Arnold v. Sun Oil Co. , 218 La. 50 ( 1949 )

[184] On Rehearing [186] Effie Dexter Arnold, being out of possession, instituted this petitory action to have herself declared the owner of an undivided half interest in the SE 1/4 of the SW 1/4 of Section 14 and the NE 1/4 of the NW 1/4 of Section 23, T. 17 N., R. 9 E., Richland Parish, Louisiana. She was joined in her suit by Robert B. Prentice and Murray Hudson, the holders of a mineral lease and royalty deeds executed by her. They seek to have recognized the interest in the property conveyed to them by these instruments.

[187] The defendants are the heirs of Mr. and Mrs. James L. Anding, Sr., and of James L. Anding, Jr., who claim the full ownership of the property, subject to the rights held by their mineral lessees, Charles H. Murphy, Jr., and the Sun Oil Company.

[188] This case has become a celebrated one in the court. The petition was originally filed on October 30, 1945, and the trial in the lower court covered a period of almost two years, the appeal not being lodged here until October 18, 1947. The case was first argued in this court on April 26, 1948, but no decision was handed down for the reason that the judge to whom it was assigned was unable to secure the requisite number of adherents to his views. Only five judges heard that argument, the then Chief Justice, Charles A. O'Niell, having been recused, and the vacancy caused by the death of Justice Bond not having been filled. The case was argued a second time on October 5, 1948, before a six-man court, but no decision was rendered because the court was evenly divided in opinion. The third argument was heard on February 15, 1949, before a seven-man court composed of the six regular members and a judge ad hoc who was called to sit in the place and stead of Judge O'Niell, recused. The case was assigned to this judge and he handled the matter so ably his opinion bore the signature of four of the other judges, only two dissenting. When the applications for rehearing filed by both the plaintiffs and the defendants were considered in consultation it was originally intended that the rehearing be limited to the question of remanding the case for the introduction of further evidence, raised by the plaintiffs, and to the nature and extent of the protection to be accorded the rights held by Murphy and the Sun Oil Company, allegedly acquired by them in reliance on the public records. However, because of the importance of the case and the many vital issues presented, it was concluded that justice could best be served by opening the case in its entirety and it was, therefore, argued for a fourth time on January 9, 1950, without restrictions of any kind.

[189] During all of the time the case has been pending in this court the record, though somewhat voluminous, has been read and studied, at one time or another, by almost all of the court personnel, with the result that although we are very familiar with the complicated facts involved and appreciate their full significance, as well as the unusual part they play in the casting of the issues, we may have inadvertently overlooked the fact that others cannot correctly appraise the pleadings and our conclusions with respect thereto unless they have complete knowledge and understanding of the background. For this reason we are giving in great detail the facts and history of the case, as reflected by the record, in chronological order.

[190] The 80 acres in question form a part of a larger tract that was entered by Thomas Curry and Rice Garland on June 7, 1853, under a certificate issued by the United States government; it was officially severed from the public domain when the government subsequently patented the property to them on June 5, 1857. The property forming the basis of this suit was dismembered from the original tract and transferred, eventually finding its way into the hands of Hiram R. Lott, by instruments which are in the record but need not be discussed for the reason that they have no effect on the controversy here. On December 9, 1875, Lott sold the property to Mariah Dexter for $133 in cash and a mortgage of $66, represented by 2 notes of $33 each. She is the common ancestor in title of the plaintiffs and the defendants.

[191] Mariah Dexter, though "purchasing and accepting for herself," was then married to Boston Dexter and was authorized by him to enter into the contract. The property fell into the community existing between them. They moved onto the property with their two children, Lula — who was born in 1874 and died unmarried in 1900 leaving two illegitimate children, Willie and Louis Dexter — and Lee, who was born the year the property was acquired and died two years later while still in infancy. Lula and Lee thus pass out of the picture, though the illegitimate children of Lula play a part that will be discussed later.

[192] After Mariah and Boston Dexter moved onto the property (lying to the south of Delhi, Louisiana, in what was then a small colored community), their two remaining children were born, Walter in 1877 and John Henry in 1883. Around 1900 Walter married Ellen, whose maiden name is not disclosed by the record, and they moved into one of the three cabins then on the place (Mariah lived in one and her mother-in-law in the third), where their four children were born. In January of 1901 John Henry Dexter married Eliza Hedgman and they moved into a fourth cabin on the property that was built especially for them. There, in August of 1902, their daughter, Effie, who is the principal plaintiff in this case, was born. When Effie was only a few years of age Eliza died, leaving the small child in the charge and care of Amanda White (daughter of Warren White, a son of Mariah Dexter but not of Boston) who had been helping Eliza during her illness. Moving away from the community some three or four years later with Effie, Amanda White settled in Delhi, where she lived on the premises and cooked for many years for Judge Buchanan, a next door neighbor of the Andings. In the meanwhile, Mariah having died in 1905 at the age of 69, Boston in 1907 or 1908 around 70 years of age, and John Henry in 1909 at the age of 26, Walter Dexter and his family were the only members of the Dexter family left on the property, with the possible exception of the illegitimate children, Willie and Louis Dexter, the record being indefinite as to their whereabouts or movements.

[193] Around 1895 James L. Anding, Sr., a native of Hazelhurst, Mississippi, then of school age, began spending his summers in Delhi, Louisiana, visiting in the home of Dr. J. M. Barrier, whose wife was Anding's double first cousin; and graduating from high school in 1900 he settled permanently in Delhi that same year, marrying Elizabeth Koutezky, a native of Delhi, in 1903 or 1904. In 1906 Anding, who had worked in various stores for other people, went into the mercantile business for himself, trading to a large extent with the colored people of this small country town, including the Dexters and those who lived in their immediate community. The witnesses for the defendants testified that Anding, like many of the men in Delhi (and also George Calder), hunted around in the vicinity of the Dexter property during the seasons, possibly even with some of the Dexter men, frequenting the settlement also on Sundays to witness the baseball games played there by the colored people.

[194] After his marriage, Anding lived first with an aunt of his wife and then in one or two other places that burned, the dates and location thereof not being clear. In 1909, however, when Amanda White moved onto the Buchanan place in Delhi proper, bringing with her Effie Dexter, then about seven years of age, Anding was living next door to the Buchanans in a house that he had built. He continued to live in this same house until his death in 1928. His five children were all born in Delhi and they grew up in the house next door to the Buchanans. These are: James L. Anding, Jr., born in 1905; Mary Jane Anding Hopson, born in 1907; Corre Buchanan Anding Whitfield (named for the wife of Judge Buchanan), born in 1910; George K. Anding, born in 1911; and Elizabeth Virgil Anding Thompson, born in 1915.

[195] The estates of Mariah and Boston Dexter were never opened so their heirs were never legally placed in possession of this property. There is nothing in the record to show in whose name the property was assessed during this time but there is evidence that in 1910 it was assessed in the name of "Mariah Dexter, Est. of," for the taxes for 1910; and these remaining unpaid, the property was sold on March 6, 1912, to J. W. Jones for $21.80, the amount of the taxes due for 1910 plus interest and costs. On May 31, 1912, shortly after this tax adjudication to Jones, Walter, Louis, and Willie Dexter conveyed to George M. Calder by notarial deed their "rights and titles and interests" in and to the SE/4 of the SW/4 of Section 14 and the NE/4 of the NW/4 of Section 23, T. 17 N., R. 9 E., the property involved in this case, for the price of $121.68 (the property was at that time assessed for $320), it being specifically stated in this deed that the taxes for the year 1911 had been paid, without any mention of the taxes of 1910 for which the property had only shortly before been sold to Jones. This is the deed under which the Andings and the other defendants claim title to the property.

[196] Willie and Louis Dexter, of course, had no interest whatever in this property, being the illegitimate children of Lula Dexter, who had died unmarried in 1900. And Walter Dexter owned only a half interest in the property, the other half being the property of his niece Effie, the daughter of his brother John Henry Dexter, then a minor about 10 years of age. Walter Dexter purported to act as the representative of Willie Dexter in this transaction, although there is no power of attorney or authorization from Willie Dexter that is made a part of or attached to this instrument. George M. Calder, a resident of Richland Parish, was purportedly acting as the agent of George Calder (a cousin who was a cotton buyer and lived in Vicksburg, Mississippi) in the transaction, and although there is a power of attorney attached to the instrument authorizing George M. Calder "to accept a Deed, from Walter, Louis and Willie Dexter," that is dated May 31, 1912, the date of the deed, this power of attorney was not signed and notarized until some two weeks later, in Vicksburg, Mississippi, on June 12, 1912.

[197] The day after this deed was executed by the Dexters, the property was redeemed from J. W. Jones upon the payment to him of $26.16, and the release executed by Jones at Rayville, Louisiana, states this amount was paid to him by "Mariah Dexter Est."

[198] George Calder did not himself, and neither did his agent George M. Calder, ever take actual physical possession of the property. In fact, Walter Dexter, with his family, remained on the old home property until he was charged with a crime and, after trial, sentenced to the penitentiary in February of 1915, paying no rent to the Calders in either money or crops. (Walter never returned to the property, and died in 1944.) The only physical possession Calder could have had of this property was through the tenancy of one Wisdom Johnson who, it is inferred, was sent to farm the property — by which of the Calders is not clear. It is claimed by the defendants in this court, though no effort whatsoever was made by them to introduce any proof in support thereof in the lower court, that Johnson, as the tenant of Calder, took possession of the property in the fall of 1914 by putting the wife and children of Walter Dexter out of the only cabin left standing on the place and off of the property. The record as presently made up, however, is overwhelmingly indicative that Johnson's usurpation occurred in December of 1915, at which time Calder was no longer the legal owner of the property.

[199] Calder did, however, almost immediately after execution of the Dexter deed and the redemption of the property from the tax adjudicatee, J. W. Jones, begin to treat the property as an instrument of barter and security in the financing of his operations. He first mortgaged it in July of 1912, through his agent, George M. Calder, to secure a note for $800 given Austin Walne of Vicksburg, Mississippi. On April 2, 1913, George and George M. Calder, being indebted to the Central Savings Bank and Trust Company of Monroe, Louisiana, in the amount of $788.50, executed their joint note for this amount, payable on November 15, 1913. As security for this note they gave four mortgage notes, one, in the amount of $1,000 and executed by George Calder to his own order on March 29, 1913, was secured by the Dexter property. The record does not show who paid the 1912 taxes on the property, the property for that year still being assessed in the name of "Mariah Dexter Est."; but the record does show that Calder permitted the property to be sold for the taxes of 1913 (for which year the tract was assessed in his name) to W. C. Chennault on June 6, 1914, and that the bank, not Calder, redeemed the property from Chennault in November of 1914. The bank also paid the taxes on the property for 1914 and 1915, the only other two years Calder appears on the assessment rolls as the owner thereof. On April 30, 1915, the bank secured a judgment against George M. Calder (its rights against George Calder, a non-resident, being specifically reserved) on the $788.50 note and on June 25 thereafter petitioned for the seizure and sale of the Dexter property in satisfaction thereof. The bank bid the property in at the subsequent sale for $800, becoming the legal owner of the property on August 11, 1915, under sheriff's deed duly executed. It is undisputed that the bank made no effort whatsoever to take actual physical possession of the property, but it is readily apparent that when Wisdom Johnson dispossessed the wife and children of Walter Dexter in the latter part of 1915 as the purported tenant of "Calder" the legal title to the property was no longer in George Calder, but in the bank.

[200] Up until this time the Central Savings Bank Trust Company had no knowledge that Walter Dexter was the owner of only an undivided half interest in the property he purportedly sold in its entirety (along with Willie and Louis) to George Calder. However, approximately a year later, preparatory to selling the property for the purpose of wiping the Calder account off its books, the bank caused an abstract of the title to be made by J. W. Summerlin. From that time the bank had knowledge of the defective title and when the property was sold by it to Daniel T. Phillips on November 28, 1917, for $1,800, Phillips was so advised and the warranty of the bank was limited in the deed to the $1,300 "investment" it then had in the property.

[201] Phillips moved onto the property and worked it for a year. At just about this same time, or in the early part of 1918 — a year before Anding, who lived next door to the Buchanans in Delhi, acquired the property from Phillips — Effie Dexter, still living on the Buchanan property in Delhi with her foster mother, Amanda White, was married in the Buchanan home by Judge Buchanan to Albert Decatur. Immediately thereafter she went back to the settlement in which the Dexter property lies with her husband and lived there with him for approximately a year in the home of Laura Shaffer, the mother of Tom Shaffer, whom Amanda White had married many years previous. In 1919 Effie moved to Monroe, Louisiana, where she was still residing when this suit was instituted, although in the meanwhile she had divorced Albert Decatur and married Scofield Arnold, her present husband. During these many years she only returned to the Delhi community on one or two occasions for a few days.

[202] On January 4, 1919, James L. Anding, Sr., who had continued to operate his general merchandise store in Delhi during all of these years (engaging in real estate operations on the side), and had lived next to the Buchanans where Effie moved with Amanda White in 1909, purchased the property in controversy from Phillips for $2,000. Although Phillips warranted full title to this property, Anding secured and recorded along with his deed an affidavit of Harrison Bennett, the nephew of Mariah Dexter who had lived just behind the Dexter place and knew the family well, wherein he stated that on May 31, 1912, the date on which Walter, Willie, and Louis Dexter executed the deed purportedly transferring the property in its entirety to George Calder, these three were the only living heirs of Mariah Dexter. (Anding also had in his possession at the time of the purchase the abstract of title prepared in 1916 by J. W. Summerlin for the Central Savings Bank Trust Company. It was given to the Federal Land Bank in 1936 when Mrs. Anding sought a loan and was produced in court by the Andings, after this suit was instituted, under orders of subpoena duces tecum secured by the plaintiffs.) From that time the property was farmed out to various tenants who operated it for Anding on a more or less sharecrop basis.

[203] On April 28, 1928, James L. Anding, Sr., then mortally sick with cancer, permitted the Dexter tract to be seized by the sheriff for non-payment of the taxes, although it is conclusively shown that he had, at the time, ample means with which to pay them and that he had, in fact, paid the taxes due by him on all of his other real estate holdings. At the tax sale in June following, the property was purportedly purchased by his son, James L. Anding, Jr., who was then and during the remainder of his life a resident of Missouri. It is highly significant that in every place in the tax deed itself, as well as in the recorded copy thereof typed separately in the conveyance records of Richland Parish, the name originally appearing in these instruments as the purchaser has been erased and the name of James L. Anding, Jr., has been typed in over these erasures.

[204] On August 25 of 1928 James L. Anding, Sr., made his last will. He died on December 31 following, leaving as forced heirs his five children, three of whom were then minors — Corre who was 18, George who was 17, and Elizabeth who was 13 — and his succession was opened immediately thereafter on January 3, 1929. Mrs. Anding qualified as the executrix of the estate and on January 19, 1929, caused the homologation and approval of an inventory that had been taken of the assets of the estate. (The inventory did not include Anding's current bank accounts, one of which showed a balance of $1,505.16 on the day he died, though this account was from that time checked against, nor all of the realty owned by him, including the property just months before permitted to go at tax sale and in which the estate had an undoubted interest since the period in which it could be redeemed had not elapsed.) This was the last step taken in settling the succession, and it was still open when the instant suit was filed. The inventory, despite the omissions above noted, showed that James L. Anding, Sr., left an estate valued at $27,344.27. In addition, Mrs. Anding received the $15,000 proceeds of the insurance policy on her husband's life. Yet no effort was ever made by her, as the executrix of the estate, to redeem the property thus lost to the succession through the tax sale manipulation, although she did continue from that time until 1932 (when the property was transferred to her by her son, James L. Anding, Jr., the tax purchaser, for the purported consideration of $4,000, with full warranty of title) to administer the property as had her husband, farming it out to various tenants and taking crop liens to insure money advanced to them.

[205] Interest centered around Delhi in 1943 because of the potential mineral value of the property in the area and, on August 25, 1944, Charles H. Murphy, Jr., one of the defendants in this case, secured a mineral lease from Mrs. Elizabeth K. Anding covering the Dexter tract for a term of 5 years, for $320 in cash plus royalties and other considerations. Mrs. Anding appeared as the lessor in this instrument as "E. K. Anding, widow of J. L. Anding, deceased." Murphy assigned this lease, along with the 95 others he had secured in this field during a period beginning August 17, 1944, and ending on December 11, 1944, to the Sun Oil Company on January 9, 1945, "without warranty of any kind." The assignment was recorded on February 21 thereafter. In the latter part of 1944, though not on the Dexter property, Murphy drilled the discovery well in this field. By deed dated December 11, 1944, Mrs. Anding partitioned with her children the mineral interest in the property owned by them, including that under the Dexter tract, but this act was superseded by another one dated September 20, 1945, wherein it is stated that all of the mineral rights therein partitioned, including those under the Dexter property, belonged to the "community estate," some having been acquired prior to the death of James L. Anding, Sr., and some having been acquired subsequent to his death with community funds and property.

[206] Sun Oil began the drilling of a well on the Dexter tract proper on September 27, 1945.

[207] Robert B. Prentice, one of the plaintiffs, obtained a mineral lease and royalty deed affecting the property from Effie Dexter Arnold on August 25, 1945, for $5,100. Learning for the first time on October 2, 1945, of the company's intention to drill a well thereon, he notified Murphy and Sun Oil by registered letter dated October 3, 1945, of his claim to an interest in the property. The company, in a reply letter of October 8, refused to recognize his claims, stating as its opinion, from a study of the complete abstract of title the company had had made, as well as an investigation of theoccupancy and possession of the land, that any irregularity in the earlier chain of title had been cured by prescription and, therefore, the lease held by it was a valid one. The well was completed on October 22 and this suit was instituted on October 30, 1945, by Effie Dexter Arnold, Prentice, and Murray Hudson, holder of another royalty deed from Effie.

[208] The pleadings in the case are numerous. Filling almost the entire first volume of the record (composed of eight volumes in all), many of these pleadings relate to the taking of oral testimony and the production of instruments.

[209] The allegations of the petition are to the effect that Effie Dexter Arnold, the owner of an undivided half interest in this property since the death of her father in 1909, of which interest she has never divested herself, is entitled to be recognized as such, subject to the valid conveyances of mineral interests therein executed by her in favor of Robert B. Prentice and Murray Hudson on August 25, 1945; that the tax sale from J. L. Anding to James L. Anding, Jr., in 1928 (about which plaintiff Arnold had no knowledge until four months prior to the institution of this suit), as well as the transfer of this same property to Mrs. Elizabeth K. Anding in 1932, are simulations, pure and simple, having been entered into intentionally by all of the parties involved for the purpose of defrauding her and thus depriving her of her property; and that all of the defendants, the Andings as well as their lessees Murphy and Sun Oil, have each and every one of them acted in bad faith and possess the property as such. They seek the cancellation from the records of the tax sale to James L. Anding, Jr., and his transfer to his mother, of the Murphy lease and its assignment to the Sun Oil Company, and of the instruments of December 11, 1944 and September 20, 1945, wherein the Andings sought to partition among themselves the minerals under this land. They further ask that their right to sue for an accounting of the oil produced from the property and for damages from all of the defendants be reserved. In supplemental petitions they made parties defendant the legal heirs of Mrs. Elizabeth K. Anding and James L. Anding, Jr., both of whom died after this suit was instituted.

[210] Denying in a general way all of the allegations contained in the petition, and particularly that Effie Dexter Arnold is the legal heir and child of John Henry Dexter, or the legal heir of his parents, Mariah and Boston Dexter, the defendants, in separate answers, trace their title back to the deed under which Mariah Dexter purchased the property from Hiram R. Lott in 1875. Then, averring they and their authors in title have had possession of these lands in good faith, under conveyances translative of property, continuously, openly, and peaceably and adversely to all others for more than 30 years (without stipulating the acts of possession in any specific author in title), they plead specially: (1) the prescription of 30 years controlling the renunciation and acceptance of successions, under Articles 1030, 1305, and 3548 of the Revised Civil Code; (2) the prescription of 10 and 30 years acquirendi causa under Articles 3478-3503 and 3515; (3) the prescription of 2 and 5 years applicable to informalities in sales by sheriffs under court orders, provided for in Article 3543; (4) the prescription of 20 years against the attack on the deed to Calder on May 31, 1912 (apparently on the contention that an agent's authority is presumed after this period); and (5) the prescription or preemption of 3 and 5 years against the tax sale to James L. Anding, Jr., under the provisions of Section 11 of Article X of the Constitution of 1921. In addition, as to Effie Dexter Arnold, there is a special plea that she is estopped to deny the validity of the tax sale by reason of her laches and long silence. Murphy and Sun Oil interpose the defense that their rights cannot be disturbed by the claims of the plaintiffs since they acquired their interest in good faith, "upon the strength of thepublic records," without any knowledge of any defects in the title. They also ask, as an alternative plea, that they be reimbursed for the amounts expended by them in developing and operating the property in the event the plaintiffs are successful in prosecuting their claims, the sum of $30,000 allegedly having been expended in this manner prior to the filing of this suit.

[211] The trial judge (who was especially appointed to hear this case upon the recusation of the regular judge) rendered judgment on June 30, 1947, almost two years after the suit was originally filed, in favor of the plaintiffs as prayed for, decreeing Effie Dexter Arnold to be the lawful owner of an undivided half interest in the land, subject to the lease and fractional royalty interests conveyed by her to Robert B. Prentice and Murray Hudson, ordering cancelled from the public records the tax sale from James L. Anding, Sr., to James L. Anding, Jr., dated June 4, 1928, and reserving to the plaintiffs their right to sue for an accounting of the minerals produced from the property subject to their accounting for their proportionate part of the taxes due. This judgment is sustained by the written opinion of the trial judge ad hoc wherein he states no effort was made by George Calder to determine whether Walter, Louis, and Willie Dexter were the owners of the property; that the defect in the title to the property "was known to all parties dealing with the property" at the time Anding acquired it from Phillips in 1919; that the tax sale to James L. Anding, Jr., was entered into for the purpose of procuring a clear title to the land and, as such, an absolute nullity that could not form the basis of prescription; and that"the evidence is clear that defendants C. H. Murphy, Jr., andSun Oil Co. knew, or could with reasonable diligence have known,of the defect in the Anding title, prior to their drilling of thewell on the property," and "In addition, the testimony shows that in February or March, 1945, some six months before the well was drilled, an affidavit was procured and in the possession of defendants showing the heirship of Effie D. Arnold." (Italics ours.)

[212] Our very careful reconsideration of the entire record and of all of the issues raised in this case has not caused us to alter our previous conclusion that James L. Anding, Sr., purchased this property from Phillips in 1919 in bad faith and with full knowledge of the outstanding interest therein of a minor heir, and that the tax sale and the subsequent transfer of the property to the widow of Anding was, from beginning to end, a simulation entered into for the purpose of perfecting a defective title — all as was so ably demonstrated by the Justice ad hoc in the original opinion. We also adhere to his conclusion that "as the record stands today, the preponderance of the evidence would indicate that this possession (the possession of Wisdom Johnson for Calder) took place after the Central Savings Bank Trust Company had acquired title by sheriff's deed," and, accordingly, the pleas of prescription and preemption of 3, 5, 10, and 30 years must all be overruled. But we do not feel the case should be remanded to the lower court for the introduction of further evidence by the defendants touching on the possession of Calder and the nature of Walter Dexter's occupancy of this property after his purported sale thereof to Calder in 1912.

[213] All things must, in time, come to an end. This is particularly true of litigation. The case has been in the courts for almost five years, two of which were consumed in its trial. The defendants had ample opportunity to obtain and produce any and all testimony whatever that they felt was necessary to the proof of their claims. At one stage of the trial they even secured the continuance of the case for a period of five and a half months because of the pregnancy of one of the witnesses they thought important. The issue of the possession of all of the authors in title of the defendants was clearly presented in the lower court and, as early as October 8, 1945, before this suit was instituted, an exhaustive exploration had been made into the title and the occupancy and possession of the land, as evidenced by the following statement made in the letter the legal department of Sun Oil Company addressed to the attorneys of Robert B. Prentice: "We have secured a complete abstract of title to this land and have had this examined by our attorneys in Louisiana. We have also had an investigation made as to the occupancy and possession of the land." That there may be no doubt as to the appreciation of the defendants of the importance of this vital issue, and, indeed, that their entire case under their prescriptive pleas rested on this pure question of fact, we quote the following statement made during the course of the trial by one of the attorneys representing the defendants: "* * * inorder that there may be no misunderstanding as to the position ofmy clients, C. H. Murphy, Jr., and Sun Oil Company, I will statefor the record, in defense of this case they stand on the recordof their lessor and her possession, and that of her predecessorsin title * * *." (Italics ours.)

[214] Despite this, and although the defendants had the burden of proving the possession of all who purportedly held title from the time the property was severed from the estates of Boston and Mariah Dexter under the allegations contained in their answers, in order that Effie Dexter might be divested of her legal half interest in this property, they did not bring to the witness stand one single witness — not even Robert Nathan, from whom they secured the affidavit of the heirship of Mariah and Boston Dexter on March 21, 1945, and who purportedly knew all of these people and their history, or Willie and Louis Dexter, both of whom purported to convey an interest in this property to Calder in 1912 and who were then living in Tallulah, Louisiana, according to the Nathan affidavit — to testify with respect to the possession of any one other than the Andings. The only inference we can draw from their action is that in their very exhaustive investigations they either found that the persons interviewed could not assist in the proof of their case or that such persons would, if called to testify, give testimony adverse to their cause. Bates v. Blitz, 205 La. 536, 17 So.2d 816; Succession of Yeates, 213 La. 541, 35 So.2d 210; Fried v. Bradley, La.Sup., 52 So.2d 247.

[215] We feel, therefore, that the following quotation from the case of Esmele v. Violet Trapping Company, 184 La. 491,166 So. 477, 481, is particularly apropos: "To send the case back to the lower court for further evidence under such circumstances would clearly lead to abuse, in that litigants would submit their cases upon what they believed to be the weakness of their opponent's evidence, knowing that, if they failed, they would be given another opportunity to introduce evidence to rebut it." See, also, Lowry v. Erwin, 5 La.Ann. 205; Yarbrough v. Swift Co.,119 La. 344, 44 So. 121; Jones v. Curran, 156 La. 1055, 101 So. 415; Madison v. Prudential Insurance Co., 190 La. 103,181 So. 871; M. H. Nahigian, Inc., v. Haddad, 205 La. 1009, 18 So.2d 598.

[216] This leaves for our consideration the contention of the defendants Charles H. Murphy, Jr., and Sun Oil Company that we erred in holding the law of registry, applying only to third parties purchasing immovables or real rights in immovables, does not protect mineral lessees, who can acquire no greater right than their lessor.

[217] The learned Justice ad hoc, relying on the well established jurisprudence of this court, very aptly pointed out that the provisions of the Revised Civil Code with respect to the law of registry, Articles 2251-2266, have no application in this case for the reason "that the usual oil and gas lease with a cash or royalty consideration, or both, such as the one presently before us, is a contract of letting and hiring within the meaning of the codal articles, and that the lessee in such a mineral lease obtains an obligatory or personal right only, and not a servitude on the realty or a real right in the land." See, Article 48 of the Code of Practice; Articles 2696, 2703, 2704 of the Revised Civil Code; Hoffman v. Laurans, 18 La. 70; Young v. Chamberlin, 14 La.Ann. 687; Fox v. McKee, 31 La.Ann. 67; Rojas Conner v. Seeger, 122 La. 218, 47 So. 532; Leightsey v. Welch, 158 La. 1024,105 So. 51; Roberson v. Pioneer Gas Co., 173 La. 313,137 So. 46, 82 A.L.R. 1264; Gulf Refining Co. of Louisiana v. Glassell, 186 La. 190, 171 So. 846; and Tyson v. Spearman,190 La. 871, 183 So. 201.

[218] The provisions of the Revised Civil Code treating of the subject of lease, to be found under Chapters 1 and 2 of Title IX, define a lease to be a synallagmatic contract by which one party gives to the other, for a price, the use and enjoyment of a thing (Article 2669), the one granting the lease being called the lessor or owner and the one to whom the lease is made being called the lessee or tenant (Article 2677). The price given must be certain and determinate (Article 2671) but a lease may be written or verbal (Article 2683), consent alone being sufficient (Article 2669). The duration and the conditions of the lease are regulated by the contract or by mutual consent (Article 2684).

[219] The obligations and rights of the one letting out "things," as set out in Section 2 of Chapter 2, are that the lessor, in addition to delivering the thing leased to the lessee and maintaining it in such a condition that it will serve for the use for which it was hired, must "cause the lessee to be in a peaceable possession of the thing during the continuance of the lease." Article 2692. He also warrants the enjoyment of the thing leased against the claim of the owner (Article 2682), but is not bound to guarantee the lessee against disturbances caused by persons "not claiming any right to thepremises," in which case the lessee may recover damages against the person occasioning such disturbances (Article 2703). However, "If the persons by whom those acts of disturbance have been committed, pretend to have a right to the thing leased, or if the lessee is cited to appear before a court of justice to answer to the complaint of the person thus claiming the whole or a part of the thing leased * * * he shall call the lessorin warranty, and shall be dismissed from the suit if he wishes it, by naming the person under whose rights he possesses." Article 2704. If the lessee is evicted, then the lessor is answerable in damages for the loss sustained by the interruption of the lease. Article 2696. See, also, Code of Practice, Articles 43, etc. (Italics ours.)

[220] In Articles 2710-2726, setting out the rights andobligations of the lessee, we find he is compelled to use the property in the manner intended as a good administrator, upon the penalty of the dissolution of the lease and damages for losses incurred by the owner; that he pay the rent in accordance with the terms of the lease, under penalty of being ejected from the property; that he must maintain the property in repair, as specified; that he may remove the improvements and additions he has made to the thing leased under certain conditions; and that he must prevent any encroachments and give notice thereof to the proprietor under penalty of being liable in damages to the lessor. His right to sublease is also subject to restriction.

[221] It would appear from these pronouncements that the lawmakers intended to limit the rights and remedies of a lessee in the case of an eviction by one lawfully the owner thereof to a recovery in damages against the lessor. This is clearly borne out by the fact that in case there is an encroachment upon the leased property the lessee must not only notify his lessor of such encroachment (Article 2724) but must also call his lessor in warranty in the event he is cited to appear in court to answer the complaint of one claiming an interest in or the whole of the property under lease to him (Article 2704). Under these articles, therefore, the ordinary lessee cannot bring a suit himself or stand in judgment where one is instituted against him. Articles 43 and 48 of the Code of Practice.

[222] The intention of the lawmakers with respect to the rights and obligations of the lessee is given further emphasis and clarity in the articles of the Code of Practice dealing with procedure in real actions, Article 48 of this group being quoted herewith in full:

[223] "Those who possess in the name of another, such as tenants, are not entitled to the possessory action, when disturbed in the enjoyment of the real estate which they possess in that quality, or even when they are expelled; but they have their remedyagainst the person in whose name they possess, and they are bound to apprise him of the disturbance they have experienced, by personal notice, if he be within the State, and by advertisements in the newspapers, if he be out of the State, in order that he may quiet them if it can be done; otherwise they lose all right to claim damages from him, and will be liable to him besides for all the loss and damages which he may have sustained through their neglect." (Italics ours.)

[224] It is true that upon the adoption of Act No. 205 of 1938 mineral leases and similar contracts were classified as "real rights" and "incorporeal immovable property," but this classification extends no further than a grant to mineral lessees of the right to avail themselves of any procedural remedy that may be available to the owner of the realty in the protection and defense of such rights as the lessor legally conveyed to them. As this court in the original opinion stated this proposition, the jurisprudence since the adoption of Act No. 205 of 1938 has been that the act is "remedial and procedural in character, and that it has not affected or changed any of the substantive rights flowing from the execution of mineral leases." See, Allison v. Maroun, 193 La. 286, 190 So. 408; Tyson v. Surf Oil Co., 195 La. 248,196 So. 336; Amerada Petroleum Corp. v. Reese, 195 La. 359,196 So. 558; Coyle v. North American Oil Consolidated, 201 La. 99,9 So.2d 473.

[225] It therefore follows that the provisions of Act No. 205 of 1938 do not confer upon Murphy and Sun Oil Company such a substantive right in the realty that they may, by reliance upon the public records, acquire a greater right than an ordinary lessee could acquire and a greater right, in fact, than their lessor possessed.

[226] But granting these mineral lessees all of the rights accorded those acquiring immovable property rights on the faith of the public records, we think the record in this case unmistakably shows Murphy and Sun Oil were in legal bad faith.

[227] Murphy secured this lease from Mrs. Anding on a "take-off" title, with the view of doing such curative work as a later examination of the public records might disclose, and he subsequently transferred his half interest therein to Sun Oil Company "without warranty of any kind." The lease contract, dated August 25, 1944, reflects that Mrs. Anding executed the same as the "widow of J. L. Anding, deceased." Further examination of the record shows the succession of J. L. Anding, though opened many years previous, had never been closed; that among the forced heirs of J. L. Anding was one James L. Anding, Jr., in whose name the property had been adjudicated for the unpaid taxes of 1927 under an assessment to J. L. Anding, his father, and just a few months prior to his father's death in 1928; that although James L. Anding, Jr.'s, mother, to whom he transferred the property, was the qualified executrix of the succession under a will of the deceased written after the 1928 tax sale and a short time before Anding's death, she not only did not redeem the property but did not cause the same to be listed as one of the assets of the community. An examination of the tax rolls, which is vital where one is relying on the faith of the public records, and particularly so where a title derived from a tax sale must be considered, readily discloses the tax debtor, J. L. Anding, assessed with considerable property for the year 1927, paid, in March of 1928, all of the taxes due on this other property, permitting the property in question to be seized in April, the very next month, for the non-payment of these taxes, and, in June to be sold therefor. The record further reveals that the name of the adjudicatee in the original tax deed, and in the recordation thereof in the conveyance office, was erased after the recordation of the deed and the name of James L. Anding, Jr., superimposed over these erasures wherever they appear in the instrument.

[228] These facts, plainly revealed by the public records, were sufficient in the unanimous opinion of the experts who testified, all of whom were eminent attorneys of this state and abstracters of note with extensive experience in the title field, to have placed an examiner of the title on notice that these manipulations mirrored a picture of simulation that had been executed for the ostensible purpose of perfecting the title by cutting off an outstanding interest, and that interest was readily disclosed by an examination of the conveyance records of Richland Parish.

[229] The attorneys who examined the title for Sun Oil Company and Murphy were obviously of the same opinion, for we find that Murphy and Sun Oil, in their effort to divest Effie Dexter of her interest in the property, did not rely on the tax sale of 1928, but, instead, on the prescriptions of 10 and 30 years.

[230] This is evidenced by the final opinion of the attorney examining the abstract for these defendants, rendered on March 26, 1945 — at which time they had in their possession an affidavit secured by one of their agents on March 21, 1945, from Robert Nathan clearly showing the outstanding interest of Effie Dexter — that in his opinion his objection to the title mentioned in his preliminary opinion "is taken care of by the prescription of ten and thirty years, under the provisions of Articles 3478 and 3499, in view of the fact that there has been submitted to me in connection with this objection an affidavit showing possession in the present owner and her authors in title for a period of more than thirty years."

[231] However, if there could be any doubt as to the correctness of this conclusion, we think the action of these defendants after they learned of the outstanding interest of Effie Dexter — 7 months before this suit was instituted and 5 months before Prentice and Hudson acquired their interests from Effie Dexter — obviates it. Sun Oil and Murphy not only made no effort whatsoever to secure the interest of Effie Dexter or a lease from her, but persisted in their opinion that their lease from Mrs. Anding was valid under the prescriptive laws of the state, for when Prentice advised them of these claims Sun Oil, in a letter dated October 8, 1945, before this suit was instituted, stated:"Our attorneys have advised us that in their opinion anyirregularity which may appear in the early chain of title hasbeen cured by prescription." (Italics ours.)

[232] When our lawmakers established the present public policy of this state with reference to the law of registry, they did so for the purpose of protecting innocent third parties dealing with immovable property and to render safe investments in real property. It was never their intention that the law of registry be used as a means of defrauding rightful owners of their property through the recordation of fraudulent and simulated sales that clearly appeared as such on the face of the records. Third parties claiming under such instruments or muniments of title cannot ignore the facts revealed by these public records that unquestionably disclose the perpetration of a palpable fraud.

[233] For the reasons assigned the judgment appealed from is affirmed

[234] HAMITER, J., dissents, adhering to written reasons heretofore assigned by him.

[235] HAWTHORNE, J., dissents and assigns written reasons.

[236] McCALEB, J., dissents in part with written reasons.