
    Court of Appeal -- Parish of Orleans
    James Gaskins, et als versus Otere Marshall, et al.
    Nos. 7701
    7702
    Consolidated.
    By Dlnkelsplel, J.
   Blnkelsplel, J

This is an action brought by James Gaskins and others named In the petition olalmlng to be the true and lawful owners of the following described property!

"A certain tract of land situated in the Parish of St. 'James on the left bank of the Mississippi River, and ■about S5 miles above the City of Mew Orleans, measuring 58 feet in width fronting on said River, by a ■depth of 65 arpents, more or less, bounded above by ■lands formerly belonging to «llllam Tenue, and below ■by land now or formerly belonging to Ben Jacobst be-■lng one-third portion of a larger tract aoqulred by ■Lea Gaskins from Floretan Sohexnayder by act passed ■before Louis Bugas, Rooorder of the Parish of St. ■James, on the 6th of January, 1876, reoorded la ■Miscellaneous Acts 1874-1877, folio 3f8, of the reoords ■of the Parish of 8t. James."

These pSttloners set up their ownership to the property described above as the duly recognised heirs of Lea Gaskins, a former owner of said property, making part of their petition the record in the Succession of Lea Gaskins, whioh shows that the said James Gaskins, and his oo-helrs named In the proceedings, were by ex parte judgment,rendered and signed da ohambers on the 14th day of February, 1917, by the Judge of the 37th Judicial Dlstrlot Court, reoognised ae the sole heirs of the said Lam Gaskins, and as suoh sent Into possession in the proportion set out la said ex parte judgment, of the property which Is the subject of this suit*

This suit Is dlreoted against Otere Marshall, (or Mars) Adam Bourgeois, James Priestly, Louis Thersnoe, Jr., and Tllliam Tureaud, mode joint defendants, and who it Is alleged are In actual physical possession eaoh of different portions of the above desorlbed property without title thereto and without right to remain In possession thereof.

They further contend that the said defendants refused to deliver possession of the property to them and pray for judgment recognizing plaintiffs as the true and lawful owners of the said property and that they be sent into possession thereof in the proportions set out in the suo-oession proceedings referred to.

The defendants, Louis Therenoe, Jr., and James Priestly, never having been oited or In anywise entered Into these proceedings, are not parties thereto. The other defends ants filed exceptions of misjoinder of parties and vagueness, which being overruled and not now Insisted on, subsequently filed answers, and the answers of Marshall and Bourgeois involving questions identical to be deoided in this case.

Adam Bourgeois, one of the defendants, admits in his answer that he is in the actual physical possession of the following desorlbed property, to-wlt:

*A portion or lot of ground situated in the Parish ■of St. James on the left bank of the Mississippi ■River, about 55 miles above the City of New Orleans, ■measuring 36.feet front faoing the Mississippi River, acres ■and two wywtt in depthy bounded in front by the ■land of Marshall and in the rear by lands formerly ■belonging to Lem Gaskins, and above by lands belonging to William Tenue, and below by lands belonging ■to Sam Jones. ■

Be further avers that the above desorlbed property was purchased by him in good faith for value from Caroline Sheppard, Widow of Lem Gaskins, and that he haB been in actual physloal possession of same continuously, personally, and publioly for over twenty yearB, which posseasion aa above set out is admitted by plaintiff.

He further sets up in support of his ovrnershlp the pre-soription of ten years aoquirendi oausa. whioh plea of prescription was maintained by the judge a quo.

Otere Marshall (or Mars), the other defendant, also asserts actual and physical possession of the property sought to be recovered by plaintiffs, whioh property is described as follows:

"A portion of ground situated in the Parish of St. "James on the left bank of the Mississippi River, "about 55 miles above the City of Hew Orleans, measuring two acres in length, bounded in front by the "property of Ed. Green, and in the rear by that of Tureaud, "Adam Bourgeois, above by lands of Soxx, and below "by lands of Ben Jacobs."

By admissions filed by both counsel of reoord in this case it is agrBed that the property quoted above does not inolude all of the property which was aoqulred by said Marshall from Caroline Sheppard, and in order to definitely fix a desoriptlon of the property, ownership of whioh is olalmed by Marshall, it was agreed that in the event his plea of prescription was maintained by this Court, that the desoriptlon of the property should read as follows:

"A portion of ground situated in the Parish of St. "James on the left bank of the Mississippi River, "about 55 miles above the City of Hew Orleans, meas"uring two aores in length by 36 feet in width, to "be measured from the railroad track, and bounded in "front and in the Bear by other lands of said vendor, "and above by lands of William Venus, and below by "lands of Sam Jones; also a certain other lot or por"tion of ground situated in the Parish of St. James "on the left bant of the Mississippi River, at about "55 miles above the City of Hew Orleans, faoing the "River, by a depth of about 1 aore, bounded on the "front and on the lower side by other lands of said "purohaser, Otere Marshall, and above by lands of WWilliam Venus, and in the rear by a lot of ground of "Adam Bourgeois."

And to both of these properties a plea of prescription of ten years aoquirendi pausa was urged also by Marshall.

It is admitted by counsel for plaintiffs that there is no doubt that these defendants have been in aotual oor-poreal possession of their respective properties olaimed by them for over ten years, but they urge that in order to support the ten years prescription there must be a deed accurately describing and looating the lands, whioh is laoking in this oase.

In our opinion this claim is not well founded or supported by the evidenoe found in this record, for whilst it is true that no survey was made at the time of these respective sales to determine the exaot locations of the properties in question in reference to the whole traot of which they originally claim a part, the fact nevertheless remains that the descriptions made were sufficient to enable both of these defendants to take physioal possession of same, build their homes thereon, and to remain in possession thereof from the dates of their respective purchases up to the time of filing this Buit, now more than twenty years.

re are therefore of the opinion that the defendants Otere Marshall (or Mars) and Adam Bourgeois have oomplied with all of the provisions of our law whioh enables them to retain possession as owners of the properties olalmed by them under their pleas of proscription of ten fears aooulrendl pausa as urged by them. C. C. Art. 3478, 3479, 3481, 3482, 3485, 3486. Also see case of Jordan v. Richards, 114 La. 329; Bennett v. Calmes, et als, 116 La. 599.

The other defendant, Mrs. Agnes Therenoe, wife of Louis Therenoe, who was oalled in warranty by William Tureaud, sets op ownership to that portion of the property held by her, alleging that being in possession of same, it was encumbent upon plaintiffs to prove their ownership as heirs of Lem Gaskins, as olalmed by them, whioh ownership is speoifioally denied by her.

It is true that this defendant in her answer denies that plaintiffs are the legal heirs of said Lom Gaskins, and that as suoh heirs they are entitled to the property now in her possession in the proportions set up by $hem, but no evidenoe was offered In her behalf to sustain that olalm, whilst the plaintiffs' olalm Is based upon ths Judgment of the 37th Judióla! Distriot Court for ths Parish of St. James, as shown by the reoord in the Succession of Lem Gaskins, being Wo. 3096 of the dooket of said Court, whioh judgment and reoord were offered in evidenoe ok/ by plaintiffs hereto an-yneld by our Court, In ths absence of necessary proof, must be recognized as rendered. Glover v. Doty, 1 Rob. 130.

In so far as ths olalm of Mrs. Agnes Therenoe to this property based upon her heirship as natural heir of her mother, Mrs. Caroline Sheppard, the widow in necessitous oiroumstanoes of the deoeased, Lem Gaskins, and lnasmuoh as the said Caroline Sheppard took no proceedings as widow In necessitous olroumstanoes to have the property herein olaimed judicially tranaferred to her, the olaim to thia property now made by thia defendant, on thia ground, oan not he maintained. Warner, et al v. Hall & Logan Lbr. Co. Ltd., 121 La. 82.

Defendant lira. Therenoe alao olalma ownerahip to one-half of thia property aa having been inherited by her from her deceased mother, Caroline Sheppard, whom ahe allege» that at the' time of her death waa the widow in community of Lem Gaskins. The reoord, however, does not disclose that Mrs. Caroline Sheppard was the widow in oommunity of her predeceased husband, Lem Gaskins, in so far as this property ie oonoerned; on the oontrary, the reoord shows that the property in question was acquired by Lem Gaskins in 1876, whilst his marriage with the mother of this defendant did not take plaoe until 1893, sixteen years thereafter.

The last olaim set up by this defendant is, that in any event she is entitled to one-fourth of this property, same being the marital fourth aoqulred by her mother, Caroline Sheppard, at the death of Lem Gaskins, and subsequently inherited by defendant herein at the death of her mother.

This question has been passed upon by our Court on more than one oooasion, and it is now well established by the jurisprudence of this State that the marital fourth is not a vested right, nor is the surviving spouse an heir to same, nor is she entitled to s£me as an inheritance. Succession of Rogge, 50 Ann. 1228; Succession of Justice, 44 Ann. 721.

for the reasons assigned, it is ordered, adjudged and decreed that the property olaimed byOtere Marshall (or Mara), under the plea of preaoription of ten years aoqul-rendl oauaa aet up hy him be sustained, and he is hereby deoreed to be the owner of seme, and as suoh ovrner be maintained in possession of said property as follows:

"A certain lot of ground situated in the Parish of St. "James on the left bank of the Mississippi River, at "about 55 miles above the City of Hew Orleans, measuring S aores in length and 36 feet in width, to be "measured from the railroad track:, and bounded in "the front and rear by other lands of the said vendor, "above by lands of William» Venus, and below b'y lands "of Sam Jones,"

and

"A oertain lot of ground situated in the Parish of St. "James on the left bank of the Mississippi River, at "about 55 miles above the City of Hew Orleans, measuring 36 feet front facing the said River, by a depth •of 1 aore, bounded in front and on the lower side by "the other lands of said purchaser, Otere Marshall "(or Mars), above by lands of William Venus, and in "the rear by a lot of ground of Adam Bourgeois."

It is further ordered, adjudged and deoreed that the property olalmed by Adam Bourgeois by the prescription of ten years aoauirendi oauaa set up by him, the defendant in suit, be maintained, and that he, Adam Bourgeois, remain in possession as owner of said property as follows

"A portion or lot of ground situated in the Parish of "St. James on the left bank of the Mississippi River, "About 55 miles above the City of Hew Orleans, meaaur-"lng 36 feet facing tho Mississippi River, and 3 aores "in depth, bounded in front at by the lands of Otere ■Marshall (or Mars), and in the rear by lands formerly •belonging to Lam Gaskins, and above by land» belonging to William Venus, and. below by lands belonging ■to Bam Jone»."

It is further ordered, adjudged and decreed that the petition of James Gaskins, et als, plaintiffs herein, be recognised as the ownere of that portion of the property now olalmed by Agnes Therenoe, wife of Louis Therenoe, be maintained, and the claim of said Agnes Therenoe as owner of said property be and is herewith rejeoted.

It is further ordered, adjudged and deoreed that the said James Gaskins and others named in the petition herein be sent into possession of the property olalmed by Agnes Therenoe, as the owners thereof, in the proportions as set out in the judgment of the 3Bth Judioial District Court for the Parish of St* James in the matter of the Suooesslon of Lem Gaskins, being No. 3096 of the dooket of said Court.

The oosts in the case of Otere Marshall (or Mars) and Adam Bourgeois to be paid by plaintiffs and appellants, and the costs in the oase of Agnes Therenoe, wife of Louis Therenoe, to be paid by her.

Judgment amended and affirmed.  