In the majority opinion it is said that "* * * if Arthur Thompson had actually acquired title to the tract of land in controversy prior to the assertion by the forced heirs of their rights to have the land brought back to the succession of Bartley [G.] Thompson so that they could *Page 511 obtain their legitimate portion, he, as a purchaser for valuable consideration on the faith of the public records, could defeat the rights of these claimants." With this conclusion I thoroughly agree.
I find myself in disagreement with the majority holding, however, that Arthur Thompson's rights can not prevail over those of the forced heirs since he is merely the holder of an option to purchase, obtained and duly recorded prior to his having received either actual or constructive notice of any adverse claims, which has been transformed into an executory contract to sell by virtue of his timely exercise of the option. His rights under the exercised option are, I think, just as conclusive against the heirs as they would have been had he actually acquired title to the property.
When an option is accepted within the time stipulated, the resulting contract may be specifically enforced by either party thereto. Revised Civil Code, art. 2462; Moresi v. Burleigh,170 La. 270, 127 So. 624. In so far as its registry operates to protect one purchasing real estate against the claims of others, a duly recorded option to purchase is as effective as an actual sale. Lehman v. Rice, 118 La. 975, 43 So. 639; Whited Wheless v. Calhoun, 122 La. 100, 47 So. 415; Kinberger v. Drouet,149 La. 986, 90 So. 367; Watson v. Bethany, 209 La. 989,26 So. 2d 12. An acceptance of an option within *Page 512 the period permitted, with respect to third persons, relates back to the time of recordation. Kinberger v. Drouet and Watson v. Bethany, both supra.
The distinction sought to be made in the majority opinion between a recorded option and a recorded deed (as they relate to forced heirs) very likely will be productive of anomalous situations. Suppose, in this case, that Jesse Thompson had sold the property outright to John Doe after having granted Arthur Thompson's recorded option, and the deed evidencing the sale had been recorded immediately upon its confection. As between Arthur Thompson and John Doe, under the registry laws of this state and in the absence of the claims of the forced heirs of Bartley G. Thompson, the rights of the former, on his exercising his option, unquestionably would prevail over those of the latter. But taking into consideration the claims of those forced heirs, who would be entitled to the property? Would John Doe be preferred because his rights prime those of the heirs, while Arthur Thompson's do not, even though Arthur Thompson's claim is superior to that of John Doe's in the absence of forced heirs? Or would the forced heirs be preferred because their rights prime those of Arthur Thompson and his in turn prime John Doe's even though John Doe's would outrank the heirs' rights had Jesse Thompson not granted the option to Arthur Thompson? *Page 513
The majority holding herein, I think, does violence to our laws of registry respecting immovables.
I respectfully dissent.