Smith v. Felton

WHIPPLE, C.J., concurring. The crucial issue herein is whether Mr. Felton could tack his possession on to that of his deceased parents for purposes of acquisitive prescription when a succession has not been opened and a judgment of possession has not been rendered. While the majority correctly relies on and discusses prior jurisprudence, I believe that this issue can be resolved under the clear and unambiguous language of LSA-C.C. art. 936, as enacted by Acts 1997, No. 1421 § 1, eff. July 1,1999, which provides: The possession of the decedent is transferred to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees. A universal successor continues the possession of the decedent with all its advantages and defects, and with no alteration in the nature of the possession. A particular successor may commence a new possession for purposes of acquisitive prescription. This article recognizes that all successors have rights that vest at the moment of death of the decedent. LSA-C.C. art. 936, Revision Commeni>-1997(b). Moreover, the clear language of the first paragraph of LSA-C.C. art. 936 provides that a decedent’s possession is transferred at the moment of death to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees. 1 Therefore, unless there is some reason that this article should not apply, pursuant to the clear language of LSA-C.C. art. 936, *449 Mr, Felton was able to continue the possession of his parents, he., the decedents, for purposes of acquisitive prescription even in the absence of the opening of a succession and a judgment of possession. Accordingly, I concur in the result reached by the majority, as I would affirm the decision of the trial court on the basis of LSA-C.C. art. 936.