Walmsley v. Pan American Petroleum Corporation
Walmsley v. Pan American Petroleum Corporation, 153 So. 2d 375 (La. 1963).
Cited by
Criticized in 4
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Authorities cited
Identified automatically; this list may not be exhaustive.
- Lacroix v. Villio 123 La. 459
- Atchafalaya Land Co. v. Brownell-Drews Lumber Co. 130 La. 657
- Exchange Nat. Bank v. Head 155 La. 309
- Bodcaw Lumber Co. of Louisiana, Inc. v. Kendall 161 La. 337
- Aucoin v. Marcell 195 So. 807
- Daigle v. Pan American Production Co. 236 La. 578
- Davidson v. McDonald 126 La. 539
Opinion text
SANDERS, Justice (dissenting). I am unable to subscribe to the majority opinion. As I view the decision, it broadens the action to remove a cloud from title so as to embrace situations in which the defendant is in possession. Such an enlargement of the action is contrary to prior jurisprudence. See Lacroix v. Villio, 123 La. 459 , 49 So. 20 ; Atchafalaya Land Co. v. Brownell-Drews Lumber Co., 130 La. 657 , 58 So. 500 ; Exchange National Bank of Shreveport v. Head, 155 La. 309 , 99 So. 272 ; Bodcaw Lumber Co. v. Kendall, 161 La. 337 , 108 So. 664 ; Amrheim v. Champion, 9 Orleans App. 246; and Aucoin v. Marcell, La.App., 195 So. 807 . The function of this action was clearly defined in Exchange National Bank of *529 Shreveport v. Head, supra, wherein this Court stated: “But even where the plaintiff, claiming ownership, is not in actual possession of the property, he may yet have his action against a party oiit of possession for the cancellation of a recorded deed and to remove a cloud on his title.” (Italics mine.) This definition was reiterated in Bodcaw Lumber Co. v. Kendall, supra: “In Exchange National Bank v. Head, 155 La. [309] 310, 99 So. 272 , we held that even where the plaintiff, claiming ownership, is not in actual possession of the property, he may yet have his action against a party o%it of possession for the cancellation of a recorded deed and to remove a cloud on his title.” (Italics mine.) I do not construe Daigle v. Pan American Production Company, 236 La. 578 , 108 So.2d 516 , relied upon by the majority, to conflict with the foregoing jurisprudence. In that case, the petition alleged that neither the plaintiff nor the defendants were in possession. Moreover, the action to remove a cloud from the title was decreed moot. In my opinion, an extension of the scope of this action by the Court is unwarranted. Historically, the action is a creature of the jurisprudence. An equitable remedy, it was designed to operate in a sphere where remedies at law are inadequate. Lacroix v. Villio, supra; Amrheim v. Champion, supra. A second, and perhaps stronger, reason militating against such an extension is that in the adoption of the Code of Civil Procedure the available real actions have been simplified and liberalized. See Arts. 3651-3751, LSA-C.C.P. The Court should not lend its sanction to a usurpation of the function of these carefully devised remedies by a non-statutory action. See Davidson v. McDonald, 126 La. 539, 542 , 52 So. 758, 759 . As I view it, the petition discloses that plaintiffs are asserting ownership against defendants in possession. It fits precisely the definition of a petitory action. Art. 3651, LSA-C.C.P. The state is an indis-' pensable party. Assuming, however, that the allegations of the petition relating to" possession are equivocal, then the case should be remanded for the reception of evidence on the issue of possession as a basis for the disposition of the exceptions. Art. 930, LSA-C.C.P. For the reasons assigned, I respectfully dissent.