Gentilly Development Co. v. Carbajal

On the Merits. BRUNOT, J. The plaintiff and defendant, are co-owners, in indivisión, of a tract of land commonly known as Gentilly or Gentilly Ridge, situated in the Third district of the city of New Orleans, and containing 511.07 acres. This is a suit for the partition of said property. The prayer of the petition is for the appointment of a notary to make an inventory of the property, for the appointment of appraisers and experts to value the property and to report whether or not it is divisible in kind, and for a judgment recognizing plaintiff as the owner of two-thirds and the defendant as owner of one-third of the property, and decreeing a partition thereof by licitation, the sale to be made at auction by Edward O. Carrere, auctioneer, on terms to be fixed by the court, and referring the parties to Watts K. Leverich, notary public, to complete the partition. Before answering the suit, defendant filed several exceptions, dilatory' and otherwise, and a plea of estoppel. The exceptions were overruled, and the plea of estoppel was referred to the merits. The answer admits that the property is not divisible in kind, but it alleges -that the sale, to effect a partition of it, should be deferred because of abnormally low and -unsatisfactory real estate values in New Orleans, due to the unsettled condition of the flood control problem in Louisiana. The instrument upon which defendant’s plea of estoppel is based is the procés verbal by S. L. Jacobs, auctioneer, registered in C. O. B. 411, folio 370, of the sale by said auctioneer, for the Seeger heirs, of two tracts of land to Charles A. Tessier, Jr. This court held in Carbajal v. Tessier, 163 La. 894 , 113 So. 138 , which was a suit, filed by this defendant, to compel Charles A. Tessier, Jr., to comply with his bid and take title -to the property which had been 'adjudicated to .him, that the adjudicatee had the right to recede from the contract. The proeSs verbal referred to contains the following recital: “By reference to the certificates of the register of conveyances and recorder of mortgages in and for the parish of Orleans, annexed hereto, it- does not appear th’at said property has been heretofore alienated by the vendors or that it is subject to any incumbrance whatever; the vendors hereby declaring that the instruments recorded in the conveyance office for the parish of Orleans, as shpwn on-the ¡conveyance certifi-i cate annexed hereto, do not in any manner affect the title to the'property hereinabove described and hereby conveyed. Charles A. Tessier, Jr., by his individual signature hereto, expressly confirms tl\e fact that all rights in his favor arising from' or based upon the instrument registered in O. O. B. 411, folio 370, have ' been by him assigned and conveyed to the present purchaser.” The quoted recital is' relied upon by defendant as an “estoppel' by deed.” The property that Charles A. Tessier, Jr., bid in at the sale by S. L. Jacobs, auctioneer, was owned by the Seeger heirs, viz. Mrs. Manzella, Mrs. Bickmann, and Mrs. Henrietta S. Carbajal, in the proportion of one-third to each. After Mr. Tessier had declined to take title to the property, and while the suit was pending, which is reported in 163 La. 894 , 113 So. 138 , the plaintiff purchased from Mrs. Manzella and Mrs. Bickmann their two-thirds of the property, and Charles A. *911 Tessier, Jr., joined in said act individually, for the purpose of confirming his assignment to the plaintiff of any and all rights he may have had in the property as the result of the adjudication of it to him by the auctioneer. If defendant’s contention be correct, the Gentilly Development Company, Inc., declared in the deed by which it acquired the two-thirds of the property from Mrs. Manzella and Mrs. Bickmann for $977,-140.00 cash, that, at that time, and for some months prior thereto, it was vested with a complete title to, not only the property involved in this partition suit, but to all of the property described in the proees verbal registered in C. O. B. 411, folio 370. To maintain defendant’s plea of estoppel, we would be compelled to. hold that the recital quoted supra is destructive of the deed in which it appears. It is our opinion that the two district judges who passed upon and overruled defendant’s plea of estoppel correctly found that the quoted recital, made in the act of sale from Mrs. Manzella and Mrs. Bickmann to the plaintiff, was, in effect, a mere disclaimer of interest in the property by Charles A. Tessier, Jr., in favor of Gentilly Development Company, Inc. As between the parties to that act of sale, or their privies, we express no opinion as to the effect of said recital in the deed or «the extent to which said parties, or either of them, might invoke it, b,ut defendant is not a party to the deed from Mrs. Manzella and Mrs. Bickman to Gentilly Development Company, Inc., and it is the generally accepted rule that: “Estoppel by deed is operative only between the parties to the deed and to their privies; strangers to the deed are not bound by, and cannot invoke, the estoppel.” C. J. vol. 21, p. 1103; Branson v. Wirth, 17 Wall. 32 , 21 L. Ed. 566 ; Deery v. Cray, 5 Wall. 795 , 18 L. Ed. 653 ; Traver v. Baker (C. C.) 15 F. 186 , 8 Sawy. 535 ; Willis v. Sempe, 139 La. 877 , 72 So. 427 ; Saunders v. Busch-Everett Co., 138 La. 1049 ; 71 So. 153 ; Parley v. Frost-Johnson Lumber Co., 133 La. 497 , 63 So. 122 , L. R. A. 1915A, 200, Ann. Cas. 1915C, 717; Schultz v. Ryan, 131 La. 78 , 59 So. 21 ; Frederick v. Goodbee, 120 La. 783 , 45 So. 606 ; Lyons v. Lawrence, 118 La. 461 , 43 So. 51 . Defendant’s contention that the partition sale should be deferred because of the unsettled condition of the flood control problem of Louisiana ■ has become a moot question, and we are relieved of the necessity of determining whether it ever had any merit. For the reasons stated, the judgment appealed from is affirmed at appellant’s cost.