
    Cleovis TRAHAN et al., Plaintiffs-Appellants, v. Isaac BROUSSARD et al., Defendants-Appellees.
    No. 1939.
    Court of Appeal of Louisiana. Third Circuit.
    March 21, 1967.
    Dissenting Opinion March 23, 1967.
    Rehearing Denied April 12, 1967.
    
      Deshotels & Maraist, by Frank Maraist, Abbeville, Gerald I. Hebert, Lafayette, for plaintiff s-appellants.
    Domengeaux & Wright, by W. Paul Hawley, Bailey & Mouton, by William H. Mouton, Lafayette, for defendants-appel-lees.
    Before TATE, FRUGÉ and HOOD, JJ.
   HOOD, Judge.

This is a petitory action in which plaintiffs seek to be recognized as the owners of a 53 acre tract of land in Lafayette Parish. Plaintiffs allege that they acquired the property by inheritance from their mother, Adeline Duhon, who owned it at the time of her death. The suit was instituted against Isaac Broussard, who is now in possession of the property, and against Sunray DX Oil Company, the owner of an oil, gas and mineral lease affecting that tract of land.

The defendants, among other pleadings, filed exceptions of prescription of ten years based on the provisions of LSA-R.S. 9:5682-9:5684. After trial, the trial judge rendered judgment sustaining these exceptions and dismissing the suit. Plaintiffs have appealed.

The principal issue presented on this appeal involves an interpretation of the provisions of LSA-R.S. 9:5682-9:5684. Plaintiffs contend that the defendants, in order to invoke the prescription provided in these sections of the revised statutes, must show that defendant Broussard’s possession of the property has been in good faith. Defendants contend that it is not essential for invoking the prescription therein provided that the possession of Broussard be in good faith. Alternatively, they contend that his possession has been in good faith.

There is no dispute as to the facts insofar as they are relevant to the exceptions presented here. Adeline Duhon owned the tract of land here in dispute at the time of her death in 1920. Her succession was opened in 1937, and in that proceeding a petition was filed by some of the collateral relatives of the decedent, and the assignee of others, seeking to have the mother and the collateral relatives of the deceased recognized as her sole and only heirs at law. It was alleged in that petition that Adeline Duhon had never been married and that she had left no descendants. Pursuant to those proceedings, an ex parte judgment was rendered by the district court on April 24, 1937, recognizing the mother and collateral relatives of the decedent as her sole and only heirs and placing them in possession of the 53 acre tract of land which ' is in dispute here.

A few days after that judgment was rendered, one of the persons who had been recognized as an undivided owner of an interest in this property instituted a partition suit against the other undivided owners, and on May 11, 1937, judgment was rendered by the district court recognizing the persons named in the judgment of possession as being the owners of this property, and ordering that the property be partitioned by licitation. Pursuant to that judgment the property was sold at a Sheriffs sale to effect a partition, and at that sale it was adjudicated to Eloi Broussard. The Sheriff’s deed to Eloi Broussard was executed on July 24, 1937, and was duly recorded in the conveyance records of Lafayette Parish. Eloi Broussard was not an heir of Adeline Duhon, and he had no interest in the property prior to the Sheriffs sale.

EIdí Broussard died in 1940. His succession was opened and judgment was rendered on September 10, 1940, recognizing his surviving spouse and ten children as his sole heirs and sending them into possession of the property left by him, including the property which is involved in the instant suit. Isaac Broussard was one of these surviving children, and he was recognized as one of the undivided owners of this property. On February 12, 1941, a voluntary partition agreement was entered into between all of these undivided owners, and under the provisions of that agreement Isaac Broussard acquired the full ownership of this particular tract of land.

The subject property is farm land, and it was completely enclosed by fences at the time it was sold at Sheriffs sale to effect a partition in 1937. Eloi Broussard took possession of the property immediately after he acquired it in 1937, and he remained in possession of it from that time until his death in 1940. Isaac Broussard took possession of the property immediately after he acquired it in 1941, and he has been in continuous, uninterrupted, peaceable, public and unequivocal possession of it since that time.

The Sunray DX Oil Company is alleged to be the owner of an oil, gas and mineral lease executed by Isaac Broussard on March 26, 1965, and affecting this property. That company was made a party defendant because of the fact that it was the lessee of the property.

The instant suit was instituted on May 27, 1965, by seven plaintiffs who allege that they are the surviving children and sole heirs of Adeline Duhon, having been born of the union between the said Adeline Duhon and John Trahan. They allege that one of the petitioners, Cleovis Trahan, was born after the marriage of Adeline Duhon and John Trahan, and that the other plaintiffs were born prior to that marriage but were later acknowledged and legitimated. Plaintiffs contend that they, as the sole heirs of Adeline Duhon, are entitled to judgment decreeing them to be the owners of the subject property and as such entitled to the possession of it. All of the plaintiffs in this suit had reached the age of majority by the time Isaac Broussard acquired the property in 1941.

The exceptions of prescription which the defendants have filed herein are grounded on the provisions of Act 584 of 1960. The provisions of that statute have been incorporated into our revised statutes as LSA-R.S. 9:5682-9:5684. Section 5682 reads:

“An action by a person who is an heir or legatee of a deceased person, and who has not been recognized as such in the judgment of possession rendered in the succession of the deceased by a court of competent jurisdiction, to assert any right, title, or interest in any of the property formerly owned by the deceased against a third person who has acquired this property from or through a person recognized as an heir or legatee of the deceased in this judgment of possession, is prescribed in ten years if the third person, or his ancestors in title, singly or collectively, have been in continuous, uninterrupted, peaceable, public, and unequivocal possession of the property for such period after the registry of the judgment of possession in the conveyance records of the parish where the property is situated.
“As used herein, 'third person’ means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession. Acts 1960, No. 584, § 1.”

Section 5683 provides that the prescription provided in the preceding section shall accrue against minors and interdicts. And Section 5684 provides that the two preceding sections shall apply retroactively.

At the trial of these exceptions plaintiffs attempted to introduce evidence to show that the possession exercised by Eloi Broussard and Isaac Broussard since 1937 had not been in good faith. Defendants objected to the evidence so offered, and the trial court sustained that objection on the ground that it was immaterial whether the possession was in good faith insofar as the application of the prescription provided in LSA-R.S. 9:5682-9:5684 is concerned. Plaintiffs contend that the trial judge erred in arriving at that conclusion, and in refusing to permit them to introduce evidence tending to show that defendant Broussard and his predecessor in title possessed in bad faith.

Plaintiffs correctly point out that prior to 1960 an ex parte judgment placing heirs in possession was not considered as being an “act translative of title” sufficient to begin the running of the prescription of ten years acquirendi causa under LSA-C.C. art. 3478. Succession of Lampton, 35 La.Ann. 418; Boyet v. Perryman, 240 La. 339, 123 So.2d 79. They contend that Act 584 of 1960 was enacted solely to afford possessors under an ex parte judgment of possession the same right to obtain title by prescription of ten years, acquirendi causa, as is afforded possessors under deeds which on their face are translative of title. It is argued that the Legislature intended that the possession required by LSA-R.S. 9:5682 be the same type of possession which is required by LSA-C.C. art. 3478, and that since the last cited article of the Civil Code requires that the possession be in good faith, the same requirement should apply to the possession provided in LSA-R.S. 9:5682.

Plaintiff also argues that the prescription provided in LSA-R.S. 9:5682 must be classified as acquisitive, rather than liber-ative, prescription, that the only acquisitive prescription of ten years known to our law requires that the possession be in good faith, and that the Legislature did not intend by the enactment of the 1960 legislation to create a new type of prescription of ten years, acquirendi causa.

As pointed out by plaintiffs, we used some language in Succession of Rosinski, 158 So.2d 467 (La.App.3d Cir. 1963), which seems to support their position that the possession provided in LSA-R.S. 9:5682 must be in good faith. The statement made in the Rosinski case and on which plaintiffs rely, however, was intended merely to show the views of the author of an excellent article found in 35 TLR 567. We did not intend by that statement to express an opinion on a question which was not before the court. No issue was presented in the Rosinski case which required the application of LSA-R.S. 9:5682, and we do not regard the language used in that case as supporting the position taken by plaintiffs here.

The language used in LSA-R.S. 9 :5682 indicates to us that the Legislature intended that the prescription therein provided was to be liberative, rather than acquisitive. The statute provides that “An action * * * to assert any right, title, or interest in any of the property * * * is prescribed in ten years * * * ” Most of the articles of the Civil Code which define or relate to liberative prescription provide, as does the statute here in question, that “actions” are prescribed by the lapse of a designated period of time. Article 3459, for instance, provides that “The prescription by which debts are released, is a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time without urging his claim.” See also LSA-C.C. arts. 3534, 3536, 3538, 3540, 3542 and 3543. And, LSA-C.C. art. 3548 provides: "All actions for immovable property, or for an entire estate, as a succession, are prescribed by thirty years/’ All of these articles of the Civil Code, relating to lib-erative prescription, bar claimants from maintaining certain types of actions after the lapse of a period of time. And that is what the statute we are now considering does.

On the other hand, the language used in LSA-R.S. 9:5682 is not consistent with the ■articles of the Civil Code which define and ■relate to prescription, acquirendi causa. Article 3458, for instance, provides that “The prescription by which the ownership •of property is acquired, is a right by which a mere possessor acquires the ownership of •a thing which he possesses by the continuance of his possession during the time fixed by law.” Article 3472 contains provi•sions relating to the time necessary to ■prescribe for the ownership of property. And other articles of the Code relating to ■acquisitive prescription contain provisions which are designed to establish “ownership” of the property. See LSA-C.C. arts. ■3473, 3476, 3478, 3479, 3499 and 3506. The ■statute which we are considering here cannot be used to establish ownership. It merely bars certain heirs or legatees from maintaining actions to assert rights to prop•erty formerly owned by the decedent after they have been silent for a period of time ■without urging their claims. See LSA-C.C. •art. 3459.

We think it is significant that LSA-R.S. ‘9:5682, although specifying the type of pos■session which is required for the application of the ten year prescription therein ■provided, does not require that the possession be in good faith. This is consistent with the provisions of Article 3530 of the 'Civil Code, relating to liberative prescription, which article provides:

"To enable the debtor to claim the benefit of this prescription, it is not -■necessary that he should produce any rtitle, or hold in good faith; the neglect •of the creditor operates the prescription in this case.”

We note also that in an article written by Professor William V. Redmann and appearing in the Tulane Law Review, entitled “The Louisiana Law of Recordation: Some Principles and Problems,” the author indicates that the prescription provided by LSA-R.S. 9 :5682 is liberative prescription. See 39 TLR 491, 506.

Our conclusion is that the prescription of ten years provided in LSA-R.S. 9:5682 must be classified as “liberative prescription,” and that it is immaterial whether the party who seeks to invoke the prescription therein provided possessed the property in good faith or in bad faith.

We find no error in the ruling of the trial judge which had the effect of excluding the evidence offered by plaintiffs tending to show that defendant Broussard or his ancestors in title had possessed in bad faith. The facts essential for the application of LSA-R.S. 9:5682 have been established, and we concur in the judgment of the trial court dismissing the suit.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

Affirmed.

TATE, J., dissents and assigns written reasons.

TATE, Judge

(dissenting).

The seven children of Mrs. Adeline Duhon Trahan sue to obtain recognition of their ownership of a 53-acre tract which she owned at the time of her death. Their suit was dismissed upon a simple showing that the defendant was in possession for ten years, the trial court ruling inadmissible as immaterial any evidence that the defendant’s possession was in bad faith.

The thrust of this suit is: A judgment of possession in Mrs. Trahan’s estate fraudulently showed her mother and collaterals as her legal heirs. The defendant’s father with knowledge of this purchased the property from these false heirs. The present defendant and his father at all times possessed in bad faith and with knowledge that this lady had been survived by seven legitimate children who were the true heirs.

The trial court prevented introduction of any evidence to prove bad faith. It held that it was immaterial if the author of the defendant’s title and the defendant himself had conspired with the false heirs to deprive the decedent’s children of their inheritance — that all that was necessary to perfect the defendant’s title was ten years’ possession under LSA-R.S. 9:5682 (Act 584 of 1960).

With respect, the writer must urge as forcefully as he can that the majority’s affirmance of this holding is erroneous. It permits gross fraud upon minor or absent or unsuspecting heirs. An ex parte judgment of possession has been exalted as beyond attack by the true owners of property described therein, even though it is the vehicle of an intentional conspiracy to deprive heirs of their interest in property.

The majority reaches this erroneous result (1) by overlooking fundamental Civil Code concepts of ownership and (2) by mechanically classifying the present prescription as liberative instead of acquisitive in reliance upon the opening phrases rather than by considering the entire content of the statute.

1.

Under our Civil Code, ownership can never be lost by the failure to exercise it— only by the acquisition of ownership by another through possession sufficient to acquire it through an acquisitive prescription. Civil Code Article 496. The courts have repeatedly held that the true owner cannot be divested of title by a liberative prescription, and that his petitory action cannot thereby be barred. See: Labarre v. Rateau, 210 La. 34, 26 So.2d 279, 283—84;. Harang v. Golden Ranch Land & Drainage Co., 143 La. 982, 79 So. 768, 784-788.

This is settled doctrine in Louisiana and' is a necessary consequence of the property concepts of the Civil Code. Yiannopoulos,. Civil Law of Property, volume I, Section 125 at p. 381 and Section 135 at p. 407' (1966); Aubry and Rau, Property, Section. 191 at paragraph 144 at p. 179 (2 Civil. Law Translations, Louisiana State Law Institute, 1966) ; Planiol, Civil Law Treatise,. Volume 1, Section 2446 (LSLI translation, 1959); 79 So. 784—785 (quoting several French commentators).

2.

The majority describes LSA-R.S. 9:5682' as providing a “liberative prescription” simply because its wording states that “an action * * * is prescribed in ten years-He H* #

The acquisitive prescriptions are those by which the ownership of property is acquired by “possession during the time fixed by law”. LSA-CC Art. 3458. The libera-tive prescriptions are those by which “debts: are released”. LSA-CC Art. 3459.

LSA-R.S. 9:5682 founds the basis of the prescriptive right upon “continuous, uninterrupted, peaceable, public and unequivocal possession of the property” for ten years after recordation of the judgment of possession. Since acquisitive prescriptions are founded on possession, in the legislative symposium published by the faculty of the Louisiana State University Law School, Professor Pascal noted: “Inasmuch as a period of possession is required, the prescription is acquisitive rather than liberative in nature. It may be noted that nothing in the legislation indicates that the possession of the third person must be in good faith, but it would seem that unless the legislation is interpreted to require good faith acquisition by third party possessors claiming prescription the door to fraud will be open * * *.” 21 La.L.Rev. 53 at 64.

To hold that good faith is not necessary for the defendant to acquire title by virtue of LSA-R.S. 9:5682, the majority must not only characterize the prescription as liberative but perforce must also rely upon Civil Code Article 3530. This article provides that a “debtor” claiming the benefit of a liberative prescription need not hold in good faith, for the neglect of the “creditor” is the operative fact.

Even if LSA-R.S. 9:5682 does provide a liberative prescription, I doubt this Code article is applicable. Under its terms, it applies only to debtor-creditor situations. However, the majority here applies this article against the plaintiff owners who have not been divested of title — they are not “creditors” by reason of any obligation, but instead owners by inheritance.

According to the annotations, the decisions which applied this code article (3530) all involved debts, not claims of ownership. Perhaps for this reason this code article has not even been imagined to obviate good faith on the part of one claiming against the true owner the benefits of yet another liberative prescription, LSA-CC Art. 3543, curing informalities in judicial sales. Bordelon v. Bordelon, La.App. 3 Cir., 180 So.2d 855, 858.

If the present majority is right that no liberative prescription can ever be avoided (even by the true owner, as compared with a “creditor”) by the bad faith of the party claiming the prescriptive right, then most certainly our Supreme Court was wrong in holding that purchasers at judicial sales-who are in legal bad faith cannot against the true owner claim the benefit of this liberative prescription. In re Union Central Life Insurance Co., 208 La. 253, 23 So. 2d 63, 72. See 7 La.L.Rev. 238-40 (1947) ; Comment, 15 Tul.L.Rev. 436, 439-40 (1941); Comment, 13 Tul.L.Rev. 615, 616 (1939).

The cited decision and commentaries note that the jurisprudence under this article (3543) holds that the article’s liberative prescription applies only in favor of one who has acquired ownership by the ten-year good faith acquisitive prescription. This is in accord with our fundamental property theory that an owner can lose his title only by an acquisitive, never by a liberative, prescription.

In my opinion, the appellants correctly state that the simple purpose of the 1960 legislation enacting LSA-R.S. 9:5682 is to afford a recorded judgment of possession the same status as an act translative of title for purposes of acquiring title by ten years’ good faith possession. LSA-CC Art. 3478 et seq. Just a few months prior to its enactment, the Supreme Court had reaffirmed our consistent prior jurisprudence in holding that an ex parte judgment of possession cannot serve this function, since it does not purport to be a “transfer” of title. Boyet v. Perryman, 240 La. 339, 123 So.2d 79 (syllabus 5). By the majority’s present interpretation of the remedial statute, the ex parte judgment of possession (which may be secured silently and fraudulently, by connivance omitting minor or absent or quiescent heirs) is now made not only equivalent to a good faith conveyance but additionally is given an effect of res judicata and invulnerability even greater than that of contested judgments (which may be annulled for fraud at any time within a year after the fraud is discovered, LSA-CCP Art. 2004).

In summary, the majority’s interpretation of LSA-R.S. 9:5682 permits one in bad faith, with full knowledge of the fraud, to acquire title ten years after a fraudulent judgment of possession. For the reasons too fully stated, I think this interpretation is analytically unsound and does violence to fundamental property concepts of our civil law. I respectfully dissent.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, J.,

dissents for reasons previously assigned.

SAVOY, J.,

recused. 
      
      . It should be unnecessary to state that these statements are used to illustrate the type of evidence ■which the majority holds inadmissible, without the slightest intimation that such are actually facts in the present case. If the appellants are granted their day in court, it is of course entirely possible that they will be unable to prove such allegations. Also, other exceptions filed may be meritorious — but the only issue here is the ten years’ prescription under LSA-R.S. 9:5682-84, the sole exception sustained by the trial court, see Tr. 96, 101-02.
     
      
      . Art. 496. “The ownership and the possession of a thing are entirely distinct. “The right of ownership exists independently of the exercise of it. The owner is not less the owner because he performs no act of ownership, or because lié-is disabled from performing any such act,- or even because another performs such acts without the knowledge or against: the will of the owner.
      
        “But the owner exposes himself to the■ loss of his right of oimiership in a thing• if he permits it to remain in the possession of a third person for a time sufficient to enable the latter to acquire it: by prescription.” (Italics mine.)
     
      
      . Despite the blanket language of Arts-3459 and 3558 that these liberative prescriptions bar “all” actions, real and personal, the jurisprudence notes that such-liberative prescriptions do not bar actions by oioners; they must be read in conjunction with the acquisitive prescription-articles so as not to provide other prescriptions for acquiring ownership. Lee Labarre v. Rateau at 26 So.2d 283; Harang v. Golden Ranch Land & Drainage Co. at 79 So. 786-787. The Harang case pointed out that the liberative prescriptions are modified by the provision of LSA-CO Art. 3457 that prescriptions either provide for acquiring property or else discharging debts “under the conditions regulated T)y law" ; therefore, in legal context, and underlying condition is that no owner loses title unless another acquires title (and title cannot be acquired by a liberative prescription), 79 So. 786.
     
      
      . LSA-R.S. 9:5682 provides:
      “An action by a person who is an heir or legatee of a deceased person, and who has not been recognized as such in the judgment of possession rendered in the succession of the deceased by a court of competent jurisdiction, to assert any right, title, or interest in any of the property formerly owned by the deceased against a third person who has acquired this property from or through a person recognized as an heir or legatee of the deceased in this judgment of possession, is prescribed in ten years if the third person, or his ancestors in title, singly, or collectively, have been in continous, uninterrupted, peaceable, public, and unequivocal possession of the property for such period after the registry of the judgment of possession in the conveyance records of the parish whore the property is situated * * (Italics mine.)
     
      
      . It is to be noted that another distinguished commentator likewise felt that good faith possession must be required by one claiming the benefit of this prescription. Ben R. Miller, Judgments of Possession, 35 Tul.L.Rev. 567 at 586 (see his text at footnote 6). Until the present opinion there has been no expression whatsoever of opinion that one could acquire title in Louisiana by ten years’ bad faith possession in reliance upon this statute.
     
      
      . That is, accepting as true the allegations of the pleadings and the uncontradicted evidence, insofar as admitted by the trial court.
     
      
      . The Supreme Court there annulled a judicial sale — not a mere ex parte judgment of possession, as here — which attempted to divest children of a decedent of their ownership of inherited property under facts not as fraudulent of their rights as here indicated (by the allegations) by the intentional omission of them from a judgment of possession.
     