a totally separate piece of property from Lot 18 and the West ½ of Lot 17 of Block D.
Rudolph commissioned a survey by Lester A. McLin, Jr. dated September 8, 2011, which was proffered at trial. See Plat Map Book 63, Page 341 (recorded September 9, 2011). The survey is essentially a recreation of the 1953 C.M. Moore survey, depicting property identical to the 1.28 acres; thus, the court may rely on the C.M. Moore survey.
The C.M. Moore survey and the Wheat survey are conflicting and only serve to provide more ambiguity as the actual description or location of the house and the 0.38 acres. Lack of a definitive description of the actual location of the house and surrounding 0.38 acres cannot establish just title. See Hooper v. Hero Lands Co., 2015-0929 (La. App. 4 Cir. 3/30/16), 216 So. 3d 965, 976, writ denied, 2016-0971 (La. 9/16/16), 206 So. 3d 205.
Ben's title did not sufficiently describe the property so that it can be identified and located from the description. Even relying on extrinsic evidence contained in the public records to aid in construction, the description of the property remains ambiguous. The actual location of the tract is indeterminable. Lack of a definitive description of the boundaries and actual location of the property cannot establish just title. Thus, we find that Ben failed to meet the requirement of just title for acquisitive prescription of ten years. Accordingly, we find that a reasonable factual basis does not exist for the finding of the trial court that Ben acquired the house and surrounding 0.38 acres by ten-year acquisitive prescription, and the record establishes that the trial court's finding was clearly wrong (manifestly erroneous). See Stobart v. State through Dep't of Transp. & Dev., 617 So. 2d 880, 882 (La. 1993). We pretermit discussion of the other elements of acquisitive prescription.
We make no judgment as to the ownership of the tract acquired by Ben from his mother, Elvenia, through an act of donation recorded October 27, 1994, at COB 648, Page 511, and an act of donation recorded July 19, 2011, at COB 1108, Page 33, described as follows:
A certain tract or parcel of land, situated in the Parish of Livingston, State of Louisiana, and being in the SE ¼ of SE ¼ of Section Thirty (30), Township Seven (7), South Range Five (5) East, and being more fully described as follows:
Commence at a point on the East margin of the Old Garyville Northern Railroad Right-of-way, then run East approximately 165 feet to the Bellue property and corner; then run South between parallel lines a distance of 100 feet.
DECREE
The trial court's May 11, 2018 judgment is reversed. We render judgment in favor of the plaintiff, Rudolph R. Guitreau, and against the defendants, Ben E. Guitreau and Wanda D. Guitreau, ordering, adjudging, and decreeing that Rudolph R. Guitreau is the owner, through record title, of the tracts described as follows:
1.28 acres of land, more or less, located in the Parish of Livingston, State of Louisiana, being in Section Thirty (30), Township Seven (7), South Range Five (5) East, more fully described as:and
Begin at the Southwest corner of property and run north 291 feet to a point and corner; thence run east 223 feet to a point and corner; thence run south 291 feet to a point and corner; thence run west 223 feet back to point of beginning, as per map made by C.M. Moore, C.E., recorded March 4, 1953, in the conveyance records of the Parish of Livingston, State of Louisiana, at COB 74, Page 117.
This description is taken from an October 13, 1993 act of donation recorded February 25, 1994, in the conveyance records of the Parish of Livingston, State of Louisiana, at COB 634, Page 188;
A certain tract or parcel of land, together with all buildings and improvements thereon, located in the Parish of Livingston, State of Louisiana, and being in the SE ¼ of the SE ¼ of Section Thirty (30), Township Seven (7), South Range Five (5) East. More fully described as follows:
Being designated as LOTS TWO (2), THREE (3), and FOUR (4) of Block "D" of the Town of Frost, Louisiana; said lots having a frontage of 100 feet each facing a gravel road, and extending back 133 feet as per map made by C.M. Moore, C.E., recorded March 4, 1953, in the conveyance records of the Parish of Livingston, State of Louisiana, at COB 74, Page 117.
This description is taken from a May 9, 1989 community property settlement recorded May 10, 1989, in the conveyance records of the Parish of Livingston, State of Louisiana, at COB 545, Page 270, and as corrected by action of correction recorded February 9, 1999, in the conveyance records of the Parish of Livingston, State of Louisiana, at COB 738, Page 222.
We order, adjudge, and decree that the mortgage placed on the above-referenced property by the defendants, Ben E. Guitreau and Wanda D. Guitreau, recorded January 31, 2005, in the mortgage records of the Parish of Livingston, State of Louisiana, at MOB 1127, Page 873, be cancelled.
We order, adjudge, and decree the dismissal of all claims of the intervenor, Wells Fargo Bank, N.A.
All costs of this appeal are assessed equally to the defendants, Ben E. Guitreau and Wanda D. Guitreau, and the intervenor, Wells Fargo Bank, N.A.
REVERSED; JUDGMENT RENDERED; CANCELLATION OF MORTGAGE ORDERED.
That tract, allegedly 0.38 acres, may exist outside the 1.28-acre tract owned by Rudolph. However, even relying on extrinsic evidence contained in the public records to aid in construction, the description of that tract (i.e., the "old description") and the tract's actual location are ambiguous and indeterminable.