In this petitory action, the court of appeal affirmed the judgment of the trial
Writs were granted because of doubts as to the interpretation of the "ancient documents" statute, R.S. 13:3728-3730.
Plaintiffs are the heirs of Lassaline P. Briant; defendants are the assignees and mineral lessees of James and Alcide Owens. The property involved is an undivided interest in:
Neither plaintiffs nor defendants are in possession of the property, which apparently became swamp land shortly after the civil war. The issue, therefore, is: have the plaintiffs shown a better title to the land than the defendants?
C.C.P. 3651 and 3653 describe the petitory action as follows:
Art. 3651. Petitory action
Art. 3653. Same; proof of title
The Ancient Document
Plaintiffs' claim to title is based on a sheriff's deed dated January 1, 1870 and recorded on the fourteenth day of the same month, purporting to convey the property to Lassaline P. Briant. The name of the vendee, Lassaline P. Briant, is written over another name in the instrument; the other name, almost obscured, can be determined to be "Miss Valerie Fournet". (The proces verbal of the sheriff's sale recited that Miss Valerie Fournet was the vendee, and that L. P. Briant and Z. T. Fournet were her securities for the payment of the price of the 12-months credit sale.)
The deeds, of course, were written in pen and ink, and the record shows that Briant's name was superimposed over Valerie Fournet's in Briant's own hand, that the balance of the deed was not written in Briant's hand; that Briant, himself a deputy clerk, "filed" the proces verbal on January 10, 1870; that the sheriff's deed was "recorded" by another deputy recorder on January 14, 1870.
R.S. 13:3728-3731 provide:
3729. Same; definition
3731. Same; admissibility of copies
The court of appeal properly held that the statutory presumption of genuineness of ancient documents is not conclusive, and is rebuttable. However, because the instrument contains a "material alteration" (the change of the name of the vendee from Fournet to Briant) "(t)he burden thus shifted to plaintiffs, who rely on that deed to prove that the alteration was made prior to delivery of that document, and that it was made with the consent of the parties." 308 So.2d 464, 471. This interpretation seriously impairs the efficacy of the ancient documents act.
In the absence of statutes, many American jurisdictions have formulated theories for establishing the authenticity of writings by circumstantial evidence. Documents can be sufficiently authenticated by proof of 30 years age, unsuspicious appearance, and proof of production from custody natural for such documents. Sec. 223, McCormick, Law of Evidence, 2d ed., West Publishing Co. Therefore, in the absence of our statute, the "material alteration" in the instrument would mean that it would not be authenticated without more direct evidence. Muehrcke v. Behrens, 43 Wis.2d 1, 169 N.W.2d 86 (1969).
Statutes in some states have couched their ancient documents rule in terms of rebuttable presumptions. For example, Oregon Revised Statutes 41, sec. 360(34) states:
Similarly, Montana's ancient documents statute is discussed in King v. Schultz, 141 Mont. 94, 375 P.2d 108 (1962) where the court held:
The Louisiana statute, however, has been designed especially for our system of recordation of instruments affecting the title to land. The custodial requirement is satisfied, because our statute applies only to instruments recorded in the official records for more than 30 years. R.S. 13:3729. Our statute does not require that the ancient instrument be "regular" or "unsuspicious". The combination of age and recordation not only authenticates the old document, making it admissible in evidence, but also, by the terms of the act, establishes "a prima facie presumption of the execution and of the genuineness of such instrument."
The only Louisiana case found which interprets the act so stated, and held that the burden of proof (to establish that an ancient document is not genuine) is upon "those who assail an ancient document to overcome the presumption of its prima facie validity". Watkins v. Zeigler, 147 So.2d 435, 438 (La.App.2d Cir. 1965).
Moreover, our ancient documents statute even dispenses with the necessity of offering the original instrument; copies made from the recordation of the ancient document are admissible. The copy of the sheriff's deed involved in the instant case shows only Briant to be the vendee, was indexed in Briant's name, and shows no irregularity.
The superimposition of Briant's name over that of Miss Fournet is not such an alteration that could not have an innocent explanation. It was recorded and indexed with no effort at concealment on the public records; it was assessed for tax purposes to Briant the following year and subsequently to the state for non-payment of taxes, in the name of Briant. Miss Fournet was Briant's sister-in-law. Briant is named as one of her securities for the payment of the purchase price in the proces verbal. The deed was not recorded until four days after the recordation of the proces verbal. It is entirely possible that Miss Fournet freely consented to the substitution of Briant's name for hers on the deed, for one of a number of valid reasons. The record contains no evidence whatsoever that the substitution of the name was not with the knowledge and consent of Miss Fournet.
To hold that the burden of proving the regularity of the ancient instrument falls on the one relying on the instrument would emasculate the act. The party attacking a document covered by R.S. 13:3728-3731 must overcome the "prima facie presumption" of its validity. Defendants have not borne that burden.
Briant's Loss of Ownership
Nevertheless, we find that plaintiffs cannot prevail, for reasons not reached by the courts below.
In 1873, the land in dispute was adjudicated to the state for failure to pay taxes. The name of L. P. Briant appears as the
Plaintiffs present two positions, arguing alternatively that the property either never left the patrimony of Briant or, if it did leave Briant's patrimony, that it was returned by operation of law.
In arguing that the property never left Briant's patrimony, plaintiffs contend that because part of the land sold in the St. Martin parish tax adjudication is located in Iberia parish the tax adjudication of 1872 is an absolute nullity. This argument ignores Article 10, section 11 of the (See Art. 7, sec. 25(C) La.Const.1974) Constitution of 1921:
In King v. Moresi, 223 La. 54 (1953), 64 So.2d 841, we held:
There is no evidence in the record before us to indicate that the taxes had been paid, nor did the tax debtor remain in corporeal possession of the property. The five year peremption period having long since passed, plaintiffs cannot now attack the validity of the tax adjudication on this basis. Plaintiffs' argument that the property never left Briant's patrimony is wholly without merit.
In arguing alternatively that if the land left Briant's patrimony it was returned by operation of law, plaintiffs contend that, though the land was adjudicated from Briant to the state, it was returned by the operation of Article 10, section 20 of the Constitution of 1921:
It is clear from this provision that in order to prevail plaintiffs must take the position that the state has not "sold or disposed of" the property. The record shows otherwise. Act 97 of 1890 conveyed the lands to the Atchafalaya Basin Levee District and directed the auditor and the registrar of
It is contended that the conveyance from the Levee Board to Pierre Angelloz was a mere quit-claim and that the Levee Board had no rights in the property. The act of transfer contains the words "quitclaim" in the heading; the language within the act is as follows:
Even if this instrument is a "quit-claim", we find that it effectively conveyed to Angelloz the ownership of the land, because the Levee Board was the owner. A quitclaim deed conveys whatever title the grantor owned. Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225 (1947).
Plaintiffs take the position that, for two separate reasons, the Levee Board did not own the property conveyed to Pierre Angelloz.
First, they argue that the donation from the state to the Levee Board transferred only rights obtained by the state in the 1889 tax adjudication, which plaintiffs contend is an absolute nullity, and not rights the state obtained in the 1873 tax adjudication.
We need not decide whether the 1889 tax adjudication is a nullity because we find that the state conveyed to the Levee Basin all rights in the property regardless of how or when the state acquired them.
By act 97 of 1890, the legislature provided for the donation of transfer to the Atchafalaya Basin Levee District all lands then belonging to the State within the limits of the Levee District.
The conveyance by the auditor to the Levee District reads as follows:
This language clearly transfers "all right, title and interest of the State of Louisiana". The clause referring to the unpaid taxes of "1880 and subsequent years" does not limit the conveyance to those lands the titles to which were acquired for taxes subsequent to 1880. Act 97 of 1890 did not limit the conveyance. As the deed expresses, the lands conveyed were "more fully described" in the attached list, which described the property involved here. The reference to lands described for taxes after 1880 might accurately describe some parcels, but did not limit the conveyance to certain titles of land described particularly in attached list.
Thus the state transferred all of its rights regardless of when they were acquired;
Next, plaintiffs argue that the conveyance to the levee district was invalid because the act authorizing such donations was violated.
Section 11 of act 97 of 1890, argue plaintiffs, required conveyances to the levee district to be signed by both auditor and register of the state land office. Plaintiffs take the position that the conveyance here involved is invalid because it was signed only by the auditor.
However, as defendants point out, this defect is cured by act 316 of 1926:
. . . . . .
Plaintiffs' only response is that act 237 of 1924 had the effect of repealing act 97 of 1890 and therefore that the 1926 act could no longer cure the failure to comply with act 97 of 1890. Plaintiffs cite State v. Grace, 187 La. 1028 (1936), 175 So. 656.
Act 237 of 1924 had the effect of allowing public bidding on land forfeited to the state. The court in State v. Grace, supra, merely held that such land could no longer be directly donated to the Atchafalaya Basin Levee Board inasmuch as public bidding was required. The act did not purport to affect transactions completed previous to its effective date. This was recognized by the court in Grace:
Thus, plaintiffs' argument that the property returned by operation of law to Briant's patrimony is wholly without merit. Since they have no title, plaintiffs cannot prevail.
The judgments of the court of appeal and district court are affirmed at plaintiffs' cost.