
    Willard J. McMIKLE, Plaintiff-Respondent, v. James H. O’NEAL et al., Defendants-Applicants.
    No. 10512.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 26, 1966.
    Rehearing Denied March 1, 1966.
    John C. Morris, Jr., Rayville, for applicants.
    Thompson L. Clarke, St. Joseph, for respondent.
    Before HARDY, AYRES and BOLIN, JJ-
   HARDY, Judge.

This is a suit by plaintiff seeking to compel specific performance by the defendants of option contracts for the sale of certain described immovable property located in Tensas Parish. Defendants interposed a declinatory exception of improper venue and a dilatory exception of improper cumulation of actions, which exceptions were overruled by the district judge. Upon application of defendants this court issued alternative writs for the purpose of reviewing the action of the district court upon the exceptions. The case is now before us for action as to the disposition of the writs.

Plaintiff is a resident of Madison Parish and the defendants, a partnership and its individual members, are residents of Rich-land Parish. Plaintiff seeks judgment recognizing his right to specific performance of the options to purchase and ordering defendants to execute and deliver an act of conveyance to the real property described in said options, which property is located in the Parish of Tensas in which this suit was instituted.

The opposed contentions of the parties may be briefly stated. Defendants, applicants for writs, urge that the district court for the Parish of Tensas is without jurisdiction, under the provisions of the Code of Civil Procedure regulating the subject of venue, to try a suit for specific performance of options to purchase immovable property executed by defendants, all of whom are residents of and domiciled in Richland Parish, notwithstanding the fact that the property which is the subject of the option agreements is located in Tensas Parish. Plaintiff, respondent in writs, argues that the suit involves a right to and ownership of immovable property, which action must be brought in the Parish in which the property is situated.

The effect of these contentions reduced to simple terms may be expressed as follows:

Defendants-applicants insist that this suit is an action for specific performance which under our jurisprudence is considered to be a personal action, and, therefore, must be brought in the Parish of their domicile as provided by C.C.P. Article 42(1). Plaintiff-respondent asserts that the action is-one involving an interest in immovable property which must be brought in the-Parish where such property is situated in accordance with the specific provisions of C.C.P. Article 80(1).

It would appear that our jurisprudence would have disposed of the issue presented, but, unfortunately, we have been unable to find any authorities which are directly in point. On the contrary, there are numerous cases which can be urged as apparently valid support for each of the opposed contentions.

There are numerous cases, primarily involving the issue of prescription, which hold that actions to reform deeds are denominated and must be considered as personal actions. This principle was explicitly stated in the opinion of Mr. Justice McCaleb in Agurs v. Holt, 232 La. 1026, 95 So.2d 644, which declared:

“It is a personal action, even when applied to real estate (see Louisiana Oil Refining Corporation v. Gandy, 168 La. 37, 121 So. 183), * * *.” (Authorities cited)
******
“it is settled that an action for re formation of a deed is a personal action and, hence, is governed by the prescription provided by Article 3544 of the Civil Code, * * (Authorities cited)

In Louisiana Truck & Orange Land Co. v. Page, 199 La. 1, 5 So.2d 365, the court stated that a suit to set aside a sale of real estate for non-payment of the purchase price was a personal action, and therefore subject to the general prescriptive provision relating to personal actions, as fixed in R.C.C. Article 3544.

However, there appear to be some reservations by our courts with reference to the application of the rule enforced in cases involving prescription when the issue of venue is presented. In Browne v. Gajan, La.App., 173 So. 485, on original hearing the First Circuit held that an action to reform a deed was a personal action. But on rehearing (175 So. 486) the court reversed its original judgment and held that an action to reform a deed conveying a mineral interest created a real right which should be asserted in the Parish in which the land was located. A pertinent comment in the opinion on rehearing reads as follows:

“In Louisiana Oil Refining Corp. et al. v. Gandy et al. the court merely considered the nature of the action in its relation to a plea of prescription and was not concerned at all with the question of venue and with the exception to the general rule of venue arising under the articles of the Code of Practice.” (Emphasis supplied.)

The conclusion in the Gandy case, to which reference is made in some of the cases cited supra, was based upon the view that an action to reform a contract which incidentally affects the title to real estate does not necessarily constitute a real action.

In a scholarly article on “Real Actions In Louisiana and Comparative Law”, XXV L.L.R. 589, Professor Yiannopoulos makes the following observation which is of interest in connection with the problem before us:

■“Louisiana courts, while avoiding unnecessary generalizations and concentrating on the solution of concrete problems, have had no difficulty subjecting to the ten-year prescriptive period of article 3544 a number of actions involving enforcement of personal rights, such as actions for accounting, settlement of partnership and usufruct accounts, and actions on unjust enrichment, negotiorum gestio and quasi contracts in general. Quite naturally, Louisiana courts have applied the same prescriptive period to personal actions arising out of legal transactions directly involving corporeal movables and immovables. Thus, actions for the payment of the price of immovable property, for the recovery of the price of the sale in case of impossibility of performance, for the reformation of deeds in case of erroneous description, for the annulment or rescission of sales or mortgages, and actions among co-owners for rents and revenues have been consistently held to be personal actions governed by the prescription of article 3544. With respect to movables, the same rule has been applied by the courts to actions for the recovery of the value of things sold wrongfully or in good faith by persons other than the true owner, actions by the vendor for the payment of the price of materials sold, and actions for the repayment of moneys deposited.
“In interpreting and applying article 3548, on the other hand, the Louisiana courts have correctly limited application of the thirty-year prescription to immovable real actions involving either ‘revendication of the ownership of’ immovables, i. e., petitory actions, or the recovery of an entire estate. Actions for the recovery of undivided shares in lands, actions to compel conveyance of immovables, an action by the administrator of an insolvent estate that certain property be decreed to belong to the succession, an action by a judgment creditor for the recovery of his debtor’s immovables in the hands of third persons, and an action to compel the surrender of im-movables sold under a bond for deed with title remaining in the vendor have been held to be petitory actions.” (Op. cit., pages 625-627.)

Most of the authorities cited, and many others which fall in the same category, have been primarily concerned with a determination of the applicable prescriptive period under the articles of the Civil Code and not with procedural questions. However, in State ex rel. Hyams’ Heirs v. Grace, 197 La. 428, 1 So.2d 683, the court did give consideration to a contention based upon the definitions of personal and real actions as specified in the Code of Practice and made the following observation:

“Counsel are under the impression that since the plaintiffs do not ask in their prayer to be declared the owners of the property that this is not a real action. The purpose of this action is to compel the execution of a patent or title to the lands. In other.words, it is an action to compel the conveyance of the lands. An action to compel conveyance of land is a real action. Mussina v. Alling, et als., 11 La.Ann. 568.” (Emphasis supplied.)

In Bland v. Bullis, La.App., 16 So.2d 573, this court sustained a plea to the jurisdiction filed by an absent owner of minerals on the ground that the purchaser’s suit for specific performance was filed in the parish where the owner of the land resided but not where the land was located.

We think it is significant that the option contracts which plaintiff seeks to enforce in this case were recorded in Tensas Parish. While it is true that these contracts would not serve as conveyances of real property, they do evidence obligations to convey upon conditions contained therein which plaintff alleges have been fulfilled.

With relation to the issue of title to real property, it is of further interest to note that under our jurisprudence the transfer of title can be effected by judgment of the court even without action by the obligor:

“There is no question but that, where the obligation is ‘to do,’ the one upon whom the obligation rests can be constrained to a legal performance not personally, but by the court’s recognition of the right, and, in the event of his refusal to execute specific performance, by decreeing that the judgment shall be the title.” (Dey v. Nelken, 131 La. 154, 59 So. 104 (1912). (To the same effect Kinberger v. Drouet, 149 La. 986, 90 So. 367; Bonfield v. Tichenor (Orleans App., 1939), 189 So. 635; affirmed on rehearing, 194 So. 453).

In Jefferson v. Tennant (2nd Cir., 1958), La.App., 107 So.2d 334, this court did not find it necessary to consider a plea to the jurisdiction and predicated its conclusion upon the then effective principle, before the adoption of the Code of Civil Procedure in 1960, that the nature of an action was determined upon the basis of the prayer of plaintiff’s petition. This judgment was affirmed by the Supreme Court after granting writs; 240 La. 1079, 127 So.2d 155. The opinion of Mr. Justice Sanders of the Supreme Court, after observing that the contract of employment which had purported to convey an interest in mineral rights had been terminated by death of the original defendant, observed that the residual issues had no relation to a real action, and, accordingly, the exception to the jurisdiction ratione personae was well founded.

The general rule of venue as provided in C.C.P. Article 42 is subject to the exception, inter alia, of C.C.P. Article 80, the pertinent portion of which reads as follows:

“The following actions shall be brought in the parish where the immovable pi-operty is situated:
(1). An action to assert an interest in immovable property, or a right in, to, or against immovable property, *

We cannot subscribe to the contention that this action for specific performance which has for its principal purpose the transfer of title to real property should not be governed by what appears to be the very plain and explicit mandatory provision above quoted.

We have pretermitted discussion of plaintiff’s claim for damages allegedly suffered by reason of defendants’ failure to perform. It is properly conceded by counsel for both parties that the demand for specific performance and the demand for failure to perform are severable. As suggested by counsel for respondents, the demand for damages may be disposed by the trial court either by transferring such claim to the court of the domicile of defendants or by dismissing such demand with reservation of plaintiff’s right to institute separate proceedings in the court of proper venue.

For the reasons assigned the alternative writs previously issued herein are recalled and set aside and this case is remanded to the Honorable the Sixth Judicial District Court in and for the Parish of Tensas, State of Louisiana, for further proceedings according to law and consistent with the views expressed in this opinion.

Costs of this court are assessed against defendants-applicants, and it is ordered that the assessment of all other costs await determination after trial.

AYRES, Judge

(dissenting).

An action for specific performance is, in my opinion, a personal action, and the venue for such character of actions is in the parish of defendant’s domicile. LSA-C.C.P. Art. 422.

“A personal action is one brought to enforce an obligation against the ob-ligor, personally and independently of the property which he may own, claim, or possess.” LSA-C.C.P. Art. 422.

Here, plaintiff prays that his rights to specific performance be recognized and that defendants be ordered to comply with the provisions of their contract and, accordingly, deliver unto him a valid title to the property described in the contract.

An obligation to reform a deed to correctly describe property contracted to sell is a personal obligation. Such an action has been characterized as an action ‘'looking io the complete performance of an obligation” and, as such, a personal action. (Emphasis supplied.) Louisiana Oil Refining Corporation v. Gandy, 168 La. 37, 121 So. 183, 186 (1929). Such an action is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true intent of the parties. Agurs v. Holt, 232 La. 1026, 95 So.2d 644, 645 (1957); Ober v. Williams, 213 La. 568, 35 So.2d 219 (1948); Tri-State Transit co. of Louisiana v. Sunshine Bus Lines, 181 La. 779, 160 So. 411 (1935); Hymel v. Old Homestead, Inc., 135 So.2d 685, La.App., 4th Cir. 1961 (certiorari denied 1962); Champagne v. Lepine, 130 So.2d 753, La.App., 1st Cir. 1961. It is purely an action in personam which has for its object the compelling of a party to do that which he has bound himself by contract to do.

It is well established in the jurisprudence of this State that an action to reform a deed by correcting an error in the description of property to make the deed conform to the true intent of the parties is a personal action, for, as pointed out in Louisiana Oil Refining Corporation v. Gandy, supra, “Such an action — that is, an action to reform a deed — has not for its object the assertion of a claim on immovable property, or the assertion of an immovable right against it.’ (Emphasis supplied.) See, also: Copley v. Berry, 12 Rob. 79 (1845); Champagne v. Lepine, supra; Campbell v. Thomas, 140 So.2d 163, La.App., 3d Cir. 1962 (certiorari denied 1962).

While it must be conceded that these cases do not involve the question of venue, they are nevertheless explicit in their language to the effect that the matters involved constitute personal obligations, actions with reference to which must be brought at the domicile of the defendant. LSA-C.C.P. Art. 42.

Moreover, it may be pointed out that an action to set aside a sale of real estate for nonpayment of the purchase price is a personal action. Louisiana Truck & Orange Land Co. v. Page, 199 La. 1, 5 So.2d 365, 366 (1941); Templeman v. Pegues, 24 La.Ann. 537 (1872); Hunter v. Williams, 16 La.Ann. 129 (1861); George v. Lewis, 11 La.Ann. 654 (1856); Jones v. Crocker, 1 La.Ann. 440 (1846).

Thus, as pointed out in XXV La.L.Rev. 589, 625-626, in an article entitled “Real Actions in Louisiana and Comparative Law,” and as quoted in the majority opinion,

“ * * * actions for the payment of the price of immovable property, for the recovery of the price of the sale in case of impossibility of performance, for the reformation of deeds in case of erroneous description, for the annulment or rescission of sales or mortgages, and actions among co-owners for rents and revenues have been consistently held to be personal actions * * * )>

Again, while it must be conceded that the authorities immediately hereinabove referred to did not involve questions of venue, there can be, from the language employed, no question as to the character of the actions.

Principles generally prevailing in other jurisdictions are in accord not only with our statutory enactments but with the aforesaid rules established in our jurisprudence. For instance, it is said:

“Like suits in equity generally, a suit for specific performance ordinarily is an action in personam, and not in rem, * * 81 C.J.S. Specific Performance § lb, p. 409. See, also: 49 Am. Jur., “Specific Performance,” § 139, p.. 162.

Moreover, the general rule is that a suit for the reformation of an instrument is an action in personam, and is properly brought in the place of the defendant’s residence. Thus, it is said:

“A suit for the reformation of an instrument is an action in personam and is properly brought in the place of defendant’s residence, and a decree requiring reformation is properly made there although the property to be affected by the correction of the written instrument is not within the jurisdiction of the court rendering the decree.” (Emphasis supplied.) 76 C.J.S. Reformation of Instruments § 68, p. 417.

An action for specific performance of a contract for the sale of realty was involved in Caudill v. Little, 293 S.W.2d 881, 63 A.L.R.2d 452, Ky.App., 1956. That action was brought in the county in which the land was situated, whereas defendant resided in another county. Plaintiff relied upon the Kentucky statute similar to our LSA-C.C. P. Art. 80 which provides that actions “for the recovery of real property, or of an estate or interest therein,” shall be brought in the county in which the property is situated. The court held that the action was in per-sonam and refused to apply the venue statute relating solely to actions in rem.

In an annotation appearing in 63 A.L.R.2d 479, under which is cited the case of Cooney v. Blythe Co., 200 So. 517, La.App., 1st Cir. 1941, it was stated:

“Since an action to compel the specific performance of a contract pertaining to real property is generally classified as in personam and transitory, except to the extent that it sought to recover a judgment or decree operating directly on the property, the venue thereof, in the absence of any constitutional or statutory provision to the contrary, is generally held to be in the county in which the defendant resides.”

Moreover, as pointed out in Louisiana Oil Refining Corporation v. Gandy, supra,

“The fact that the action to reform a contract may affect incidentally the title to real estate does not necessarily make it a real action.”

Thus, the general rule that the venue of an action on a personal obligation is in the parish of a defendant’s domicile (LSA-C.C.P. Art. 42) applies in all instances in the absence of a clear-cut exception. The exception to the aforesaid rule, relied upon by respondent, contained in LSA-C.C.P. Art. 80, applies to real actions such as peti-tory and possessory actions, actions in re-vindication of real property, and where the property is directly affected. This was obviously the opinion expressed by the commentator in a symposium on Civil Procedure when he said:

“The Code of Civil Procedure contains two articles which, in cases involving real property, provide exceptions to the general rules of venue set forth in Article 42. Article 72 provides that an action of sequestration or an action to enforce a mortgage or privilege by an ordinary proceeding may be brought in the parish where the property is located. All of the situations formerly covered by Code of Practice Articles 163 and 165 (8) do not come within this provision. The real actions, including the petitory action, the action of slander of title, and the possessory action, formerly covered by Article 163 of the Code of Practice, are treated in Article 80 of the Code of Civil Procedure, which deals zvith actions ‘to assert an interest in immovable property, or a right in, to or against immovable property.’ ” (Emphasis supplied, except for italicized “may.”) XXI La.L.Rev. 168, 188.

By whatever degree of liberality the interpretation of procedural statutes may be entitled, such construction does not, in my. opinion, extend to and effectuate a change of a personal obligation to a real obligation, or, by that process, further effectuate a change in the venue of a suit on a personal obligation from that of a defendant’s residence to some other parish.

For these reasons, I am of the opinion that the court of proper venue in the instant case is the court in the parish of defendants’ domicile, and that, accordingly, the writs should be perpetuated and made final, the exception to the venue of the court sustained, and that this cause be remanded so that, in the discretion of the court, the action may be either dismissed or transferred to the court of proper venue. (LSA-C.C.P. Art. 121).

I, therefore, most respectfully dissent.

Rehearing denied.

AYRES, J., dissents.  