
    The UNION BANK, Plaintiff-Appellee, v. Anthony J. ROY, Jr., Defendant-Appellant.
    No. 1233.
    Court of Appeal of Louisiana. Third Circuit.
    Oct. 27, 1964.
    Rehearing Denied Nov. 18, 1964.
    Writ Granted Jan. 18, 1965.
    Stafford & Pitts, Grove Stafford, Alexandria, and Roy & Roy, by A. J. Roy, Jr.,-Marksville, for defendant-appellant.
    Laborde, Lafargue & Brouillette, by C. E. Laborde, Jr., Ryan J. Couvillon, Marksville, for plaintiff-appellee.
    Before SAVOY, HOOD and CULPEP-PER, JJ.
   SAVOY, Judge.

Defendant has appealed from the judgment of the district court.

Plaintiff filed a possessory action against defendant. A strip of land approximately 3½ feet is in controversy.

In its petition plaintiff alleged that it is the owner and possessor of a lot in the Town of Marksville, Louisiana, fronting 48-feet 10 inches on Main Street and running back between parallel lines a distance of 108 feet. It also alleged that defendant has constructed a fence across the rear of the above lot some feet east of the boundary line between the property of the parties. The plaintiff claimed that it has been in continuous possession of said property fenced in by defendant for more than one year prior to the erection of said fence.

Plaintiff prayed for a preliminary and a permanent injunction against defendant ordering him to remove said fence and maintaining it in possession of the disputed strip.

Defendant filed a plea of estoppel, exceptions of no right and no cause of action and reserving his rights under the above: pleadings filed.

In the exceptions filed defendant alleged he purchased the property in controversy from plaintiff; that immediately after the purchase of said property, he went into actual physical possession of the vacant lot so purchased from plaintiff; and that he has been in open, continuous, notorious and peaceful possession of it ever since. He alleged that plaintiff, as vendor, could not evict defendant, as vendee, from said property.

Alternatively defendant alleged that should this Court find that plaintiff remained in possession of a portion of the land it sold to him, then the possession was precarious and not for its own account, and accordingly, it was estopped from claiming possession adverse to him.

Defendant also filed an answer and a re-conventional demand calling plaintiff and Avoyelles Trust and Savings Bank in warranty, and made the Avoyelles Bank a third party defendant. The Avoyelles Bank had originally owned, among other property, that in controversy which it had sold to plaintiff. The Avoyelles Bank did not contest the action, and apparently, the demands against it have been abandoned since the lower court judgment did not mention said institution nor is it discussed in the briefs except to show that it was made a third party defendant.

The trial judge overruled the pleas and exceptions. Plaintiff was granted a preliminary injunction, and by stipulation between counsel, it was agreed that the same evidence used on the preliminary injunction would be used by the trial judge on the merits. Pursuant to this stipulation, the district judge granted plaintiff a permanent injunction against defendant. This appeal followed.

On arriving at the solution to the question of possession in the instant case, it is necessary that the Court examine the descriptions in the deeds from the Avoyelles Trust and Savings Bank to plaintiff, and from plaintiff to defendant. One reason for this is that the district judge held there was an ambiguity in the latter deed, and in arriving at his decision, he interpreted the said instrument.

On July 31, 1935, the Avoyelles Trust and Savings Bank sold to plaintiff the following property, to-wit:

“That certain town lot, and the bank buildings and all other improvements thereon and thereto belonging, situated in the town of Marksville, Louisiana, known as the Avoyelles Trust and Savings Bank building and lot on which the same is situated, and more fully described as follows: The said lot to have a front of forty-eight feet (48') ten inches (10") on Main Street beginning from the corner of Main and Mark Streets, and extending back a depth of one hundred seventy-nine feet (179') between parallel lines. Bounded on the north by property of the vendor or the Post Office lot, and property of Mrs. H. C. Schreiber, on the south by Mark Street, on the east by Main Street, and on the west by property of the Avoyelles Trust and Savings Bank. All as per plat of survey of E. B. Messick, Surveyor, hereto annexed as part hereof.
“It is agreed that the purchaser shall always leave open a driveway or passage, and to be used only as such, for the benefit of the lot now belonging to the vendor and known as the Post Office lot which is located immediately north of the property herein sold, said driveway or passage to be located immediately west of the bank building or ninety-eight feet (98') from the eastern property line of the property herein sold, and to be ten feet (10') front on Mark Street running back between parallel lines to the said Post Office lot, said driveway or passage being shown on the plat of survey of E. B. Messick, Surveyor, attached to this sale.”

Plaintiff sold a portion of the land which it purchased from the Avoyelles Bank to defendant on November 3, 1937. The description in this deed is as follows:

“A certain town lot situated in the corporate limits of the Town of Marks-ville, Avoyelles Parish, Louisiana, beginning at a point ten (10) feet back of the back wall of the present Union Bank Building which is one hundred eight (108) feet from the Southeast corner of the Union Bank lot along Mark Street, a distance of seventy-one (71) feet from said point along Mark Street by a depth between parallel lines of forty-eight and 83/100 (48.83) feet bounded on the north by Estate of G. L. Mayer, and Mrs. Harry Schrieber; South by Mark Street; East by property belonging to the Union Bank; and West by property belonging to the Avoyelles Trust and Savings Bank.” See Alienation Book A-67, folio 160 of the Records of the Parish of Avoyelles, Louisiana.

Plaintiff contends that the deed from it to defendant is ambiguous in that the deed wherein defendant bought the property from it states that the point of commencement of said tract is ten feet (10') back of the back wall of the present Union Bank Building (plaintiff herein) which is 108 feet from the southeast corner of the Union Bank lot.

The plaintiff contends that the tract which is described as 108 feet from the southeast corner should prevail over the first call, namely, 10 feet back of the back wall of the Union Bank building because the west line of Main Street with the north line of Mark Street, which is the southeast corner of said lot, is a more definite and lasting monument than is the rear wall of the Union Bank building. Plaintiff also points out to the Court that when defendant purchased the lot there was a 5 inch concrete wall or curb which is 13 feet from the bank building, and that said wall or curb fixed defendant’s eastern boundary; that defendant, by his silence and inaction, has acquiesced in said wall or curb being the eastern boundary between his property and that of plaintiff.

Counsel for defendant contends that the first call in the Roy deed should prevail for the reason that the back wall of the plaintiff bank building is a monument that can be observed by the ordinary layman whereas the second call “commencing at a point 108 feet of the southeast corner of the Union Bank lot along Mark.Street” cannot be ascertained without a survey of the property because this point of commencement of said lot could not be seen by the attorney or notary who prepared the Roy deed.

The record reveals that the deed involving the property in the instant case was prepared at the direction of plaintiff. If it is ambiguous as contended by counsel, then any ambiguity therein should be construed against the seller. See LSA-C.C. Art. 2474; Mestayer v. Cities Service Development Company, (La.App., 3 Cir., 1961), 136 So.2d 513, cert. den.; and cases cited therein.

After studying the contentions advanced by able counsel for the parties to this suit, this Court is of the opinion that the construction placed by defendant is the more logical one.

Whoever prepared the instant deed was aware that the purchase made by plaintiff of the property purchased from the Avoy-elles Bank contained a reservation of a servitude 10 feet wide running 10 feet from the western wall of plaintiff bank building. In order to protect plaintiff bank, the starting point of the land purchased from plaintiff by defendant is described as “beginning at a point 10 feet back of the present Union Bank Building which is 108 feet from the southeast comer of the Union Bank lot along Mark Street.” There is a conflict between the two calls in the deed.

This Court is of the opinion that the first call should prevail over the second because in the first call there is a definite monument which may be observed by the ordinary layman, namely, the west or back wall of the plaintiff bank building. On the other hand, the second call would require a survey to determine the point commencing 108 feet of the southeast corner of plaintiff lot. As to the concrete rail or curb shown on the map prepared by Claude E. McMath on July 1, 1963, as Exhibit-Roy 17 in the record, the record reveals that the concrete curb was there when defendant bought the property. Had plaintiff desired the concrete wall or curb to be the property line between the parties, it would have been a simple matter to so state in the deed wherein . defendant purchased a portion of the land in controversy. The curb has been there at least 27 years, and it is a monument which can readily be seen by anyone in the vicinity thereof.

While it is true that this is a pos-sessory action, the two deeds mentioned herein were introduced in order to locate the proper limits of the property in controversy. Since the plaintiff had the corporeal possession of the property for more than a year required to maintain the pos-sessory action, Articles 3658, 3660, LSA-Code of Civil Procedure, then possession alone and not title is normally at issue, Article 3661, LSA-Code of Civil Procedure. However, in his pleadings the defendant set up title in himself, by his pleadings of acquisitive prescription and of his title to the strip by virtue of his title deed, as a defense to the possessory action. See Article 3657, LSA-Code of Civil Procedure. The defense thus raised by the defendant had the effect of admitting the plaintiff’s possession of the disputed strip, but of claiming that the defendant owned the title to the same.

Finding that this defense is sustained and that the defendant does have title to the disputed strip, the injunction granted by the trial court is annulled and set aside, and judgment is hereby rendered in favor of the defendant and against the plaintiff, dismissing its suit. All costs in the district court and in this court are assessed against the plaintiff-appellee.

Reversed.

HOOD, Judge

(dissenting).

I cannot agree with some of the conclusions which have been reached by my conscientious brethren who'constitute the majority. In my opinion the trial court correctly disposed of the issues presented here, and I feel that the judgment appealed from should be affirmed.

In the deed from the Union Bank to Mr. Roy the description locates the point of beginning as “beginning at a point ten (10) feet back of the back wall of the present Union Bank building which is one hundred and eight (108) feet from the southeast corner of the Union Bank lot along Mark Street, * * The description further provides that from that point of beginning the property conveyed to Roy extends 71 feet along Mark Street, by a depth of 48.83 feet, and that it is bounded on the "west by property belonging to the Avoyelles Trust and Savings Bank.”

Assuming that the first mentioned call (10 feet back of the back wall of the present building) means what defendant says it does, then there is a conflict between that call and practically all other calls mentioned in the description. I think the majority erred in accepting that single call as being controlling and in rejecting the other calls contained in the description, some of which I consider to be much more definite and significant than the one which was accepted. I also feel that the majority has failed to consider what seems to me to be the obvious intent of the parties in completing this transaction.

In the first place, I think the single and sole call on which the majority hinges its decision is so indefinite that it cannot serve to locate a point of beginning, even if we completely disregard the other clear, definite and precise calls contained in the deed. In order to follow the majority’s line of reasoning, we must assume first that the “back wall” of the bank building is the west wall of that structure. But the west wall is about 37 feet long, running north and south, and it does not touch or border on Mark Street at all. In fact, according to the plats in the record, the southwest corner of the building (or the point on the west wall which is nearest to Mark Street) is more than ten feet north of the north line of that street. It is impossible, therefore, to measure 10 feet from any part of the “back of the back wall” of that building and to arrive at a point on Mark Street which could serve as a point of beginning. The majority obviously interprets the description to mean that the point of beginning was to be ten feet west of a point where the extension of a line drawn along the west wall of the bank building would intersect the north line of Mark Street. But the description does not say that, and if we improvise the language necessary to arrive at that result, then we find that it conflicts with the other definite and specific calls. From the language contained only in the first part of the description, therefore, and without reference to other facts or calls, it seems clear to me that the call of 10 feet back of the back wall of the building was intended merely to give the general location of the point, and that the language immediately following which describes the point of beginning as being 108 feet from the southeast corner of the bank lot along Mark Street is intended to identify the specific point of beginning.

There are other facts, however, which show clearly that the trial judge was correct in concluding that the point of beginning was 108 feet west of the southeast corner of the Union Bank lot, exactly as recited in the deed.

As pointed out by the majority, in 1935 the Union Bank acquired from the Avoy-elles Trust and Savings Bank a lot of land having a frontage of 179 feet on Mark Street. In connection with that sale a survey of the property was made by E. B. Messeck, Surveyor, and a plat of that survey was attached to the deed. In that transaction the Union Bank agreed to leave open a driveway or passageway ten feet wide running in a northerly direction from Mark Street, and this driveway was described in the deed as being “immediately west of the bank building or ninety-eight (98) feet from the eastern property line of the property herein sold, * * * said driveway or passage being shown on the plat of survey of E. B. Messeck, Surveyor, attached to this sale.” The west line of this driveway was described in the deed, therefore, as being 108 feet west of the east line of the property acquired by the Union Bank. The plat made by Messeck specifically shows the west line of this driveway, which is marked, located and identified by a concrete curb (an artificial monument), and this curb is shown in all subsequent plats as being exactly 108 feet from the east line of the Union Bank property. The bank building itself is not shown on the Messeck plat.

When the Union Bank sold a portion of this property to Roy two years later, in 1937, it is obvious that the parties endeavored to track the language which had been used in the 1935 deed, and that they intended that Roy was to receive the west 71 feet of the 179 foot frontage on Mark Street which the Union Bank had acquired two years earlier, thus leaving the bank as owner of the east 108 feet of that lot. The deed specifically recites that the point of beginning is 108 feet from the southeast corner of the Union Bank lot, that from that point it is to run along Mark Street a distance of 71 feet, and that it is to be bounded on the west by property of Avoyelles Trust and Savings Bank. The east line of the Avoyelles Bank property is exactly 179 feet west of the east line of the Union Bank property.

The evidence, including the surveys made later by other surveyors, shows that there were no errors in the Messeck survey and that there is no shortage in that block. If the judgment rendered by the trial court should be affirmed, as I think it should, then the Union Bank would retain a 108-foot frontage on Mark Street as the parties clearly intended, defendant Roy would acquire a lot having a frontage of 71 feet on that street as called for in the deed, Roy’s property would be bounded on the east by the concrete curb which marks the western edge of the driveway which the Union Bank agreed to keep open, and Roy’s property would be bounded on the west by property owned by the Avoyelles Bank, all exactly as provided in the deed. On the other hand, if the decision of the majority is allowed to stand, then the Union Bank will be restricted to only a 105-foot frontage on Mark Street instead of the 108-foot frontage specified in the deed, Roy’s property will encroach three feet on, or east of, the concrete curb which marks the west line of the driveway which the Bank is obliged to keep open, and Roy’s property will not be bounded on the west by property of the Avoyelles Bank, as specifically provided in the deed, but instead it will be bounded on the west by a strip of land about three feet wide apparently still owned by the Union Bank and located between Roy’s property and the Avoyelles Bank property.

I cannot agree with the majority in its conclusion that the Union Bank intended to convey to Roy a part of the passageway or driveway which it had agreed to keep open for the benefit of the owner of the property to the north of the bank, and that it intended to retain a very narrow strip of land, about three feet wide, on the east side of the property which it sold to Roy, which strip could be of no practical use or value to the bank.

I think it is significant that from the time Roy purchased the property, in 1937, until sometime in 1962, or for a period of about twenty-five years, the parties apparently recognized the concrete curb, which clearly has marked the west line of the driveway and admittedly is located 108 feet from the east line of the Union Bank lot, as being the boundary line between these two lots.

In the determination of boundary lines, our courts have recognized certain guides which are fixed in the order of their importance as follows: (1) Natural monuments; (2) artificial monuments; (3) distances; (4) courses; and (S) quantity. Aucoin v. Marcel, La.App. 1 Cir., 38 So.2d 81; Carlisle v. Graves, La.App. 2 Cir., 64 So.2d 456; Hulin v. Hale, La.App. 3 Cir., 137 So.2d 709. All of these guides or standards, however, must yield to the intention of the parties which is the controlling consideration. Carlisle v. Graves, supra; Hulin v. Hale, supra.

It is settled that in the interpretation of descriptions in deeds the entire description should be considered in determining the identity of the land conveyed. If recitals in a deed are inconsistent or repugnant, the first recital does not necessarily prevail over the latter, but the whole language of the deed should be construed together in order that the true construction may be ascertained. In such a case the court will look into the surrounding facts and will adopt that construction which is the most definite and certain and which will carry out the evident intention of the parties. Smith v. Chappell, 177 La. 311, 148 So. 242; Reynaud v. Bullock, 195 La. 86, 196 So. 29.

The majority feels that the back wall of the bank building was an artificial monument, and thus that it was entitled to great importance as a call in the description. I consider the concrete curb located exactly 108 feet from the southeast corner of the Union Bank lot as being a much more significant artificial monument. As stated by the majority, “The curb has been there at least 27 years, and it is a monument which can readily be seen by anyone in the vicinity thereof.” This concrete curb was shown on the Messeck plat, which plat was prepared and recorded just two years before the sale to Roy, while the west wall of the Ijank was not shown on that plat. Also, the majority finds that the call measured from the southeast corner of the Union Bank lot is not entitled to consideration, because •this corner “cannot be ascertained without .-a survey.” I think it is significant that all .of the surveyors had no difficulty in finding the exact location of that corner, and all •surveyors agree as to its exact location.

Aside from these observations however, I think the evidence shows clearly that it was the intention of the parties that the hank was to convey to Roy, and Roy was to receive, a lot having a 71 foot frontage .on Mark Street, and that the dividing line ■between Roy’s property and the Union Bank’s property was intended to be along .the concrete curb, which is located exactly 108 feet west of the east line of the Union Bank lot.

For these reasons I respectfully dissent.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, Judge

(dissenting).

The writer respectfully dissents. In my opinion, my conscientious and learned brothers of the majority fell into error of law by interpreting the title deed according to one call only, which was in conflict with three other calls in the same deed, instead of by interpreting the deed as a whole; and also by mechanically applying •the presumption against the seller in case of ambiguity, LSA-C.C. Art. 2474, instead ■of applying as well other pertinent rules of construction to determine the intention ■of the parties as expressed by the deed.

Rules of construction, reliance upon calls •in the deed, and other interpretative approaches, are all designed only to accomplish the primary aim of judicial interpretation of contracts — that is, to determine the intent of the parties to the deed as expressed by the words in the deed. LSA-•C.C. Arts. 1945 and following. Mechan-fical reliance upon one rule of construction only, or upon one call of the deed only, overlooks this fundamental purpose of judicial construction of contested deeds.

For the reasons stated by my brother Hood’s dissent to the original opinion, I agree with the trial court that the boundary between the plaintiff Union Bank and the defendant Mr. Roy should be fixed at a point “108 point from the Southeast corner of the Union Bank lot along Mark Street”, as called for by the deed. This is made manifest when the descriptive calls of the deed are construed as a whole, instead of by seizing upon one call only as indicating the intent of the parties.

If the boundary between the tracts is fixed 108 feet from the corner of the seller’s lot according to such call in the deed, then the following other calls of the title deed are correct: the defendant Roy then acquired the remaining western 71 feet of the plaintiff’s 179 feet (which had been acquired two years before), and he was then bounded on his west by a lot belonging to the Avoyelles Trust Company (another bank), both as called for by the deed; and all other calls of the deed are likewise correct.

If this is not done — and if instead the boundary is fixed at ten feet from the plaintiff’s west wall, as done by our majority opinion — , then not only .is the .108-foot call of the deed incorrect; but then also, the defendant Roy either acquired 74 feet along Mark Street (instead of 71 as called for by the d'eed), or else he was not bounded on the west by the Avoyelles Trust property (as called for by the deed) —which latter would mean that the plaintiff Union Bank had sold Mr. Roy a 71-foot lot but had retained (unknown to any of the parties or the public over the last 27 years) a useless three-foot strip on the far side of the Roy lot separating it from the Avoyelles Trust lot.

By allowing full and complete weight to the single call “ten (10) feet back of the back wall of the present Union Bank Building”, the majority has thus completely ignored (A) the at least equally definite call equating the locating of this starting point as “one hundred eight (108) feet from the Southeast corner of the Union Bank lot along Mark Street”, as well as (B) the call in the deed that the southern boundary shall from this point include “a distance of seventy-one (71) feet [only] from said point along Mark Street”, together with (C) the description in the deed that the Roy lot shall be bounded “West by property belonging to the Avoyelles Trust and Savings Bank.”

Thus, the call for a starting point “ten (10) feet back of the back wall * * * which is one hundred eight (108) feet from the Southeast corner of the Union Bank lot”, should be interpreted in the light of the deed as a whole. “All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.” LSA-C.C. Art. 1955.

Viewed in this light, the reference to the starting point as being ten feet back of the back wall, must yield to the three more definite calls, if the “ten foot” reference is regarded indeed as a definite and conflicting call instead of as an estimate.

Actually, from reading the 1935 deed by which Union Bank acquired the 179-foot parent lot, in conjunction with the 1937 deed by which the defendant Mr. Roy acquired the western 71 feet of this lot, it seems obvious that the parties intended for Mr. Roy to purchase the property beyond the western curbing of the driveway, and that the discrepancies in the deed resulted from the parties’ incorrect assumption that this western edge of the driveway (correctly and definitely fixed by the Roy deed as 108 feet from the corner of the lot) was only ten feet from the rear wall of the bank building. The Messick survey attached to the 1935 deed, for instance, shows this concrete curbing as the “driveway wall”, and the 1935 deed itself indicates that this western side of the driveway was 108 feet from the southeast corner of the Union Bank lot.

My sincere and conscientious brethren of the majority fell into error, in my opinion, by finding the deed in question to be ambiguous because of the single conflicting call (which I think is easily explained by reference to the title deeds), and by then finding that the deed must be construed against the vendor, LSA-C.C. Art. 2474.

In the first place, construed as a whole, I do not believe the deed to be ambiguous, LSA-C.C. Arts. 1945(3), 1955. However, even if ambiguous, the rule relied upon by the majority is not the sole and monopolistic rule which must be applied to determine the intention of the parties — after all, the overriding aim of all rules of interpretation. Another equally important rule, peculiarly applicable here, is that the meaning of ambiguous contracts may be ascertained from the practical construction given it by the parties through their express or implied assent in the manner of its execution, LSA-C.C. Art. 1956 — and in the present case, we find that the Union Bank exercised physical possession up to the concrete driveway curbing 108 feet from the southeast corner, for instance, piling building debris on the disputed three feet over several months, many years gravelling and maintaining the strip, burning trash by its janitor on it for years, etc., and in fact treating the disputed strip as its own during the some 27 years following the supposed sale of it to the defendant in 1937. To the contrary, the defendant never exercised physical possession over the strip until a few days before this suit.

As stated in Shoreline Oil Corporation v. Guy, La.App. 2 Cir., 189 So. 348, 351: “The interpretation of the ambigous features of the instrument by the parties thereto immediately after its execution, at a time non-suspicious, when the facts were fresh, is the safest index to the instrument’s true meaning. Guy’s [i. e., the purchaser’s] silence for over a quarter of a century strongly serves to confirm the correctness of his original understanding of the instrument’s true purpose.”

Since I believe the meaning of the deed to be clearly established according to ordinary deed-interpretation principles, it is unnecessary for me to discuss the burden placed upon the present defendant, who converted this possessory action into a petitory suit by claiming title, thus admitting the undisturbed possession of the plaintiff Bank. The defendant thus has the burden of proving a good title against the world, as the plaintiff Bank was in possession of the disputed strip. LSA-C.C.P. Art. 3653(1).

For the reasons perhaps too full}' stated, I respectfully dissent from the refusal of a rehearing by my esteemed brethren of the majority herein. 
      
      . This call for the Roy lot to he bounded by the adjacent Avoyelles Trust lot is regarded as a definite call in the nature of a natural monument, which prevails over distanees or quantities. City of New Orleans v. Joseph Rathborne Land Co., 209 La. 93, 24 So.2d 275.
     