Opinion
No. 204.
June 25, 1924.
Cline Plauche, of Lake Charles, La., for plaintiff.
McCoy Moss, of Lake Charles, La., for defendant.
In Equity. Suit by the Pacific Improvement Company against Wm. W. Duson. On opposition of misjoinder, and alternatively to dismiss. Decree rendered.
Plaintiff sued to annul three special acts of reconveyance or dation en paiements upon the ground of error and fraud. It alleged that it was the holder of vendors' liens and mortgages upon the property, and that it agreed to take the lands back in payment of the debts; that after doing so it discovered that defendant had sold the timber on a part of the land to a third person, which accordingly reduced the value of the property; and that, if this had been known, plaintiff would not have accepted the retransfers. The prayer was that the conveyances be set aside and the mortgages reinstated.
Defendant has excepted, first, upon the ground that the transferee of the timber is a necessary party; and, second, that the bill should be dismissed as to that part of the lands lying in Acadia parish.
Misjoinder.
The purchaser of the timber is in no sense a party privy to the reconveyances of the property. It is true that, if the conveyances stand, the effect would be to cancel the mortgage as against the timber, because, when the vendor again became the owner of the land, the mortgage would be extinguished by confusion. However, if the allegations of the petition be true (and they must be taken as such for the purpose of the exception), then there was never an effective retransfer of the property and a consequent cancellation of the mortgage because of the fraud or error which accompanied it. The purchaser of the timber has not been led to change his position, nor could he be heard to oppose relief against the mortgagor. His situation would simply be restored to what it was before the alleged fraudulent or erroneous transaction took place, and with which he was in no wise connected. The mortgage contained the pact de non alienando, and he took the timber subject to the rights which flowed therefrom. The mortgage on the timber was never extinguished by confusion, if it be revived, because it was not reconveyed with the land to the vendor, and hence there was no unity of ownership and mortgage of the same thing in one person. Pugh v. Sample, 123 La. 791, 49 So. 526, 39 L.R.A. (N.S.) 834; Chaffe Brother v. Morgan, 30 La. Ann. 1307; Dawson v. Thorpe, 39 La. Ann. 366, 1 So. 686; Spencer v. Goodman Bradfield, 33 La. Ann. 898. For this reason I am of opinion that the purchaser of the timber is not a necessary party to this litigation.
On Motion to Dismiss.
As to the motion to dismiss, it appears that the retransfer of the property in Acadia parish was by a separate deed, both in the first and second instances, and hence can in no wise be affected by the two other contracts. I see no reason, therefore, why the bill should not be dismissed to that extent; and it is accordingly so ordered.