CHRIS T. BARNETTE, Judge pro tem.
This proceeding is a sequel to Dugas v. Powell, 228 La. 748, 84 So.2d 177 (1955). That case finally decided by the Supreme Court, November 7, 1955 (rehearing denied December 12, 1955), after nearly 20 years of litigation, recognized the heirs of Francois Zenon Boutte to be the owners of a certain tract of land, comprising approximately 400 acres in Jefferson Parish on Barataria Island. The heirs, so recognized, were the collateral descendants of Francois Zenon Boutte and numbered more than a thousand.
From 1955 until the instant proceeding was filed, the attorneys who had represented the Boutte heirs to a successful conclusion of their title litigation apparently took no further steps in their behalf. Other persons, however, some of whom are intervenors herein, busied themselves in locating and obtaining contracts and powers of attorney from the numerous collateral descendants of Francois Zenon Boutte to assist them in establishing their rights of inheritance and to assist in obtaining development of the property through mineral leases.
In 1952, Act 513 (LSA-R.S. 30:181-30:188) was enacted by the State Legislature for the purpose of making possible a valid mineral lease in a situation such as this. The events leading to the passage of Act 513 of 1952 are fully discussed in Louisiana State Mineral Board v. Abadie, 164 So.2d 159 (La.App. 1st Cir. 1964). Some of the parties involved in that case are also involved in the instant case.
Act 513 of 1952 was repealed in part and amended by Act 358 of 1960. The lease with which we are concerned was executed before passage of the 1960 Act. The later act affects the method of distribution of funds. Act 513 of 1952 provided in substance that when 500 or more persons own property in indivision, upon petition of 50 or more of them the State Mineral Board shall advertise the property for lease for mineral development in the same manner and according to the procedure required for lease of state-owned land.
Pursuant to the provisions of this act, the Mineral Board, on February 24, 1960, granted an oil, gas and mineral lease covering said property to the California Company. By the terms of the lease a bonus of $103,753.67 was received for the benefit of the Boutte heirs. Since then some additional payments have been received as royalty or interest.
The State Mineral Board refused to deposit the money held by it for distribution among the heirs as provided by Act 513 of 1952 until ordered to do so by the court. Its refusal was based upon its interpretation of Act 358 of 1960. Thereupon Charles C. Jaubert, attorney at law, claiming representation by contract of 151 Boutte heirs, brought a mandamus proceeding against the State Mineral Board in the Nineteenth
We cannot commend too highly the able judge of the trial court for the thorough and painstaking manner in which he undertook to determine the collateral heirs of Francois Zenon Boutte, who had been dead a hundred years. It is interesting to note that when Dugas v. Powell, supra, was before the Supreme Court there were some 1079 listed heirs. In this proceeding below, some 3500 persons claimed to be collateral descendants of Francois Zenon Boutte. The judgment below recognized 1830 heirs and computed their respective interests in the estate to extremely minute proportions. The trial record is voluminous and confused with numerous pleadings and conflicting claims.
Some of these interests, computed on the basis of $100,000.00, are as little as 11 cents and relatively few exceed $100.00. The unusual nature of this proceeding and the practical aspects being considered, many ordinary rules of trial and procedure were relaxed of necessity, and as intended by Act 358 of 1960 (LSA-R.S. 30:187), to the end that a just and practical conclusion could be reached. We find no error in the manner in which the trial below was conducted.
There is no appeal from that portion of the judgment which recognizes the 1830 heirs of Francois Zenon Boutte and fixes the proportionate interest of each in the estate, of which the mineral rights, making possible the above fund on deposit in the registry of the court, are the principal asset.
We have before us for consideration only the claims of the intervenors who have appealed or answered the appeal.
The intervenors, who claim an interest and right to share in the fund on account of various alleged contracts, powers of attorney, and assignments as fees and compensation for services rendered, and the substance of their claims are as follows:
We think the first and most important question to be decided is whether the "fund doctrine" should be applied and made available to the intervenors or any of them.
The so-called "fund doctrine" based on the application of the equitable principles of unjust enrichment and quantum meruit was accepted and cautiously applied by our Supreme Court in In re Interstate Trust & Banking Company, 235 La. 825, 106 So.2d 276 (1958). After first rejecting the doctrine, on rehearing the Court said at p. 280 of 106 So.2d:
After reviewing the jurisprudence of this state and considering the application of the doctrine by the United States Supreme Court and other Federal Courts (citing cases), the Court concluded in In re Interstate Trust & Banking Company, supra, at p. 282:
The Court then held that the attorneys had brought themselves within the scope of the doctrine.
More recently the fund doctrine was applied in favor of an attorney in Louisiana State Mineral Board v. Abadie, supra. A careful analysis of the opinion in that case shows that the Court was very emphatic that there would have been no lease; that there would have been no fund; that the land held in common by the Gonsoulin heirs might have remained in their undivided ownership "ad infinitum and the fund in question would not and indeed could not have accrued, existed or come into being until and unless the property were leased for mineral development." The Court said at p. 167 of 164 So.2d: "It is clear beyond doubt the fund in question exists because it was made possible by Act 513 of 1952." The Court gave full credit to the attorney through whose efforts, tenacity and professional skill alone the act was passed to make the fund possible and said at p. 168:
Applying the test set out in the Interstate case and as interpreted in the Abadie case, it is our opinion that none of the intervenors in the instant case can qualify for the application of the fund doctrine. Accordingly we hold that none of them have shown a cause or right of action against the common fund.
We concur in the opinion expressed by the able trial judge in his "Findings of Fact and Conclusions in Connection with Judgment" regarding some of the intervenors and in particular, in regard to the attorneys, Reed, Richardson, and Voyles, wherein he said:
At this point we must agree with the Court in the Abadie case wherein it said at p. 167 of 164 So.2d:
We also concur in the following statement of the trial judge:
Authority to support the foregoing conclusion is found in Louisiana State Mineral Board v. Abadie, supra, wherein the Court said at p. 166 of 164 So.2d:
The Court did make an exception of the foregoing rule in the Abadie case because of the unusual facts presented. The facts in this case do not justify a departure from the general rule.
The court below did not try the issue of validity of the numerous (more than a thousand) purported contracts, powers of
This interpretation seems logical, but we hardly think the trial court meant to do this as to all intervenors. To remove any doubt of our intention, we will attempt to state our opinion clearly.
While we have held that the intervenors cannot invoke the application of the fund doctrine, and hence have no right of action against the common fund, we recognize the right of those who hold contracts of assignment of an interest in the land or to a portion of the pro rata of the fund allocated to the heirs respectively who have executed such assignments. To this extent the intervenors who meet this qualification have a right to participate in this concursus proceeding. An assignment by an heir of a portion of his share in the estate, or fund, entitles the assignee to participate in the division of the estate, or fund, to that extent. But a claimant who holds a contract or power of attorney containing an obligation for payment for services rendered, short of an assignment of an interest in the property or in the fund, is relegated to the ordinary process for enforcement of his contract. Dixie Homestead Ass'n v. Redden, 210 La. 789, 28 So.2d 271 (1946); Madison v. Sun Life Assur. Co. of Canada, 191 So. 336 (La.App. Orleans 1939); In re Employers' Liability Assur. Corporation, 180 La. 406, 156 So. 447 (1934). See also Dixie Homestead Ass'n v. Redden, 21 So.2d 194 (La.App. Orleans 1945), set aside by the Supreme Court on a point of fact.
Intervenor Charles C. Jaubert is not properly before us on appeal for the reason above stated. We find it necessary, however, to comment on his position in the case. He did render significant service, from which all the heirs have benefited, by bringing the mandamus action against the Mineral Board resulting in the deposit of the fund in the registry of the court for concursus. He did not create the fund, nor bring it into existence. It might have remained in indivision in the hands of the Mineral Board indefinitely without loss to the heirs. For the reasons above stated he cannot invoke the fund doctrine, notwithstanding that all the heirs have benefited indirectly by his successful action.
In the trial judge's "Findings of Fact and Conclusions in Connection with Judgment" he said:
The judgment, after recognizing the 1830 heirs in their respective proportions, continues as follows:
The foregoing rejection of claims of the intervenors, with the exclusion of Mr. Jaubert from those named, when read in connection with his specific pretermission of Mr. Jaubert's personal claim in his "Findings of Fact and Conclusions in Connection with the Judgment," cannot be construed as a judgment rejecting or otherwise disposing of Jaubert's intervention. The second above-quoted paragraph of the judgment obviously refers to the 1700, more or less, claimants to participation as heirs in the Boutte estate who were rejected. The Jaubert intervention is still pending adjudication in the trial court and is not before us on appeal. Authority for this procedure is found in LSA-C.C.P. art. 1915.
Pleas of prescription were filed on behalf of numerous heirs against the intervention of the A. H. Reed heirs, E. Leland Richardson, and Jack Voyles. As noted by the trial judge these attorneys rendered valuable service from which all the heirs of this estate have benefited, but for the reasons above given, they cannot be brought within the application of the fund doctrine.
We concur in the opinion of the trial judge that the attorneys, A. H. Reed (represented herein by his heirs), E. Leland Richardson, and Jack Voyles (and especially A. H. Reed), rendered a valuable service in establishing the ownership of the land in the estate of Francois Zenon Boutte and that this service inured to the benefit of all the heirs. It is regrettable that they failed from December 12, 1955, to January 14, 1963, to assert their claim for attorneys' fees or take any action to interrupt prescription. LSA-C.C. art. 3538. In the trial judge's "Findings of Fact and Conclusions in Connection with Judgment" he said: "It is indeed with reluctance that the Court is compelled to conclude that the claims of intervenors [Reed heirs, Richardson, and Voyles] have prescribed and no longer may be enforced." In the judgment (above quoted in part) they are named specifically among the intervenors whose interventions were rejected. From the trial court's statement that their claims had prescribed, we assume the judgment of rejection is based on prescription. If this assumption is correct, we cannot concur in that part of the judgment.
Apparently the trial court was of the opinion that except for their claim having prescribed these intervenors could have invoked the fund doctrine. For the reasons above given, we are of a different opinion. Therefore, for this reason, there was no need to pass on the pleas of prescription to reject these intervenors' claims under contract or implied contract to a share of the total fund.
In the second place the defense of prescription is a personal plea and must be specifically pleaded by each heir in whose favor it applies. It may be pleaded for or on behalf of an heir by one authorized to do so, such as an attorney.
We have not attempted, indeed it would be impossible to determine from the record before us, exactly which heirs, personally or through attorneys, have pleaded prescription. It is obvious that some of them have not. Furthermore, in his capacity as agent and attorney in fact, Alvin A. Cobb, an intervenor, has pleaded or attempted to plead prescription for some 968 heirs alleged to have, by their powers of attorney, clothed him with authority to do so in their behalf. His powers of attorney
Intervenor F. C. Gandolfo, Jr., bases his claim upon an alleged verbal contract with Alvin A. Cobb for payment of $5,500.00 for a survey. Whether or not Cobb acted individually or as agent and attorney in fact for 968 heirs is unimportant. At most the alleged obligation is due for the payment of a sum for services rendered and is not an assignment of an interest in the land or fund to entitle Gandolfo to a right of participation in this concursus proceeding. The judgment below rejecting his intervention but reserving to him any right he may have under private contract with Alvin A. Cobb is correct and must be affirmed.
Intervenor Ulysses Pierrottie's claim is based upon an alleged obligation to pay for services rendered over many years. He asks $47,178.64 which he attempts to justify by his testimony and a lengthy statement of expenses and services rendered. He seeks recovery in contract or quasi contract on quantum meruit. He did not allege nor offer proof of an assignment of interest in the land or fund on deposit.
We have searched the record in vain to find some evidence or clue to prove an assignment of a portion of the fund to Mr. Pierrottie. His petition of intervention (Vol. I, p. 104 of the record), in which he makes claim in a capacity other than his capacity as an heir, recites in brief the nature of the services rendered for the Boutte estate and concludes with a prayer for a judgment of $47,178.64 for himself and $4,000.00 for Felix Pierrottie in addition to their share as heirs. There is no allegation of contract or assignment of interest.
On trial below Mr. Pierrottie filed in evidence two instruments identified as P-1 (Vol. II, p. 439) and P-3 (Vol. III, p. 537), P-1 being a supplement to P-3 executed at a later date and refers to P-3 executed November 10, 1938. These instruments purporting to have been signed by numerous heirs are nothing more than powers of attorney, empowering him (and Felix Pierrottie to institute suits and in general do all things necessary to recover the property, to grant mineral leases, etc. Neither of these instruments recites any consideration for the services rendered, nor do they purport to make any assignment of interest to either Ulysses or Felix Pierrottie. The instrument identified as P-3 executed November 10, 1938, contains the following paragraph which is of significance as we shall point out below:
Furthermore, in brief filed in behalf of appellant Pierrottie in this Court he makes no claim of an assignment but says:
His contention is based upon contract and he refers particularly to P-3, but his argument
Pursuant to a directive of the trial judge, Mr. Pierrottie's attorneys sent a mineographed inquiry to the persons purporting to have signed the power of attorney to Mr. Pierrottie to verify signatures. That inquiry contains the following:
Obviously Mr. Pierrottie has not alleged nor does he claim to hold an assignment of interest in the land or the fund and has not shown a right to participate as an intervenor in the concursus proceeding. The judgment rejecting his intervention but reserving his rights under private contract or power of attorney is correct and must be affirmed.
Intervenors A. H. Reed, E. Leland Richardson, and Jack Voyles have made claim for payment of attorneys' fees. The initial intervention by A. H. Reed claimed employment by the plaintiffs (the Francois Z. Boutte heirs) in Dugas v. Powell, supra, and alleged contract, "express or implied," which entitled him to an attorney's fee in a "sum equal to one-third" or in the alternative a reasonable fee. By supplemental petition, attorneys E. Leland Richardson and Jack Voyles were joined as co-intervenors with him and pray for a just proportion of the fee in the amount to be fixed by the court commensurate with services rendered. They claim no assignment of interest which would entitle them to participate in this concursus proceeding except such as might have been made to A. H. Reed with whom they became associated as co-counsel.
The above-quoted paragraph from Mr. Pierrottie's power of attorney, filed in evidence as P-3, clearly indicates that the original attorneys who began the litigation in Dugas v. Powell, supra, had a contract which might have contained an assignment of interest. The attorneys referred to in P-3 (November 10, 1938) on November 14, 1938, employed attorney A. H. Reed to assist them as co-counsel. Shortly thereafter the following letter was written confirming this agreement:
Sometime thereafter the original attorneys either withdrew, changed sides, or lost interest in the litigation, but Mr. Reed continued almost single-handedly until he associated Richardson and Voyles as co-counsel and pursued the case to a successful conclusion.
The following instrument appearing on page 589 of Vol. III is significant:
On page 145 of Vol. I, attached to the petition of intervention of D. L. Martel, is an instrument dated July 26, 1938, signed by the original attorneys agreeing "to allow [Martel] an equal one-fourth (¼) of all attorneys fees recovered * * *" in consideration of Martel's financing the litigation in Dugas v. Powell, supra. This instrument is also filed in the record at page 591 of Vol. III.
All these instruments read together and considered in connection with the testimony in the trial court indicate that in the early stages of the litigation, the original attorneys had some kind of contract which might have purported to assign an interest in the property. None of the original attorneys have appeared herein. The Reed group has failed to prove any such contract or assignment and, having thus failed, their agreement with the original attorneys and among themselves is insufficient to support a claim by assignment in the land or fund.
We quote with approval a portion of the trial judge's findings of fact in reference
Intervenor D. L. Martel claims under a written contract with the attorneys (without naming them) of the heirs of Francois Z. Boutte "who had and held an assignment from said heirs equal to one-third (1/3) of all lands, moneys, minerals * *." He claims an assignment to him by them, the attorneys, to one-fourth of their one-third of everything recovered in consideration for his financing the litigation in Dugas v. Powell, supra. Mr. Martel is mentioned in the foregoing instruments and to the extent that the original attorneys did agree with him as he alleged, these instruments verify his allegations. However, for the reasons above stated, they are not sufficient to sustain his intervention.
Therefore, intervenor Martel, having offered no proof of an assignment of interest in the land or the fund, the judgment rejecting his intervention with reservation of rights under his private contract is correct and must be affirmed.
Intervenor A. J. Vigneaux, representing Ernest J. Vigneaux, also based his claim to an interest in the fund on the agreements discussed above. For the reasons above given, the judgment rejecting his intervention was correct and must be affirmed with reservation of rights under private contract.
Intervenor Alvin A. Cobb claims 30 percent of that portion of the fund on deposit which has been allocated to an alleged 968 heirs from whom he claim powers of attorney and contracts of assignment of interest. He claims against all the remaining heirs compensation for services rendered for their benefit on quantum meruit. For the reasons above stated he cannot invoke the fund doctrine and cannot recover from any heir from whom he has no specific contract.
As pointed out above, Mr. Cobb did not appeal but answered the appeal taken by other intervenors. The judgment below recognized 1830 heirs entitled to share in the Boutte estate in the respective proportions opposite each name. These heirs have not appealed. If this were an ordinary suit in which Cobb's claim was directed against these heirs, he could not now bring them into this Court on appeal by answer to the appeal of the other intervenors
It is evident that numerous heirs have contracted with Mr. Cobb and did assign to him 30 percent of all their interest in the estate, including this fund. How many and precisely who they are, we cannot determine from the record before us.
Brought up with the record are several large volumes purporting to contain Mr. Cobb's contracts. They have not been identified nor otherwise proven. Many of them are challenged and many appear to refer to the Jean Baptiste Boutte estate.
It appears, therefore, that Mr. Cobb is entitled to participate in this concursus proceeding under the contracts of assignment which purport to entitle him to a share of the fund, and the judgment rejecting his intervention is in error.
The intervention of Charles C. Jaubert, which was not adjudged and is not before us on appeal, and which is still pending in the District Court, is based upon an assignment by an alleged 151 heirs of 20 percent of their interest in the fund accruing before April 15, 1961, and 30 percent thereafter. He should be given an opportunity to establish his claim in the trial court.
It is our opinion that upon proper proof, identification, and verification of the contracts of assignment under which intervenors Charles C. Jaubert and Alvin A. Cobb respectively claim a share of the fund on deposit that judgment should be entered in their favor accordingly in this concursus proceeding. Further it is our opinion that said judgment should direct the custodian of the fund in the registry of the court to make payment to them direct of the aggregate amount due each of them respectively of the sums withheld from the shares allocated to the heirs so obligated to them.
The judgment appealed from rejecting the intervention of Alvin A. Cobb is reversed and set aside and the case remanded for further proceedings on said intervention in accordance with the views herein expressed. The judgment rejecting the interventions of Ulysses Pierrotti (Pierrottie), F. C. Gandolfo, Jr., A. H. Reed (or his heirs), E. Leland Richardson, Jack Voyles, D. L. Martel, and Antoine Joseph Vigneaux are affirmed with express reservation to them of all rights under contracts of employment or powers of attorney. The judgment appealed from having not adjudicated the intervention of Charles C. Jaubert his rights thereunder are reserved without prejudice subject to further proceeding in accordance with the views herein expressed.
In all other respects the judgment appealed from is affirmed; costs of this appeal to be paid by all appellants except Alvin A. Cobb.
Affirmed in part; reversed in part; and remanded.