
    Lawrence J. KEATING, et al. v. Douglas A. CAMBRE, et al.
    No. 82-CA-70.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Writ Denied March 16, 1984.
    See also, La.App., 420 So.2d 1355.
    Roland J. St. Martin, LaPlace, for plaintiffs-appellees.
    Tony Tillman, John L. Diasselliss, III, LaPlace, for defendants-appellants.
    Before CHEHARDY, KLIEBERT, BOWES, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is an appeal from a declaratory judgment which decreed Lawrence J. Keat-ing, Jr. and Kenneth A. Keating owners of a tract of land located in St. John the Baptist Parish. At issue is the interpretation of a 1964 judgment of possession and the effects of prescription upon a claim of 27 collateral heirs to be placed in possession of their interests in the property.

While single, Camille Alexander (Al-exandre) acquired a one-half interest in the property subject of this dispute. Later, after his marriage to Arcise Jacob, he acquired the remaining one-half interest in the same property. This one-half interest, therefore, was community property.

Camille Alexander died intestate on May 10, 1961. He was survived by his wife, Arcise Jacob Alexander. He had no descendants or ascendants. On January 6, 1964 his wife, Arcise, who had no forced heirs, died testate. She left all her property to Mr. and Mrs. Lawrence J. Keating, Sr., the parents of plaintiffs-appellees (Lawrence J. Keating, Jr. and Kenneth A. Keating) and plaintiffs-appellees’ ancestors in title.

The successions of Mr. and Mrs. Alexander were combined and settled in one proceeding. The judgment of possession that resulted was rendered May 28, 1964. After Lawrence J. Keating’s (a universal legatee) death, a judgment of possession (dated June 18, 1970 and amended April 12, 1971) placed his heirs in possession of all the property. This was also true of the judgment of possession (dated July 13, 1979) in Louisa Madere Keating’s succession.

On October 3, 1979 defendants, the 27 collateral heirs of Camille Alexander, obtained an ex parte order permitting the re-opening of the succession.. On February 7, 1980 they obtained an ex parte judgment of possession recognizing them as legal heirs of Camille Alexander and placing them in possession of his separate property — a one-half interest in the subject property.

On May 22, 1980 Lawrence J. Keating, Jr. and Kenneth A. Keating filed this declaratory judgment praying to be recognized as the owners of the entire property. The trial court found in favor of plaintiffs Lawrence J. Keating, jr. and Kenneth Keating. In its reasons for judgment, it found the May 28, 1964 judgment of possession, which resulted from the combining of Mr. and Mrs. Alexander’s successions, treated all the property as community. He held this judgment of possession placed Mrs. Alexander in possession of a one-half interest in her own right and of the other one-half interest as an heir under article 915 of the Civii Code. The court then stated that Mrs. Alexander’s universal legatees, Louisa Madere and Lawrence J. Keating, Sr., were placed in possession of Mrs. Alexander’s entire estate. The court also held the prescriptive statute R.S. 9:5682 was applicable and barred the collateral heirs’ October 3, 1979 suit to re-open the succession. From this judgment decreeing plaintiffs to be the sole owners of the property, the collateral heirs appeal. We reverse.

Our reversal is based upon an interpretation of the May 28, 1964 judgment of possession. The following paragraphs are pertinent:

IT IS ORDERED, ADJUDGED AND DECREED that Arcise Jacob, widow of Camille Alexandre (or Alexander) be, and she is hereby decreed to be the surviving spouse in community with the said Camille Alexandre (or Alexander) and, as such, entitled to the ownership of, and sent and put into possession of the undivided one-half (Va) interest of the said community property belonging to the said Camille Alexandre (or Alexander) and more fully described below.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the last will and testament of the deceased, Ar-cise Alexandre, in nuncupative form by public act before Clarence A. Frost, Notary Public, dated October 26, 1964, be registered and executed; that the administration of the decedent’s estate be dispensed with; that Louisa Madere, wife of/and Lawrence J. Keating, as universal legatees of the decedent be and they are hereby sent and put into possession of the decedent’s entire estate, there being no particular legacies due therein, and in particular of the following described property:
1. REAL ESTATE
A CERTAIN TRACT OF LAND, situated in the Parish of St. John the Baptist, on the left bank of the Mississippi River, measuring one half arpent, more or less, front on said river by 80 arpents, more or less, in depth; bounded on the upper line by property now or formerly belonging to Leon Vicknair and on the lower line by the property formerly belonging to Fergus Montegut (later Charles St. Martin, Jr.); together with the buildings and improvements thereon, and all the rights, ways, servitudes, privileges and advantages thereunto belonging or in anywise appertaining, including all rights to the batture or alluvial in front of the said tract of land.
LESS AND EXCEPT:
1) Lot sold to Ida Keating, wife of Henry Madere, registered in Conveyance Book 14, folio 203.
2) Lot sold to St. John the Baptist Parish School Board, regisfered in Conveyance Book 14, folio 267.
3) That portion of the above tract from L. & A. right of way to 80-arpent line sold to T.L. James & Co., Inc., registered in Conveyance Book 20, folio 466.
4) Lot sold to Laura Williams Brown, registered in Conveyance Book 32, folio 263.
5) Lot sold to Medrick Williams, registered in Conveyance Book 34, folio 50.
6) Lot sold to Jessie Grant, et al., registered in Conveyance Book 34, folio 102.
7) Lot sold to Frank Dickson, registered in Conveyance Book 34, folio 499.
8) Lot sold to Anderson King, registered in Conveyance Book 35, folio 499.
9) Lot sold to Raphield Warren, registered in Conveyance Book 38, folio 339.
10)Lot sold to Levy Miller, Jr., registered in Conveyance Book 43, folio 159. 2. All of the furnishings and fixtures located in the above described property.... (Emphasis added)

The first paragraph (quoted above) limits the property Arcise Jacob Alexander owned and could bequeath to her universal legatees, Louisa and Lawrence Keating. It places Mrs. Alexander in possession of a one-half interest in the community property belonging to her husband, Camille Alexander. Since the community owned only one-half interest in the subject property, only that one-half interest in the property is affected by the judgment of possession.

In the second' paragraph (quoted above) Mrs. Alexander’s universal legatees were put in possession of “decedent’s entire estate" which includes only a one-half interest in the described property. Thus, this judgment of possession correctly places Louisa Madere Keating and Lawrence J. Keating in possession of Arcise Alexander’s interest in the subject property which was only a one-half interest in the whole. However, subsequent judgments of possession did incorrectly place the various Keating heirs in possession of the whole of the property.

The first judgment of possession, which the Keatings’ title to the entire property hinges, was presumably registered in the conveyance records of St. John the Baptist Parish on June 18, 1970; the ten-year prescriptive period provided for in La. R.S. 9:5682 (as amended in 1975) began to run from that date. Camille Alexander’s collateral heir’s ex 'parte motion to re-open his succession, which was filed October 3, 1979, was timely, and their February 7, 1980 ex parte judgment of possession is, therefore, upheld.

For the reasons assigned, the judgment of the trial court decreeing Lawrence J. Keating, Jr. and Kenneth A. Keating as owners of the subject property is reversed and defendants, 1) Douglas A. Cambre, 2) Mrs. Carol Cambre Watts, 3) Michael Cam-bre, 4) Stanley Cambre, 5) Roger Duhe, Jr., 6) Mrs. Brenda Duhe Stephens, 7) Gwen Duhe Breaud, 8) Roy Duhe, 9) Douglas Cambre, 10) Doris Cambre, 11) Foster Cam-bre, 12) Mrs. Hilda Jacob Keating, 13) Nolan Jacob, 14) Herman Jacob; 15) Gene Ryan, 16) Allan (Allen) Ryan, 17) Malcolm Keating, 18) Donald Keating, 19) Terry Keating, 20) Mrs. Maizie Keating Abadie, 21) Sherry Alexander, 22) Norman Alexander, Jr., 23) Robert (Boggie) Alexander, 24) Charles D. Alexander, 25) Mrs. Carolyn Alexander Michel, 26) Daniel Alexander, Jr., and 27) Lester Alexander are decreed the owners of a one-half interest in the subject property. It is further decreed that Lawrence J. Keating, Jr. and Kenneth A. Keating are owners of a one-half interest in the subject property.

REVERSED.

BOWES, J., dissents.

BOWES, Judge,

dissenting.

I respectfully dissent from the majority opinion. I would affirm the judgment of the trial court.

While I agree with the majority finding that LSA R.S. 9:5682 (as amended in 1975) is the controlling statute as to prescription in this case, I cannot agree with their interpretation of the May 28, 1964 Judgment of Possession.

The successions of Mr. and Mrs. Camille Alexander were settled in one proceeding. In this judgment of possession, rendered and signed on May 28, 1964, Mrs. Alexander, under the provisions of Louisiana Civil Code article 915 and in the absence of descendants or parents, was recognized as “the surviving spouse in community with the said Camille Alexandre (or Alexander) and, as such, entitled to the ownership of, and sent and put into possession of, the undivided one-half interest of the said community property belonging to the said Camille Alexandre (or Alexander) and more fully described below.” (emphasis supplied) What is “described below” is the property in its entirety.

In the same judgment of possession in the following paragraph, Louisa Madere, wife of, and Lawrence J. Keating (Sr.), parents of the plaintiffs, were recognized as universal legatees of Mrs. Alexander and were placed in possession of “... decedent’s [Mrs. Alexander’s] entire estate_ and in particular of the following described property:”. Thereafter is a description of all of the property, being the identical description of the property that is “described below” in the preceding paragraph. This is the same and only description entitled “Real Estate” in the entire judgment of possession.

Erroneous as it may have been at the time, all of the property was treated as community and Mrs. Alexander was recognized as owner of and placed in possession of all the property owned by Camille Alexander as the only heir of her deceased husband under Article 915 of the Civil Code, supra, (repealed in 1981).

A true copy of this judgment, which was introduced in the trial court as Exhibit “D”, contains the following notations: “5-28-64 C.O.B. 50, folio 524 #27493.” The trial judge held, and I agree, that these notations are sufficient proof of registry and show the judgment of possession was registered in the conveyance records of St. John the Baptist Parish the same day it was signed, on May 28, 1964, at entry number 27493, in Conveyance Office Book 50, folio 524.

After the deaths of Mr. and Mrs. Lawrence J. Keating, the universal legatees of Mrs. Alexander, the property devolved upon their three children; and, after the death of one of the children, the other two (plaintiffs herein) were eventually placed in possession of all of the property.

On October 3, 1979, eighteen years and five months after the recordation of the judgment of possession in the Succession of Camille Alexander, defendants obtained an ex parte order permitting the re-opening of the succession and, on February 7, 1980, obtained an ex parte judgment of possession recognizing them as legal heirs and placing them in possession of a one-half interest (presumably that interest acquired by Mr. Alexander while he was single) in the subject property.

On May 22, 1980, plaintiffs filed the instant suit, praying for a declaratory judgment recognizing them as owners.

I find that the judgment of possession on which the plaintiffs’ title hinges was registered in the conveyance records of St. John the Baptist Parish on May 28,1964, and the 10-year prescriptive period (under the original version of R.S. 9:5682, which was passed in 1960, and which requires “good faith” possession) expired May 28, 1974, more than five years before the defendants sought to re-open the succession of Camille Alexander.

In my opinion, the conclusion by the majority that the first judgment of possession on which the Keatings’ title to the entire property hinges is that judgment registered in the conveyance records of St. John the Baptist Parish on June 18, 1970, is based on erroneous reasoning. For prescriptive purposes, the Court must consider all legal proceedings involved in the chain of the Keatings’ title and the judgment of May 28, 1964, which described all of the property owned by Camille Alexander, is necessarily a part of one of these proceedings.

The reasoning employed by the majority allows them to “tailor” the facts to fit their conclusion that the applicable date for the start of the prescriptive period was June 18, 1970, instead of May 28, 1964. This, in turn, allows them to find that less than ten years (the' prescriptive period involved), rather than some eighteen years (which the trial judge found and with which I agree), elapsed since the plaintiff had been placed in possession of all the property in question. Hence, their conclusion that prescription had not run against defendants-appellants in 1979, when they filed their ex-parte motion.

Defendants are descendants of heirs of Camille Alexander who were not recognized as such in the judgment of possession signed on May 28,1964 in the succession of the said Camille Alexander. Plaintiffs acquired the property through someone (Mrs. Camille Alexander) who was recognized as an heir in his succession. Defendants’ claim should have been asserted within ten years of the registry of this judgment of possession (May 28, 1964) and it was proven at the trial that plaintiffs, or their ancestors in title, have been in continuous, uninterrupted, peaceable, public and unequivocal possession of the property in excess of ten years. Therefore, the action of the defendants-appellants in asserting a claim to the property involved herein and having themselves recognized as owners thereof in the ex parte judgment of possession dated February 7, 1980, was barred by the prescription established by L.R.S. 9:5682.

For the foregoing reasons, I would affirm the judgment of the trial court. 
      
      . Their sister, Marilyn Jones Keating, had previously died.
     
      
      . Initially, default judgments were confirmed against 12 defendants. After an appeal, Keating v. Cambre, 407 So.2d 787 (La.App. 4th Cir.1981), the judgment appealed from was annulled and set aside and the matter remanded to the trial court for further proceedings.
     
      
      . The incorrect judgments of possession are the following:
      Succession of Lawrence J. Keating, Sr. (father) —June 18, 1970 and amended judgment April 12, 1971.
      Succession of Marilyn Jones Keating (sister)— January 16, 1975.
      Succession of Louisa Madere Keating (mother) —July 13, 1979.
     
      
      . The notation of registry — C.B. 69/234 does not actually indicate a date unlike the notation found on the 1964 judgment of possession in the successions of Arcise Jacob and Camille Alexander.
     
      
      .Since the collateral heirs filed to re-open Camille Alexander’s succession on October 3, 1979, La.R.S. 9:5682 (as amended in 1975) has been repealed by Act 721 of 1981 and replaced by La.R.S. 9:5630; however, the provisions of La. R.S. 9:5682 apply. See Harlaux v. Harlaux, 426 So.2d 602, 603 (La.1983); Jackson v. D’Aubin, 338 So.2d 575, 581-82 (La.1976); Succession of Kinchen, 391 So.2d 1278, 1280-81 (La.App. 1st Cir.1980).
      La.R.S. 9:5682 provided in pertinent part:
      A. 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, irrespective of the good faith or bad faith of the third person’s ancestors in title, including the heir or legatee of the deceased recognized as such in the judgment of possession.
      
        
      
      C. 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.
     