Opinion
No. 9883.
November 12, 1974. On Rehearing December 16, 1974.
APPEAL FROM 22ND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON, STATE OF LOUISIANA, HONORABLE THOMAS W. TANNER, J.
Charles M. Cassidy, Franklinton, for defendant-appellant.
Jim W. Richardson, Jr., Bogalusa, for plaintiff-appellee.
Before LANDRY, ELLIS and PICKETT, JJ.
Before LANDRY, SARTAIN and ELLIS, JJ.
This is an action to determine the respective interests of the parties to Lots One through Five, Block Five, of the Washington Addition to the City of Bogalusa.
Plaintiff, Laura Houston, born Laura Kilpatrick, in the town of Beaumont, Perry Country, Mississippi, based her claim on an alleged marriage to one Pearlie Warner, now deceased, on or about August 22, 1923. Mr. Warner acquired the property by three separate transactions in 1947. With respect to lots Three, Four and Five, the acts of sale show Pearlie Warner as the vendee. With respect to lots One and Two, the act of sale shows Pearlie Warner and the defendant, Flossie Mondy, as co-vendee.
Plaintiff contends that Pearlie Warner's interest became community property. The defendant raised an exception of no right of action which was referred to the merits. The exception was based on a certificate of marriage between one Arrie Murie and one Laura Kilpatrick. The Clerk of Court for Perry County, Mississippi, certified that the official records of that county show a marriage between those parties on January 11, 1920, celebrated by the Rev. C. Washington.
At the trial, plaintiff simply denied any knowledge of such a marriage. At that point, the trial judge stated he could not determine whether this marriage had taken place and overruled the exception, holding that the defendant exceptor had not carried the burden of proof.
We find that this ruling was erroneous. Under the provisions of our ancient documents law R.S. 13:3728-13:3731, the fact that an official record has been recorded for a period of thirty years establishes a prima facie presumption of its execution and validity. R.S. 13:3730 reads as follows:
"It shall be unnecessary for any ancient document, as defined in R.S. 13:3729, to be acknowledged or proven as provided by any act, statute or other law of the state in order for such ancient document to be admitted in evidence, and it shall be unnecessary to prove the execution of such document, the mere fact of such instrument having been recorded for a period of thirty years, as herein provided, being sufficient to establish a prima facie presumption of the execution and of the genuineness of such instrument."
In Watkins v. Zeigler, 147 So.2d 435 (La.App. 2nd Cir. 1962), the court held that under the ancient document statute, the burden of proof is upon those who assail the ancient document to overcome the presumption of its prima facie validity. Black's Law Dictionary defines the term "prima facie" as follows:
"At first sight; on the first appearance; * * * presumably; a fact presumed to be true unless disproved by some evidence to the contrary." (Emphasis supplied).
Once an ancient document is introduced into evidence, the burden of proof is upon the one who assails the document to overcome the presumption of its prima facie validity. To contradict the certificate of marriage between Arrie Murie and Laura Kilpatrick the plaintiff offered no writing or other evidence except her simple denial of the marriage. A simple denial by plaintiff in this instance is insufficient. She failed to show affirmatively that the record is in error or that if a marriage did take place it was terminated prior to the alleged marriage to Pearlie Warner.
We find the exception meritorious. This action should have been dismissed on that ground.
Should plaintiff refile this suit and succeed in showing that no impediment existed at the time of the alleged marriage to Pearlie Warner, we make the following observations. The record indicates a marriage between Pearlie Warner and the defendant Flossie Mondy in 1948. It is shown that the lots were unimproved when purchased in 1947, but thereafter improvements were constructed on some or all of them. The trial judge, in determining the fractional interests of the parties, apparently did not take into consideration the possibility of a putative marriage in favor of Flossie Mondy, or the value of any improvements made during the marriage. Although the trial court did not find the fractional interests to be the same on all of the lots, he failed to find which lot or lots were improved. Evidence should be adduced on these issues if the suit is refiled.
For the above and foregoing reasons, the judgment of the trial court in overruling defendant's exception of no right of action is reversed and judgment is hereby rendered in favor of defendant-appellant Flossie Mondy dismissing plaintiff-appellee's suit, at the latter's costs.
Reversed and rendered.
ON REHEARING
Pearlie Warner and Laura Kilpatrick were married in Washington Parish, Louisiana, on August 22, 1923. In the application for the license, Laura Kilpatrick swore that she had not been previously married.
On November 20, 1936, Woodie Houston and Laura Kilpatrick were married in Washington Parish, Louisiana. In the application for the license, Laura Kilpatrick swore that she had not been previously married.
By two deeds dated July 31, 1947, Pearlie Warner, recited to be the husband of Flossie Mondy, acquired Lots 3, 4, and 5 of Block 5 of the Washington Addition to the City of Bogalusa.
By deed dated August 20, 1947, Pearlie Warner and Flossie Mondy Warner, recited to be husband and wife, acquired Lots 1 and 2 of the same square.
On June 19, 1948, Pearlie Edger Warner and Flossie Mondy were married in Pearl River County, Mississippi.
On March 6, 1970, Pearlie Warner and Laura Kilpatrick were divorced.
On December 4, 1972, Laura Houston instituted this suit against Flossie Mondy, alleging herself to be the owner of an undivided one half interest in all of the above lots as the divorced wife of Pearlie Warner. It is alleged that Flossie Mondy might assert a claim to the property because of the recitations in the deeds that she was married to Pearlie Warner.
The principal defense made by Flossie Mondy is by way of an exception of no right of action, in which it is alleged that Laura Houston was legally married to one Arrie Murie when she married Pearlie Warner. In Support of the exception, defendant introduced into evidence a copy of a certificate of marriage between Arrie Murie and Laura Kilpatrick in Perry County, Mississippi, dated January 11, 1920.
The exception was referred to the merits, and on the trial of the case, Laura Houston denied any knowledge of a previous marriage. From other testimony, we gather that Pearlie Warner was deceased at the time of trial.
Under the above circumstances, we are persuaded that Flossie Mondy can have no interest in the property, other than as the purchaser of an undivided one half interest in Lots 1 and 2 of Square 5. She and Pearlie Warner were not married until after the acquisitions, and she can not enjoy the status of a putative wife in good faith as to property acquired prior to the marriage. She therefore has no interest in the subject matter of this suit, which is the purported ownership of community interest in the properties by Laura Houston.
There are, however, parties who do have such an interest and who are therefore indispensable parties hereto. These are the heirs of Pearlie Warner. This court has the authority to recognize the absence of indispensable parties and to remand for purposes of their joinder. Articles 927, 2164, Code of Civil Procedure. We are of the opinion that a judgment recognizing ownership of property by one party can not be rendered against another party who has no adverse interest therein and who is not in possession thereof. Article 3651, Code of Civil Procedure.
The judgment appealed from is therefore reversed and the case remanded to the trial court. Plaintiff is granted 60 days from the date hereof to join the heirs of Pearlie Warner as parties defendant, otherwise this case will be dismissed without prejudice. Costs of this appeal will be borne by plaintiff.
Reversed and remanded.