(1) The main defense relied upon by defendants is their possession as owners of the 7.35 acres in dispute, continuously in excess of thirty years. Such a possession has the effect of vesting in defendants a prescriptive title to the property. Article 3499 of the Revised Civil Code provides: "The ownership of immovables is prescribed *Page 777 for by thirty years without any need of title or possession ingood faith."
As to the facts of possession in the defendants, the Judge of the lower court said in his written opinion in this case:
"In the early Nineties, Mr. W.H. Mitchell, the deceased husband and father of the defendants, bought out the improvements of one Thompson, who held a government claim and was trying to homestead. The improvements consisted of a little clearing and a small house. Mr. and Mrs. Mitchell moved into the house inDecember, 1896, and made a homestead entry on certain land lying immediately north and adjoining the tract on which the house was situated. Finally receiving a patent in 1903, Mr. Mitchell gradually cleared up more land and built a fence around the southboundary of the Seven Acre Tract. Later developments showed that the Seven Acre Tract was not included in the homestead land but was a part of Mr. Foscue's property, and lay immediately south of and adjoining the homestead.
"Mr. Mitchell and his family lived in the original house built by Thompson for some four or five years, and then built another house considerably north but still in the main, on the Seven AcreTract. Some part of this last house may have been on the homestead. He and his family lived in this last house until about 1920, and cultivated the land included in the Seven Acre Tract. He moved away in 1920 to some place near Vivian, but continued tocultivate in whole or in part the Seven Acre Tract until 1935, dying in the spring of 1935. What became of the last house *Page 778 on the property is not disclosed by the record, but no part of it was there in 1936, except a few old rocks hidden in the weeds.
* * * * *
"Under the evidence, there cannot be any doubt as to the actualphysical possession of the Mitchells for more than thirty years, but the main question is whether this possession during all of those years was as owner, or merely by the sufferance and permission of Mr. Foscue." (Italics ours.)
(2) In the original opinion of this Court, after reviewing the facts of the case, it is said:
"Under the evidence contained in the record there cannot be anydoubt as to the actual physical possession of the Mitchells formore than thirty years. Defendants contend that this possession was as owners and plaintiffs contend that it was merely by the sufferance or permission of Mr. Foscue." (Italics ours.)
(3) To offset the admitted actual possession of the Mitchells and its legal effect, plaintiffs rely upon the evidence of three witnesses who testified that W.H. Mitchell, deceased, during his lifetime verbally acknowledged title to the Seven Acre Tract in John W. Foscue, one of the plaintiffs.
One of the witnesses of plaintiffs is Sam Mitchell, a son of W.H. Mitchell, deceased. He is an employee of the Magnolia Petroleum Company, one of the plaintiffs in the suit, who acquired the mineral lease made by Foscue to R.W. Norton. He testified that he was forty-two years old, at the time of the trial of the case, and that when he was a boy eleven or twelveyears old, his father, W.H. Mitchell, deceased, *Page 779 met Mr. Foscue near the 7.35 acre tract in dispute, and asked Mr. Foscue if he wanted anything to show he had the land in possession and he told him no, to go ahead and cultivate it, that he was not uneasy as long as he lived. T. 171, 172, 173.
That a boy of eleven or twelve years of age would appreciate the significance of, or remember, word for word, a conversation of this character thirty years afterwards, is not only unreasonable, but incredible. If such a conversation took place, it is passing strange that Mrs. Minnie Mitchell, the mother of the witness, and his brothers and sisters never heard the husband and father make any statement during his lifetime that cast any doubt upon his possessing as owner. Besides, Mr. Foscue, as a witness in his own behalf, had no recollection of such conversation. T. 335; 341; 367 and 368; 351 and 352; 363; 372. T. 438, 439. (Testimony of Foscue.)
Although plaintiffs seek to corroborate the testimony of Sam Mitchell during a visit made by him to Mr. Jim Houston for the purpose of securing his advice, when the matter of leasing the 7.35 acre tract came up, yet the testimony of Mr. Houston fails to show, upon the occasion of this visit, that Sam Mitchell told him of any conversation between Mr. Mitchell and Mr. Foscue in 1905 or 1906, or at any other time.
With reference to this visit, Mr. Houston said:
"Q. I would like for you to state in substance, Mr. Houston, what Sam said to you on that occasion. *Page 780
"A. Sam came in the bank and brought a lease along with him, and said he wanted me to look over it then. I looked at it and I asked Sam if he owned any of the land or claimed any of it. He said `No.' I said `You do not have any right to sign it.' I asked Sam `What would your father do about it?' He said he didn't believe his father would claim it. I told Sam that I would not sign the lease." T. p. 480.
Mr. Foscue was the only possible witness who could have corroborated the testimony of Sam Mitchell as to the allegedverbal acknowledgment of his father to Mr. Foscue made thirty years ago. The only persons stated to be present at this alleged conversation by Sam Mitchell were Mr. Mitchell, the deceased, Mr. Foscue, and Sam Mitchell, son of the deceased. Mr. Foscue failed to corroborate this statement of Sam Mitchell.
If the testimony of Sam Mitchell as to the conversation that he said took place between his father and Mr. Foscue was true, this witness already knew that "he did not own any of the land or claimed any of it", at the time of his visit to Mr. Houston, and why should this witness seek the advice of Mr. Houston as to signing the lease, as such advice was wholly unnecessary. Why should he state again that "he didn't believe his father wouldclaim it"?
The answer to these questions is obvious. This witness was attempting to manufacture some evidence, of a more recent date, that his father did not claim the land as owner, but held it merely by the sufferance of Mr. Foscue. All of this evidence, however, is but a repetition, in a different form, of the *Page 781 uncorroborated testimony of this witness, and in what possible way can such evidence be considered as a corroboration of his testimony as to a verbal acknowledgment of his father alleged to have been made thirty years ago?
Mr. Houston does not testify to any independent fact within his own knowledge that tends to corroborate the testimony of Sam Mitchell, who did not sign the lease, it is true, as advised by Mr. Houston. Yet in direct contradiction of his statement to Mr. Houston, "that he did not claim any of the land", Sam Mitchell demanded of and received from his mother $1,250.00 cash for a deed conveying his interest to her. T. 38 and 39; 176, 429.
It is indeed most unnatural that Sam Mitchell, the son of W.H. Mitchell, Sr., deceased, should take the witness stand in this case and testify against the ownership by his widowed mother and by his brothers and sisters, of this tract of valuable oil land. That his testimony was fabricated cannot be doubted.
As stated by defendants in brief filed January 5, 1938, at page 20:
"The record shows that Sam Mitchell refused to sign the oil and gas lease that was executed by his mother, brothers and sisters, covering the Seven Acre Tract, giving as his reasons that if he did, he would lose his job with the Magnolia Petroleum Company, and the record makes it clear that in the negotiations which resulted in Sam Mitchell being paid $1250.00, to quit-claim his interest to his mother, he, at no time, made any statement that indicated that his father did not claim, during his lifetime *Page 782 the Seven Acre Tract. In fact, he repeatedly stated in the presence of his mother, to Mr. Elmo P. Lee, attorney for the lessees, that his father did claim it, and had been in physical possession of it from about the year 1896. Tr. p. 529."
Again it is stated by defendants in their brief at pages 21 and 22:
"That Sam Mitchell was actuated by a fear that he would be discharged by the Magnolia Petroleum Company, on account of the family claim to said tract, just as he had previously been discharged by R.W. Norton on account of said claim by his family, is clearly shown by the testimony. Mr. F.G. Rives, field superintendent of R.W. Norton, on the trial of the merits, beginning at page 491 of the transcript, testified that he, as Superintendent for R.W. Norton, discharged Sam Mitchell on account of the claim his family was asserting to said Seven Acres, and that he so informed Sam, when he discharged him.
"F.G. Rives, as a witness for plaintiffs, said:
"Q. Would you mind telling us why he was discharged?
"A. Well I really believed at that time that Sam might have been telling me one thing and doing something different.
"Q. About what?
"A. About the influencing of his people to encourage thisclaim.
"Q. This claim against the Seven Acres?
"A. Yes. However, I was badly mistaken, I guess. Sam tried to tell me, that he was not, that he was not encouraging *Page 783 them; that he was trying to discourage them.
"Q. Did you tell him when you let him out that you were letting him out because of the fact that he was having something to do with the leasing of this seven acres?
"A. Yes, I told him that I thought that.
"Q. Told him you thought it and you told him you were lettinghim out on that account?
"A. Yes." Tr. 497 and 498.
(4) The other two witnesses relied upon by plaintiffs to establish verbal acknowledgments by W.H. Mitchell, deceased, are John W. Foscue, one of the plaintiffs, and a timber estimator employed by Mr. Foscue, by the name of Reynolds.
The testimony of each is as follows:
By Mr. Foscue:
"Q. You heard Mr. Reynolds testify about Mr. Mitchell going with you?
"A. Yes sir.
"Q. Did Mr. Mitchell go with you over the property?
"A. Yes.
"Q. Did anyone else go along?
"A. No one except Mr. Reynolds.
"Q. Were you present when the party came to the Seven Acres that is now in controversy?
"A. Yes, I was.
"Q. What was said about the Seven Acres at the time, Mr. Foscue?
"A. Well, as near as I recall Mr. Mitchell and Mr. Reynolds — Mr. Reynolds said *Page 784 `Some one is cultivating part of your land.' Mr. Mitchell said `Yes.' He did not say it was through error, but he said `Isuppose I might owe something for cultivating it.'
"Q. Was anything else particularly said about the money?
"A. I think that I told him, I had a good deal of land and it was not bringing in anything, and I did not object to his cultivating it, as long as he knew it was my land.
"Q. After the occasion when you were up there with Mr. Reynolds and these comments were made about possibly paying you some rent,when if at all, was that subject discussed after that between you and Mr. Mitchell?
"A. On some trip made there, but I don't remember how long afterwards it was.
"Q. On that subsequent trip, what was said about the matter?
"A. I believe that I had been notified that some one was squatting on my land and I never knew where the lines were and Iwent to Mr. Mitchell's house, South East of Vivian to see him, and get him to go with me. He said `You rest easy on that. I saw these parties and they were under the impression it was public land, and as soon as they found it was your land they moved off'. He then promised that he would look after the timber in connection with my land." T. pp. 201 and 202.
"Cross-Examination. "Q. Mr. Foscue I understood you to say that you were in there about 1870?
"A. Yes, sir, 1873 or 1874 — somewhere along in there. *Page 785
"Q. I also understand you to say that from 1884 until about 1902 that you had never been on the property that you claim possession of?
"A. Well whatever year it was that the Black Bayou (Lumber Co.) began in there. Somewhere around 1900 — somewhere around there.
"Q. At that particular time did you go to the seven acres which is involved in this suit?
"A. Well where this goes, we went in there to estimate timber.
"Q. Well then did you go on this seven acres?
"A. Well I might have but I don't remember now.
"Q. When is the first time that you went on this seven acres that is involved in litigation in this suit?
"A. The first time I was there was when I was there with Mr. Reynolds when he was estimating timber in 1925.
"Q. You had never, before this particular time, been on this seven acres?
"A. I don't know. I have been along there so many times I could not remember.
"Q. You could not swear?
"A. No, sir. Tr. pp. 207 and 208.
"Q. Independent of that one trip that you made there with Mr. Reynolds in 1925, you say that you have never seen Mr. Mitchell or any of his family out there on this seven acres of land that is involved, or on his land north of that.
"A. Well there were several there on the place. *Page 786
"Q. But, you never met Mr. Mitchell?
"A. Well I met him in 1925.
"Q. Before 1925?
"A. Not that I remember of. I might have but I don't remembernow.
"Q. Mr. Foscue, did Mr. Mitchell ever promise to pay you anyrent on that land?
"A. No, sir, just said `I suppose I owe you a little bit.'
"Q. Do I understand you to say that he said `I suppose I may owe some rent?'
"A. Yes, that was the substance.
"Q. Has he ever promised to pay any land rent?
"A. I never asked him for rent. T. p. 209.
"Q. On the occasion when you asked him to investigate whether or not there were some squatters on your land, did he promise on that occasion to pay you any rent on that seven acres?
"A. No, sir.
"Q. There was nothing said about it, was there?
"A. No, sir, he just said that he would look after my lands.
"Q. He would see that no one cut the timber?
"A. Well, keep me posted.
"Q. That was all that was said?
"A. That is all that I remember." Tr. p. 211.
Mr. Foscue testifies positively that the first time he was on this seven acre tract was "when I was with Mr. Reynolds *Page 787 estimating the timber in 1925". He further testifies that he met Mr. Mitchell in 1925, and does not remember meeting him before 1925, and that no one else went along "except Mr. Reynolds".
Mr. Reynolds also testified that it was in May 1925 that he and Mr. Foscue and Mr. Mitchell were on the seven acre tract, and that no one else was along with them. T. 184, 185.
This testimony brands as utterly false the testimony of Sam Mitchell, who testified that in the year 1906, when he was a boytwelve years old, his father, W.H. Mitchell, deceased, met Mr. Foscue near the 7.35 acre tract and that his father made the alleged verbal acknowledgment to which he has testified in this case. Sam Mitchell is therefore eliminated in this case as a witness unworthy of belief.
(5) The other witness, besides Mr. Foscue, relied upon by plaintiffs to establish verbal acknowledgments by W.H. Mitchell, deceased, is a timber estimator employed by Mr. Foscue, by the name of Reynolds.
"By Mr. Reynolds:
"Q. Do you recall going to the tract of land, marked on the map in pink, which tract is south of Northwest Quarter of the Southeast Quarter of Section Twenty, during the course of your cruise of this tract of timber?
"A. Yes, sir.
"Q. What, if anything did Mr. Mitchell say about that tract?
"A. We went to the corner and come down to the field that was in cultivation *Page 788 and he showed me the line through, and I says, Mr. Foscue, someone is working part of the land and he says `Yes by mistake I am working part of Bro. Foscue's land here.'
"Q. Through mistake he was working part of Mr. Foscue's land.
"A. Yes, sir. He showed me the line there, pointed to it, we did not follow it, he pointed it across the field.
"Q. Was working part of Bro. Foscue's land.
"A. Yes, sir.
"Q. Not anything further mentioned about the matter, or giving him something to show for it?
"A. Yes, sir, said he would pay rent or something, said he was going to pay a little rent or something like that. We were not there but a very few minutes.
"Q. Who made the remark about paying rent?
"A. Mr. Mitchell.
"Q. Mr. Mitchell.
"A. Yes, sir." T. pp. 185 to 186.
"Cross-Examination. "Q. You thought that there was something said about rent?
"A. The best that I remember there was a conversation about that.
"Q. What was said about it?
"A. If I remember right he made the remark `I expect that I owe Bro. Foscue a little rent on this piece of land'. *Page 789
"Q. Expect I owe a little rent?
"A. Yes, sir `I should pay Bro. Foscue a little rent'.
"Q. Should pay a little rent.
"A. Yes, sir.
"Q. He said that?
"A. `I expect I owe it'.
"Q. Mr. Foscue was there?
"A. Yes, sir, stood there talking about it.
"Q. Would you testify that Mr. Mitchell told Mr. Foscue that he was going to pay rent?
"A. Didn't say he was going to, says `He should pay it.'
"Q. Would you testify that Mr. Mitchell told or promised to pay rent?
"A. He did not say `I promise,' says `I should do it.'
"Q. Didn't say that he agreed to?
"A. No, He says `I should pay a little rent on it.'" Tr. pp. 192 and 193.
Neither Mr. Foscue nor Mr. Reynolds testified that Mr. Mitchellpaid any rent, or even agreed to pay any rent for the 7.35 acres in dispute in this case.
Mr. Foscue testified: "Mr. Reynolds says `Some one is cultivating part of your land.' Mr. Mitchell said `Yes.' He didnot say it was through error, but he said `I suppose I might owe something for cultivating it.'"
Mr. Foscue also testified:
"Q. Mr. Foscue, did Mr. Mitchell ever promise to pay you any rent on that land? *Page 790
"A. No, sir, just said `I suppose I owe a little bit.'"
Mr. Reynolds testified:
"Q. Would you testify that Mr. Mitchell told Mr. Foscue that he was going to pay rent?
"A. Didn't say that he was going to, says `He should pay it.'
"Q. Would you testify that Mr. Mitchell told or promised to pay rent?
"A. He did not say `I promise' says `I should do it'.
"Q. Didn't say that he agreed to?
"A. No, sir, says `I should pay a little rent on it.'"
Mr. Foscue also testified: "I think that I told him (Mitchell) I had a good deal of land that was not bringing in anything and that I did not object to his cultivating it, as long as he knew it was my land."
However, there is nothing in Mr. Reynold's testimony to this effect. He does not even suggest such a thing. Little effect therefore can be given to the statement that "I think that I told him". To think that he told him does not establish the fact thathe told him. Necessarily, this Court is not justified in concluding that as a result of the conversation Mitchell was told by Foscue that he did not want any rent for the small acreage, and that he could go on cultivating it.
(6) The above verbal acknowledgments attributed to William H. Mitchell, a dead man, are far from being sufficient to expressany clear or specific intention on his part to interrupt the accruing prescription *Page 791 of 30 years, 29 years of which had accrued in the year 1925, when these alleged verbal acknowledgments are testified to by the two witnesses to have been made.
The testimony as to the oral statements of a person deceased is regarded by the courts as the weakest kind of evidence, and subject to the closest kind of scrutiny. Bodenheimer v. Executors of Bodenheimer, 35 La.Ann. 1005; Bringier v. Gordon, 14 La.Ann. 274; Lea v. Polk County Copper Co., 21 How. 493, 16 L. Ed. 203; 22 Corpus Juris, Sections 318 and 319, pages 289, 290, 291.
In Bodenheimer v. Executors of Bodenheimer, 35 La.Ann. 1005, a leading case by this Court, it was held:
"Extra-judicial admissions of a dead man are the weakest of allevidence, since they cannot be contradicted, and no fear of detection in false swearing impends over the witness." (Italics ours.)
With reference to such admissions so as to interruptprescription, this Court in Bringier v. Gordon, 14 La.Ann. 274, in the body of the opinion, said:
"The evidence offered consists of the verbal admissions or acknowledgments of the deceased, to a single witness, made at a particular time and place, when the deceased and witness were alone.
"The impossibility of contradicting a witness, under such circumstances, and his entire immunity from temporal punishment for false swearing, have induced the courts to receive such testimony with disfavor, and to declare it the weakest *Page 792 species of evidence known to the law. * * *
"The rule is general, and so well founded in reason and justice, that the high character of a particular witness cannotbe permitted to form an exception to its general application." (Italics ours.)
The Supreme Court of the United States in Lea v. Polk County Copper Company et al., 21 How. 493, 16 L. Ed. 203, had before it a case in which there was offered to offset the legal effect of a plea of prescription based upon continued, actual possession of real estate, the testimony of two witnesses, who swore that the occupant during his lifetime admitted ownership in another, and that he had possession for that other.
Beginning on page 500 of 21 How., on page 206 of 16 L.Ed., the organ of the Court said:
"To overcome the evidence of continued possession on the part of Davis, two witnesses were produced by the complainant, to wit: Crawford Broswell and Jesse Shubird. The former swears that he resided in Ducktown from June, 1845, to October 1850; that he knew John Davis, and the place Wallace improved. `I at one time (says he) proposed purchasing that eighty acres where the Wallace improvement was. Davis told me that he had [been] only theoccupant of Luther Wallace; that he did not own the land, andthat he had moved the improvements off to another place; and,having asked him who owned the land, he stated it was entered bya man by the name of Lea. He stated he had moved off the house and fruit trees, and I think he also named the time.' Says he thinks the conversation *Page 793 took place in July, 1848. In answer to another question, the witness says: `Mr. Davis showed me where he had moved the house from, and I understood he had moved all the improvements off that place, and the stock was running on the land that had been enclosed, and, if any of the fencing was left, I did not notice it. The place was grown up very much with bushes. There might have been some rotten rails scattered where the fence was put, lying amoung the bushes and saplings.'
"This is represented, also, as having taken place in July, 1848; and the witness swears that, in the succeeding August, Davis showed him where the Wallace house had stood.
* * * * * *
"In 1856, when these depositions were taken, John Davis wasdead, and courts of justice lend a very unwilling ear tostatements of what dead men had said."
In this case, Mitchell is dead, and a like rule should apply, as Foscue and Reynolds were the only witnesses present when theseverbal acknowledgments are said to have been made, and there is no other witness to contradict them.
Besides, the alleged verbal acknowledgments of W.H. Mitchell, Sr., deceased, are wholly insufficient to show any clear orspecific intent on the part of W.H. Mitchell, the dead man, to interrupt the accruing prescription of 30 years in this case. As such acknowledgments are stated by these two witnesses to have been made, after 29 years of the prescriptive period had already accrued, the strongest kind of legal presumption existed in favor of W.H. Mitchell, deceased, *Page 794 that he possessed the land as owner, and not by mere sufferanceor permission of Foscue.
(7) At the date of the death of W.H. Mitchell, Sr., in the year 1935, he left a surviving widow in community, Minnie A. Mitchell, and the following children and sole heirs: Jessie Mitchell, minor, represented herein by Minnie A. Mitchell, her mother and Tutrix; Vassar M. Holt; W.H. Mitchell, Jr.; Charles F. Mitchell; Jack Mitchell; Harold G. Mitchell; Hattie M. Jordons; Wavie M. Kennedy, and Sam Mitchell, all of whom are made defendants in this suit.
In August 1936, a mineral lease on the 7.35 acres in dispute, was executed by defendants, except Sam Mitchell, to C.P. McCrary and A. Holiby, who, in the same month, executed an assignment of the lease to R.L. Bauman and McAlester Fuel Company, all of whom are also made defendants in this suit.
Sam Mitchell did not sign the lease, as he had sold his interest to his mother, Minnie A. Mitchell.
All of these defendants, except Sam Mitchell, have pleaded the prescription of Thirty Years acquirendi causa under Article 3499 of the Revised Civil Code, in a joint answer filed by these defendants.
In the original opinion and decree handed down in this case, the claim of title by the defendants, the widow and heirs of W.H. Mitchell, Sr., deceased, to the 7.35 acres in dispute, was rejected, the plea of prescription of Thirty Years acquirendi causa, tendered by all of the defendants in the case, *Page 795 having been overruled, and judgment was rendered in favor of plaintiffs.
In our opinion, this judgment is erroneous, as the plea of prescription should have been maintained.
For the reasons assigned, it is ordered, adjudged and decreed that our decree herein rendered on original hearing be, and the same is, hereby annulled and set aside.
It is now ordered, adjudged and decreed that the plea of prescription of Thirty Years acquirendi causa, tendered herein by all of the defendants in the suit, be and the same is hereby maintained.
And, accordingly, it is further ordered, adjudged and decreed that there be judgment in favor of Minnie A. Mitchell, individually, as surviving widow in community of W.H. Mitchell, Sr., deceased; in favor of Jessie Mitchell, minor, herein represented by Minnie A. Mitchell, Natural Tutrix; and in favor of Vassar M. Holt; W.H. Mitchell, Jr.; Charles F. Mitchell; Jack Mitchell; Harold G. Mitchell; Hattie M. Jordans and Wavie M. Kennedy, the children and sole heirs of W.H. Mitchell, Sr., deceased, vesting a good and valid title in them to said Seven and 35/100 acres in dispute herein, under the prescription of Thirty Years, acquirendi causa, under Article 3499 of the Revised Civil Code, in excess of the lands embraced in the patent of date December 2d 1903, granted to W.H. Mitchell, Sr., by the United States Government, containing 112.36 acres; and vesting a good and valid title in R.L. Bauman and McAlester Fuel Company, defendants herein, by assignment recorded August 13, 1936, in Conveyance Records of Caddo Parish, Louisiana, *Page 796 of a certain mineral lease on said Seven and 35/100 acres, acquired by the assignors, C.P. McCrary and A. Holiby, from Minnie W. Mitchell, surviving widow in community, and the heirs of W.H. Mitchell, Sr., deceased, and recorded August 12th, 1936, in the Conveyance Records of Caddo Parish, Louisiana.
It is further ordered that plaintiffs pay all costs of this court and of the lower court.
Right of plaintiffs to apply for rehearing reserved.
ROGERS, J., dissents.