
    200 La. 97
    HARVEY v. RICHARD et al.
    No. 36312.
    Supreme Court of Louisiana.
    March 2, 1942.
    Dissenting Opinion March 5, 1942.
    Rehearing Denied March 30, 1942.
    
      Denegre, Leovy & Chaffe and Jacob H. Morrison, all of New Orleans, for plaintiff and appellant.
    Obier & Middleton, of Plaquemine, for defendants and appellees.
    Breazeale, Sachse & Wilson, of Baton Rouge, for Louisiana Progress Oil, Inc., defendant.
   FOURNET, Justice.

Plaintiff, Herbert J. Harvey, relying on the doctrine of equitable estoppel, seeks by this action to be recognized as the owner of a l/160th of the mineral rights and a l/20th royalty interest in and to a certain 200-acre tract of land lying in the East half of Section 29, T. 8 S., R. 11 E., of Iberville Parish, as against the record owner thereof.

For cause of action the plaintiff alleges that by deed dated September 15, 1930, he acquired the property in controversy from A. N. and J. S. Simmons, who had acquired the same by an act under private signature dated June '5, 1928, executed by the defendant Dr. J. A. Richard, Jr., who in fact did not own the property, but that the record owner, Dr. J. A. Richard, Sr., is estopped from contesting that plaintiff’s authors in title (A. N. and J. S. Simmons) acquired a valid and legal title to the property described in the deed for the reason that he joined in the act of sale of his property by attesting the act as a witness and by executing the affidavit proving the signature of his son and co-defendant as the grantor, with full knowledge of these facts which were withheld and concealed from the plaintiff. The Louisiana Crusader, Inc., the lessee developing the property, was also made a party to the suit.

Exceptions of no cause and no right of action were filed by the Richard defendants and an exception of nonjoinder of parties defendant by the lessee, all of which were overruled by the trial judge. On the merits, Dr. J. A. Richard, Sr., answered denying that he knew he was witnessing a transfer of his own property when he attested the act of June S, 1928, and also denying that he had ever authorized anyone to sell the same. In his answer, Dr. J. A. Richard, Jr., not only denied having knowledge that his father’s property was described in the act executed by him on June 5, 1928, but he further averred that he intended by the said act to transfer to A. N. and J. S. Simmons a royalty interest in lands owned by him in a different section of Iberville Parish. The Louisiana Crusader, Inc., answered filing a general denial and calling the party from whom it acquired the lease in warranty.

An intervention and third opposition was filed by the wife .of Dr. J. A. Richard, Sr., in which she sought to have a mortgage held by her and given in security of certain dotal and paraphernal funds, turned over to her husband recognized as outranking the plaintiff’s claim, in the event he was successful in his suit. To this petition the plaintiff pleaded the prescription of ten years liberandi causa.

The plaintiff is prosecuting this appeal from a judgment rejecting his demand.

In this court the Richard defendants are re-urging their exceptions of no cause and no right of action. The basis of these exceptions being that the plaintiff did not allege in his petition that at the time Dr. J. A. Richard, Sr., attested the act as a witness he knew that his property was described in the act, they are without merits since it is alleged in the petition that both of the Richard defendants “knew the true state of affairs and deliberately suppressed and concealed all knowledge as to them.”

The defendants, on the trial of the case, objected to all of the testimony sought to be introduced by the plaintiff on the ground that it was irrelevant in that it was an attempt to vary and contradict, by parol evidence, a written instrument dealing with immovable property that was a matter of public record, contrary to the provisions of the Revised Civil Code and the jurisprudence of this state.

“The authorities are not agreed in respect of the question whether the knowledge of a party respecting the purport and effect of an instrument may be presumed from the sole fact of his having attested it. Some of the earlier English cases and a few American jurisdictions have taken the position that such knowledge may be presumed from the sole fact of attestation. The earlier English doctrine was subsequently disapproved by Lord Chancellor Thurlow. Moreover, the preponderance o-f authority, so far as the American cases are concerned, is distinctly in favor of the view that the fact of a person having attested an instrument does not preclude him from asserting a right affected by its provisions, unless it is shown by independent affirmative evidence that he was cognizant, actually or constructively, of those provisions.” 19 Am.Jur. 787, Section 132. See, also, 21 C.J. 1159, Section 162.

The Louisiana jurisprudence is in accordance with the weight of authority in the United States. See Brian v. Bonvillain, 52 La.Ann. 1794, 28 So. 261; Brian v. Bonvillain, 111 La. 441, 35 So. 632; and Nelson, Curtis & Nelson v. Bridgeman, 152 La. 190, 92 So. 855.

In the first case the court held, as expressed in its syllabus, that the recording of an act ■ in which third parties contracted with each other with reference to the rights in which cm attesting witness might have am interest “does not per se convey constructive knowledge to the general public of any personal interest of the witnesses in the recitals of the act cmd its subject-matter.” In the latter case [152 La. 190, 92 So. 856], the court held that “Signing leases from defendants as witnesses, assisting in obtaining such leases, or holding one of them in escrow pending an examination into the title, did not estop plaintiffs to assert title to part of the land, where they did not know or realise that the leases included land im which they had an interest.” (From the syllabus.) (All italics ours.)

“The sale of a thing belonging to another person is null * * *” (Article 24'52 of the Revised Civil Code), and “It is axiomatic under the law and jurisprudence of this state that parol evidence is inadmissible to create a title in one who never owned the property * * *” (Ceromi v. Harris, 187 La. 701, 175 So. 462, 464, and the authorities therein cited), except where the record owner confesses when interrogated under oath that the property belongs to the claimant, and, in those instances, only when actual delivery of the property has been made to the claimant. Articles 2275, etc., of the Revised Civil Code. See, also, Bach v. Hall, 3 La. 116; Hagan v. Hart, 6 Rob. 427; Bauduc v. Conrey, 10 Rob. 466; Marionneaux v. Edwards, 4 La.Ann. 103; Heiss v. Cronan, 12 La.Ann. 213; Wright-Blodgett Co. v. Elms, 106 La. 150, 30 So. 311; Ruth v. Buwe, 185 La. 204, 168 So. 776 ; 2 L.L.R. 387; and 3 L.L.R. 427.

The cases holding that estoppels are not favored by our courts are legion in our jurisprudence. Whenever estoppel is pleaded as an element of a cause of action, it must be pleaded specifically, the burden of proving the facts upon which the estop-pel is founded, as well as the affirmative showing that he was misled by the acts and 'forced to act to his prejudice, resting upon the party invoking the doctrine. Heirs of Wood v. Nicholls, 33 La.Ann. 744; Thomas v. Blair, 111 La. 678, 35 So. 811; and Hebert v. Champagne, 144 La. 659, 81 So. 217.

As previously stated, the plea of estoppel in this case is based on the allegation that the defendant Dr. J. A. Richard, Sr., in attesting the act executed by his son had knowledge of the fact that his property was being transferred to plaintiff’s ancestors in title and that he deliberately suppressed and concealed his knowledge of these facts from them, causing them to act to their prejudice.

It is true that under the application of the doctrine of equitable estoppel an exception to the rule that the sale of a thing belonging to another is null has been developed in our jurisprudence, in certain cases where a person stands by and permits his property to be sold. However, as was pointed out in the case of Parker v. Ohio Oil Co., 191 La. 896, 186 So. 604, quoting the following excerpts from Ruling Case Law, Corpus Juris, and Cyc., “Mere silence will not work an estoppel. There must be some other element connected with the transaction and the silence to prevent a person from asserting his rights or claim. * * * But to effect an estoppel by silence it must also appear that the person had a full knowledge of the facts and of his rights, that he had an intent to mislead, or at least a willingness that others should be deceived, and that the.other party was misled by his attitude.” 10 R.C.L. 692, Section 21. “Mere silence of itself will not raise an estoppel. To make the silence of the party operate as an estoppel the circumstances must have been such as to render it his duty to speak, and there must also be an opportunity to speak. And it is essential that he should have had knowledge of the facts, and that the adverse party should have been ignorant of the truth, and have been misled into doing that which he would not have done but for such si- ■ lence.” 21 C.J. 1150, Section 154. “As. a corollary to the proposition that the party setting up an estoppel must have acted in reliance upon the conduct or representations of the party sought to be estopped, it is as a general rule essential that the former should not only have been destitute of knowledge of the real facts as to the matter in controversy, but should have also been without convenient or ready means of acquiring such knowledge. A public record is an available means of information as to questions of title, and one who does not take advantage of it cannot claim an estoppel against one who merely fails to furnish such information.” 16 Cyc. 738, 740. (All italics are ours.)

The record in this case sustains the findings of the trial judge that: “The evidence shows that in relation to the said instrument dated June '5, 1928, in which the said Dr. J. A. Richard, Jr., appears as grantor, as aforesaid, J. S. Simmons alone participated, individually and on behalf of his father A. N. Simmons. It is also observed that especially as to the act dated Sept. 15, 1930, purporting to be a transfer of mineral and royalty interests on property described as being in the East half of Section 20 (not section 29), Twp. 8 S. R. 11 East, etc., from J. S. and A. N. Simmons to H. J. Harvey, the said A. N. Simmons appealed alone acting for himself and on behalf of his son J. S. Simmons. And it also appears that the said H. J. Harvey had no idea whatever that Simmons and Simmons had not purchased from a record owner and that he relied merely on the assurance of Mr. Simmons ‘that the title was O. K.’ ”

Other than himself, the plaintiff’s only witness was J. S. Simmons, one of his authors in title, who was an attorney practicing in Plaquemine doing abstract work for the Gulf Refining Company at the time the deed of June 5, 1928, was executed. Mr. Simmons testified that this instrument by which he and his father acquired the property in controversy was prepared by him (without an examination of the record) in his office at the request of Dr. J. A. Richard, Sr., and, when completed, was handed to the elder Richard with the request that he have his son sign the same and that he (Dr. J. A. Richard, Sr.) attest and verify it.

Simmons’ testimony that the act was prepared at the request and under the supervision of Dr. J. A. Richard, Sr., is denied by both of the Richards, who testified that the act was brought to their dental office already prepared by Simmons, in accordance with an agreement Dr. J. A. Richard, Jr., had with Simmons for the transfer of certain royalties owned by him, other than those here in controversy, and that it was signed by Dr. J. A. Richard Jr., as the grantor and verified and attested by Dr. J. A. Richard, Sr., at the request of Simmons, neither of the Richards reading it or knowing that the act so executed contained a description of the property of which the elder Richard was the record owner.

It is obvious from an analysis of this testimony that there is no dispute about the fact that the instrument was prepared by J. S. Simmons and that the attestation and verification of the same by Dr. J. A. Richard Sr., was at the request of Simmons. The only pertinent matter that is in dispute is whether or not the elder Richard knew that he was attesting an instrument that purported to convey his property under his son’s signature.

The only relevant evidence throwing any light on this phase of the case, other than as hereinabove pointed out, is that offered by the witness Simmons. In his testimony he said that he had made no examination of the records before preparing the instrument but that he had relied on his “impression * * * from representations made to me by Doctor Richard, Senior.” He does not state what these representations inade to him by the elder doctor were; nor does he enlighten us as to the manner in which he was misled or deceived by the acts of Dr. J. A. Richard, Sr., in witnessing and verifying the instruments.

We are therefore of the opinion that the plaintiff has not only failed to carry his burden of proving that Dr. J. A. Richard, Sr., in attesting the deed of June 5, 1928, had any knowledge of the fact that a description of his property was included therein but that he has also failed to prove that plaintiff’s ancestors in title were misled in any way by any of the acts of Dr. J. A. Richard, Sr., and induced thereby to act to their prejudice.

Counsel for plaintiff is now arguing before this court, however, a matter not pleaded in his petition as a basis for his plea of estoppel, that is, that Dr. J. A. Richard, Sr., transferred certain property into his son’s name for convenience only and that his (plaintiff’s) ancestors in title believed that the royalty and mineral interest acquired by them under the deed of June 5, 1928, rested on property so transferred. In support of this contention counsel sought to introduce in the lower court certain evidence, to which the defendants objected, tending to show (1) that the true consideration of the deed of June 5, 1928, was not the $360 in cash recited therein, but was, in fact a legal fee owed to the elder Simmons by Dr. J. A. Richard, Sr., and (2) that Dr. J. A. Richard, Jr., was only a “nominal” party in the transaction of June 5, 1928, as corroborated by three documents executed by the two Richards in 1927: (a) One dated March IS and purporting to be a sale by the senior Richard to his son of a fourth interest in 168 acres of land in Township 9 of Iberville Parish; (b) another dated May 2, wherein Dr. J. A. Richard, Sr., sold to his son all of his interest in a lot situated in T. 9 S., R. 11 E., and his interest in Sec. 61 of T. 9 S., R. 10 E., both in Iberville Parish; and (c) the last dated May 16 wherein Dr. J. A. Richard, Sr., sold to his son two tracts of land containing 160.23 acres of land in Township 9 of Iberville Parish.

It appears, however,■ that in plaintiff’s motion filed in the lower court for the reopening of the case for the introduction of the documents above referred to and ‘‘such other proof as the Court may deem pertinent and relevant,” he declared the purpose of this evidence was to impeach the testimony of the junior Richard and to corroborate that of the witness Simmons. In arguing this motion before the lower court, as reflected by plaintiff’s brief filed in support thereof, he limited his request for the reopening of the case to the introduction of the three documents referred to, stating that they were necessary in order to reinforce the testimony of the witness Simmons.

It would be a useless and vain thing to order this case remanded for the purpose of introducing these three deeds, since they have been made a part of the record and have been carefully read and considered by us. We find nothing in any of them to indicate that they are anything other than they appear- — bona fide sales of property not in controversy here.

The conclusion we have reached in this case makes it unnecessary for us to pass on the issues raised by the petition of intervention and third opposition.

For the reasons assigned, the judgment of the lower court is affirmed, at appellant’s cost.

McCALEB, Justice

(concurring).

I am of the opinion that the Judge of the District Court committed error in sustaining objections to certain testimony sought to be elicited from Dr. J. A. Richard, Jr., on cross examination. However, since counsel for plaintiff does not request a remand of the case on that ground but is content to stand upon the documents attached to the motion for new trial, I concur in the decree.

ROGERS, Justice

(dissenting).

My conception of the primary issue involved in this case compels me to differ from the views set forth in the majority opinion.

As I see it, the issue in this case, stripped of all irrelevancies, is whether the well-recognized doctrine of equitable es-toppel protects an innocent purchaser on the face of the record from the claims of the owner who participated in the sale of his realty. On this issue the facts of the case are very simple. They áre as follows:

On September IS, 1930, by act under private signature, Herbert J. Harvey, for a cash consideration of $700, purchased from A. N. and J. S. Simmons mineral rights and a royalty interest in a 200-acre tract of land situated in the Parish of Iberville. The act under private signature was acknowledged on September 23, 1930, and duly recorded in the conveyance records of the Parish on November 6, 1930. On May 3, 1935, A. N. and J. S. Simmons executed an act for the purpose of correcting an error in the description set forth in the instrument dated September 15, 1930. This act of correction was recorded in the conveyance records of Iberville Parish on May 9, 1935.

A. N. and J. S. Simmons acquired the mineral rights and royalty interest they sold to Harvey by purchase from Dr. J. A. Richard, Jr. This sale, which was for a recited consideration of $360 cash, was evidenced by an act under private signature dated June 5, 1928, and, on the same day, duly acknowledged and recorded in the conveyance records of Iberville Parish.

Dr. J. A. Richard, Jr., did not own the mineral rights and royalty interest he sold to A. N. and J. S. Simmons, but his father, Dr. J. A. Richard, Sr., did own the -property.' Nevertheless Dr. J. A. Richard, Sr., acted as a witness to the act conveying the mineral rights and royalty interests to 'the two Simmons. He also signed, under oath, the acknowledgment attached to the instrument, deposing and saying: “that the above and foregoing document (meaning the mineral and royalty deed) was duly signed by Dr. J. A. Richard, Jr., in his (affiant’s) presence and in the presence of Miss Kate Voight, the other subscribing witness, for all the uses and purchases (purposes) therein expressed as his free and voluntary act.”

On September 8, 1938, Herbert J. Harvey brought this suit to have his title vindicated and recognized against the two Richards, father and son, and the Louisiana Crusader Oil Co., Inc., the mineral lessee of the property. Harvey alleged that he acquired the mineral rights and royalty interest from A. N. and J. S. Simmons in good faith, under the belief that they had acquired the property under a valid title from Dr. J. A. Richard,' Jr., and it was not until the year 1937 he learned that Dr. J. A. Richard, Sr., claimed to own the mineral rights and royalty interest conveyed by his son, Dr. J. A. Rich.ard, Jr., to the two Simmons on June 5, 1928. Harvey alleged that Dr. J. A. Richard, Sr., by joining in the deed executed by Dr. J. A. Richard, Jr., both as a witness thereto and as a subscriber to the acknowledgment proving the execution of the deed, was estopped, as against plaintiff, to claim the ownership of the property.

Harvey alleged that by the instrument dated June 5, 1928, Dr. J. A. Richard, Sr., and Dr. J. A. Richard, Jr., divested themselves of all their rights and interests in the property -described in the deed with the same force and effect as if they had been named as vendors in the deed , and that by the recordation thereof in the conveyance records of the Parish of Iber-ville, the alienation evidenced by the instrument became binding not only upon Dr. J. A. Richard, Sr., and Dr. J. A. Richard, Jr., but upon any and all persons claiming by, under, or through them or any of them.

In their answers to the petition, the defendants, Dr. J. A. Richard, Sr., and Dr. J. A. Richard, Jr., denied that when they signed the deed dated June 5, 1928, they knew they were conveying, or that they intended to convey to A. N. and J. S. Simmons the property therein described. They averred that they signed the instrument without reading it and that by reason thereof, and of other circumstances connected with its execution, their vendees, the two Simmons, did not acquire any interest in . the property described therein .which, they could validly convey to the plaintiff in this suit.

In vindication of his title, plaintiff, as an innocent purchaser in good faith, relies upon the written instrument of June 5, 1928, . and the recordation thereof in the public records of Iberville Parish as a defense to which the two Richards, in effect, pleaded their failure to exercise the high degree of care that the transaction demanded.

' On the trial of the case, over plaintiff’s objection, the two Richards were permitted to testify that they signed the deed in error and to give their version of the circumstances under which the transaction was consummated. The trial judge accepted as true the explanation of these defendants and, based thereon, rejected plaintiff’s demand. The majority opinion approves the ruling of the trial judge on plaintiff’s objection to the testimony and agrees with his findings of fact. In my opinion, the ruling was erroneous. Plaintiff’s objection should have been sustained and the testimony objected to should have been excluded, relieving the court of the necessity of passing upon the facts.

This is not a suit to prove title to realty by parol evidence. On the contrary, it is a suit in which plaintiff, an innocent third purchaser, relies on a writing attested and sworn to before a notary public and duly recorded in the conveyance records of the parish where the' realty is situated. Nor does the plaintiff’s action fall within the holdings of those cases involving the sale of a thing belonging to another. On the contrary, this case presents a situation in which a father, in effect, has represented in writing that his son is the owner of the father’s property and has authorized him to sell the property for a valuable consideration to the named vendees.

The good faith of Harvey, in purchasing the property in dispute from A. N. and J. S. Simmons for a sound price, is not and can not be questioned. Harvey can not be charged with bad faith in the transaction merely because an examination of the records would have disclosed that the title to the property, which Dr. J. A. Richard, Jr., assisted by his father, conveyed to A. N. and J. S. Simmons, was not in his name but in his father’s name. Land Development Co. v. Schulz, 169 La. 1, 124 So. 125; Keller v. Summers, 192 La. 103, 187 So. 69. In these circumstances, I am unable to appreciate how the two Richards can be heard to question the validity of the sale to A. N. and J. S. Simmons so far as concerns the title of plaintiff who, as a purchaser in good faith on the face of the records, acquired the property from the two Simmons.

It is stated in the majority opinion that the authorities are not in accord in respect of the question whether the knowledge of a ■party respecting the purport and effect of an instrument may be presumed from the sole fact of his having attested it, but that the preponderance of authority in this country is in favor of the view that the fact of a person having attested an instrument does not preclude him from asserting a right affected by its provisions, unless it is shown by independent affirmative evidence that he was cognizant, actually or constructively, of those provisions. Cite4 as authority for the statement are 19 Am. Jur. 787, sec. 132, and 21 C.J. 1159, sec. 162.

It is also said in the maj ority opinion that the jurisprudence of this State is in accord with the weight of authority in the United States. Brian v. Bonvillain, 52 La.Ann. 1794, 28 So. 261; Brian v. Bonvillain, 111 La. 441, 35 So. 632; and Nelson, Curtis & Nelson v. Bridgeman, 152 La. 190, 92 So. 855, are the cases mentioned as formulating this jurisprudence. I am unable to agree with this statement.

As I appreciate the jurisprudence of this State, it is in line with those decisions of the other, states holding that a person who witnesses an act of sale is precluded from afterwards asserting title to the property to the prejudice of a third person purchasing on the faith of the public records.

As far back as the year 1842, the principle was announced by the Supreme Court of Louisiana that one who stands by and sees his personal property sold as belonging to another will not be permitted to set up his title in opposition to a bona fide purchaser, who bought on the faith of his declaration or apparent acquiescence. Cook v. West, 3 Rob. 331. In’the following year, this Court reiterated this principle in a case involving real property. Marsh v. Smith, 5 Rob. 518. The other cases holding to the same effect are Blanchard v. Allain, 5 La.Ann. 367, 52 Am.Dec. 594; Lippmins v. McCranie, 30 La.Ann. 1251; Wimbish v. Mayer, 144 La. 865, 81 So. 373.

In Wimbish v. Mayer, 144 La. at page 877, 81 So. at page 378, the principle was stated in these words:

“Under our well-settled jurisprudence, where one stands by and sees his property sold under legal process, without making his claim known, or objecting thereto, he will be bound by the sale,” citing authorities.
“A fortiori does that rule apply against one who, by his affirmative representations, induces another to buy property to which he afterwards asserts a claim as owner.” '

The writer of the article on Estoppel in 19 Am.Jur. 787, sec. 132, from which the quotation in the majority opinion was taken, refers, among other authorities, to the annotations contained in 50 A.L.R., beginning at page 671. The annotator men-, tions decisions from the Federal courts and from the highest courts in seventeen states, approving the rule that one who permits his property to be sold to a third person without notice, either actual or constructive, is estopped from thereafter asserting his title thereto as against such third person.

.Among the states are Alabama, Louisiana, Massachusetts, New York, and Pennsylvania. The Louisiana cases referred to are Marsh v. Smith, 5, Rob. 518, and Blanchard v. Allain, 5 La.Ann. 367, 52 Am. Dec. 594. The Alabama case referred, to is Ashurst v. Ashurst, decided in 1898 and reported in 119 Ala. 219, 24 So. 760, 763. The Supreme Court of Alabama in that case held:

“A principle of estoppel with which all others on that subject must be reconcilable, and which is applicable to all, and well sustained by the authorities, is, that, ‘where the owner or person having an interest in property, represents another as the owner, or permits him to appear as such, or as having complete authority over it, he will be es-topped to deny such ownership or authority against persons who, relying on his representations or silence, have purchased or acquired interest in the property.’ ”

In Reinach and Oteri v. New Orleans Improvement Co., Ltd., 50 La.Ann. 497, 23 So. 455, this Court, citing Bigelow on Es-toppel, at page 451, expressly held that one who witnesses an act of sale is precluded from afterwards asserting title to the property against the purchaser, who accepts the conveyance in part on the faith implied by the witness’ signature.

The two cases of Brian v. Bonvillain, 52 La.Ann. 1794, 28 So. 261, and Brian v. Bonvillain, 111 La. 441, 35 So. 632, are based upon ■ the same complicated set of facts. The quotation in the majority opinion is taken from the first Brian-Bonvillain decision in the Fifty-Second La. Annual. While the opinion in that case discusses the numerous questions of estoppel -raised in the case, it merely, in its decree, remanded the case to make parties. - It is therefore of no value as an authority. This is clearly shown in the opinion of the Court in the second Brian-Bonvillain case reported in 111 Louisiana Report. There the Court, at page 444 of its opinion, 111 La., 35 So. at page 633, stated:

“The matter before us is an original o'ne.' This court in reality decided no issue at the first hearing. It announced certain conclusions of fact drawn from the evidence, the correctness of which are not disputed, but conceded, but having discovered of itself at the last moment that the minors, the real parties in interest, were not before the court, it remanded the cause to be further proceeded with. What was said at that time as to estoppel was not called for, and', for the purposes of this case, must be considered not written.”

But even in the first Brian-Bonvillain case this Court stated, as shown by the syllabus, that:

“A person may be estopped himself by signing as a witness an act in which third parties contract with each other with reference to rights in which he may have an interest '* *

As shown in the opinions in both cases, as a result of numerous acts and transactions between the children and grandchildren of Edouard Sigur and Mrs. Gracieuse Cornen, his wife, the ownership of the greater portion of what was known as the Home Place passed to their daughter, Mrs. Gracieuse Sigur Noveret. Mrs. Noveret sold her one-half interest in the Home Place to her Son-in-law, A. A. Bonvillain, and she donated the other one-half interest therein to her daughter Elmire, wife of Bonvillain. In so doing, however, Mrs. Noveret transferred an undivided one-ninth interest more than she actually owned in the property. J. Oscar Sigur, a nephew of Mrs. Noveret, acted as a witness to the act of sale in which she had acquired the interest of the children of her deceased sister, Mrs. Glara Sigur Callery, inherited by them from their grandfather, Edouard Sigur. This was one of the many grounds of es-toppel pleaded against Brian who had acquired Sigur’s interest in his grandfather’s succession on the face of the record. In speaking of the act of Sigur in witnessing the deed from the Callerys to Mrs. Noveret, this Court, in its opinion on the original hearing reported in 111 La. at page 456, 35 So. at page 638, stated:

“The donee of Mrs. Noveret occupies the same position which she herself occupied on that subject. She stands in her shoes.
“The position of Mrs. Noveret touching the eighteenth she acquired from the Cal-lerys: That interest she acquired for value. She was herself, however, as were her vendors, an heir of Mr. Edouard Sigur, and must have known of the rights of Oscar Sigur in the real estate she was purchasing, and of the situation of the succession of her mother. She must have known that Sigur’s interest could only have passed out of him by means of a transfer of some kind — some writing by which he had divested himself of his rights therein. She entered into the contract of sale with the Callerys with no such writing, existing or (of course) recorded. The parties contented themselves with having Sigur sign the act as a witness. Whether this was accidental, or for the purpose of working an estoppel, we do not know. Mrs. Noveret was not made a party to this suit. We do not think the necessities of this case call for a decision of the question of estoppel at this time from its standpoint as between Sigur and Mrs. Noveret.”

In the opinion on rehearing, at page 461 of 111 La., at page 639 of 35 So., the Court, in discussing the question of estoppel, observed :

“The question raised by the pleadings is one purely of title, with the onus on defendants to prove that the title of Sigur was divested by estoppel as alleged.
“His title came from the same source as the title conveyed by Mrs. Noveret to defendants.
“The decision hinges on the sole question of estoppel, and on the further question whether an estoppel not of record can affect a bona fide purchaser.
“We are of opinion that there was no es-toppel against J. Oscar Sigur, because the transactions of May 14, 1894, cannot be explained on any other hypothesis than ignorance on the part of Sigur, Mrs. Noveret, and the defendants as to Sigur’s interest in the Home Place. Sigur inherited one sixth interest in this plantation from his grandfather. In 1884 his grandmother donated to him an additional sixth interest, ‘not subject to any future collation,’ but for the purposes of settlement among the heirs of the estate.
“Sigur subsequently conveyed his third interest thus acquired to Mrs. Noveret. On the death of his grandmother, Sigur inherited one-third of her interest in the property.
“Yet, strange as it may appear, J. Oscar Sigur was ignored as an heir to the real estate belonging to the succession of his grandmother, but was recognized as an heir to the personal property.”

At page 462 of the opinion on rehearing in 111 La., 35 So. at page 640, the Court further observed:

“The error as to the title was common to all the parties. The facts were known to all, and the error was one of law. Mr. and Mrs. Noveret, their daughter, and son-in-law assumed that J. Oscar Sigur did not own any interest in the Home Place. They were not deceived or misled by any act or declaration on the part of Sigur. It was their own mistake.”

It will thus appe'ar that the litigation between Brian and Bonvillain arose from a series of transactions among the members of the same family. The one-ninth interest of J. Oscar Sigur in the Home Place, which he transferred to Brian, was acquired by him as an heir of his grandmother who died subsequent to the date of the execution of the sale by the Callerys of their interest in the Home Place to Mrs. Noveret, which was the deed Sigur witnessed.

In Nelson, Curtis & Nelson v. Bridgeman, 152 La. 190, 92 So. 855, 860, which is also referred to in the majority opinion, the principal point at issue was whether a deputy clerk of court was authorized to correct a recorded deed without the permission of the interested parties. At the very end of the opinion, the Court referred to a plea of estoppel urged against one of the defendants who signed, as a witness, two mineral leases covering, among other lands, the land in dispute. The Court stated that since the defendant did not know or realize that the lease in part included the land in which he had an interest, he was not estopped. The only reference to any authority for the proposition is made in these words: “See, on this subject, Corpus Juris, vol. 21, p. 1159, par. 162.” It does not appear from the opinion whether the leases were entered into prior or subsequent to the alienation of the property in dispute. Nor does it appear that the plea of estoppel was interposed by the lessee to any adverse claim asserted by the witness to the instruments.

In my opinion, this case falls squarely within the principle of estoppel as laid down in the Wimbish, Reinach, and other cases to which we have referred. The case is not one in which Dr. J. A. Richard, Sr., merely stood by and saw his property sold by Dr. J. A. Richards, Jr., to A. N. and J. S. Simmons. It is one in which he affirmatively represented that his son, the vendor of the two Simmons, was the real owner of the property. This is so, not only because he signed the deed as a witness to its execution, but also because of his solemn declaration, attached to and made part of the instrument, in order to make prima facie proof of its execution and so that it might be recorded to affect third persons. Act No. 68 of 1914; Civil Code, article 2253.

In his affidavit attached to the deed, Dr. J. A. Richard, Sr., swore that the instrument was signed by his son, Dr. J. A. Richard, Jr., in his (affiant’s) presence and in the presence of the other subscribing witness, “for all the uses and purchases (meaning purposes) therein expressed * * *.” The purpose and use for which the instrument was executed was to evidence the sale of the property therein described for the consideration therein expressed by Dr. J. A. Richard, Jr., as owner to A. N. and J. S. Simmons. On the affidavit of Dr. J. A. Richard, Sr., the execution of the instrument was proved and spread upon the public records. So far as innocent third persons are concerned, both Dr. J. A. Richard, Sr., and Dr. J. A. Richard, Jr., are presumed to know the contents of the instrument which they signed.

If the two Richards, as they claim, signed the instrument without reading it, they were guilty of culpable negligence for which they, and not the plaintiff, must suffer the consequence.

“Although an intention to influence the conduct of another is ordinarily essential to the creation of an equitable estoppel, it has been held in many cases that estoppel may arise, even in the absence of any intention of this character, from the culpable negligence of one party by which another has been misled.” 19 Am.Jur. 694, sec. 66. “One who is able to read a written instrument which is presented to him and has,an opportunity to do so is ordinarily estopped from denying that he knew of the contents thereof and is bound thereby, if he negligently signs, accepts or acts upon it without actually reading it.” 19 Am.Jur. 702, sec. 71.

It is a great principle of equity that if one of two innocent persons must suffer, he shall suffer who, by his conduct, has rendered the injury possible.

If it be conceded that Dr. J. A. Richard, Sr., in joining in the execution of the deed by Dr. J. A. Richard, Jr., to A. N. and J. S. Simmons was not cognizant of the fact that’the property conveyed was his property and not that, of his son, it is difficult for me to understand how his culpable negligence in failing to observe that fact can be imputed to the plaintiff, an innocent purchaser on the face of the public records.

For the foregoing reasons, I respectfully dissent from the views expressed in the majority opinion.  