Dainow, Joseph

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Louisiana Law ReviewVolume 14 | Number 1The Work of the Louisiana Supreme Court for the1952-1953 TermDecember 1953Civil Code and Related Subjects: PrescriptionJoseph DainowThis Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationJoseph Dainow, Civil Code and Related Subjects: Prescription, 14 La. L. Rev. (1953)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol14/iss1/26WORK OF THE SUPREME COURTthat an award of custody properly made would have to be givenfull faith and credit in other states until a new award weremade for cause.50 There could then be no question of the rightof a custodian to take a child to another jurisdiction to liveand therefore there would be a rule of law much more con-sistent with what one ordinarily would expect in such circum-stances.Other custody pronouncements followed familiar patterns.The Supreme Court continued to interpret Article 157 of theCivil Code to mean that the mother is to be preferred to thefather in custody cases, except where she is morally unfit, in-capable of caring for the children, or mistreats them, whetheror not she has been awarded the divorce or separation. 1 Per-haps the dictum on the subject in Wilmot v. Wilmot is the strong-est statement yet made about it. 5 2 In two decisions the courtaffirmed the possibility of redetermining the custody issue afterchanges in circumstances of the parents and the children.55There is no express legislation on this subject covering instancesnot involving serious danger to the physical or moral welfareof the children,5 4 and these decisions seem to be wise applica-tions of the authority granted judges under Article 21 of theCivil Code. Finally, in one instance, the court explained againthat the juvenile courts do not have jurisdiction in custodycases unless the child is "neglected." 5PRESCRIPTIONJoseph Dainow*The purpose and policy of liberative prescription are toremove doubt and uncertainty by fixing a time limit withinwhich rights must be exercised. However, the exact legal na-50. See Goodrich, Conflict of Laws, § 136 (3 ed. 1949).51. State ex rel. Mouton v. Williams, 222 La. 457, 62 So. 2d 641 (1952);Rainwater v. Brown, 221 La. 1033, 61 So. 2d 730 (1952); Liner v. Liner, 222La. 789, 64 So. 2d 4 (1953); Estopinal v. Estopinal, 66 So. 2d 311 (La. 1953);Wilmot v. Wilmot, 223 La. 221, 65 So. 2d 321 (1953).52. 65 So. 2d 321, 325.53. Sampognaro v. Sampognaro, 222 La. 597, 63 So. 2d 11 (1953); Pepitonv. Pepiton, 222 La. 784, 64 So. 2d 3 (1953).54. La. R.S. 1950, 9:551-553, and of course the legislation on the authorityof the juvenile courts, for example, La. R.S. 1950, 13:1567, 1697, and 1806.55. In re Pratts, 222 La. 126, 62 So. 2d 124 (1952).* Professor of Law, Louisiana State University.1953]LOUISIANA LAW REVIEWture of the rules which embody these limitations is not alwaysthe same; it would be an overstatement to say that the differ-ences are always observed clearly and applied accurately. Thetexts themselves are not always very helpful. Thus, liberativeprescription is described as "discharging debts" in one articleof the Civil Code,1 and "by which debts are released" inanother.2 From these it follows that prescription is "a peremp-tory and perpetual bar to every species of action"3 and thatthe "courts can not supply the plea of prescription. '4 Accord-ingly, in these cases, the failure of a party to plead the pre-scription must result in enforcement of the cause of action,which is not extinguished.Nevertheless, other provisions in closely related articlesof the Civil Code use language of extinguishment in stating arule of prescription. Throughout the various parts of the CivilCode (and statutes) there are time limits after which certainrights no longer exist or are extinguished.5Where the liberative prescription is merely a bar, it mustbe pleaded. Where the limitation is one of extinguishment, itwould not appear necessary for defendant to plead, but it shouldrather be for the plaintiff to assert and prove the continuedexistence of his cause of action despite the lapse of the specifiedtime. Another distinction is between the liberative prescrip-tion, which is merely a bar and accordingly subject to inter-ruption and suspension, and the limitation in the nature of aforfeiture where a cause of action is established with a specifiedduration after which it automatically ceases to exist. Some-times the words "peremption" and "forfeiture" are used todescribe the rules which produce extinguishment instead of abar. The classification or characterization of a particular ruleof limitation is naturally a vital question, especially wherethe specified amount of time has elapsed between the creationof the original cause of action and the institution of suit toenforce it.One such problem was presented in the case of Wise v.Watkins,6 where the question at issue was the retention or loss1. Art. 3457, La. Civil Code of 1870.2. Art. 3459, La. Civil Code of 1870. See also Arts. 3528 and 3529, La.Civil Code of 1870.3. Art. 3459, La. Civil Code of 1870.4. Art. 3463, La. Civil Code of 1870.5. E.g., Arts. 191, 1561, 1994, 2498, 3466, La. Civil Code of 1870.6. 222 La. 493, 62 So. 2d 653 (1952).[VOL. XIVWORK OF THE SUPREME COURTof mineral rights. The original mineral rights were created byreservation in a conveyance of the land and were thereforeclassified as a servitude 7 for which there is a prescription often years in case of non-use." By reason of the language inArticle 783 that "Servitudes are extinguished: . . . 2. By pre-scription resulting from non-usage of the servitude during thetime required to produce its extinction," and in Article 789that "A right to servitude is extinguished by the non-usage ofthe same during ten years," and in Article 3546 that "Therights of usufruct, use and habitation and servitudes are lostby non-use for ten years," the court classified this prescriptionas one of extinguishment. (Italics supplied.) Accordingly, areference to these mineral rights in a deed executed after theten-year period of non-use was held to be unavailing as anacknowledgment to renounce a prescription already accrued 9or as the creation of a new servitude, because there was noexpressed or implied intent to do either of these things. Pre-sumably this prescription can be interrupted while running,or renounced after completed, if the acknowledgment is accom-panied by an expression of intent to that effect; this would beinconsistent with its classification as a peremption or forfeiture.In a dissenting opinion, Justice Hamiter asserted the legalarguments that the accrued prescription of a mineral servi-tude can be renounced under Article 3460, and that the writtenacknowledgment of the owner of the servient estate sufficesto establish a mineral servitude under Article 770. However,the weight of opinion as to the policy objectives was not onhis side.In the case of Succession of Pizzillo,1o the claim of the de-cedent's adopted child was disputed by the surviving spouseon the ground that the purported adoption was void becauseit did not conform to statutory requirements in effect at thetime. The court sustained the. adoption by reason of the pro-vision in the 1932 validating statute,11 which set a six-month7. Wemple v. Nabors Oil & Gas Co., 154 La. 483, 97 So. 666 (1923); Loganv. State Gravel Co., 158 La. 105, 103 So. 526 (1925). There is no attempt hereto consider the questions that might arise where mineral rights are classi-fied as lease rights, and where the three-year prescription of Article 3538might be involved.8. Arts. 789, 3546, La. Civil Code of 1870.9. Arts. 3460-3461, La. Civil Code of 1870.10. 223 La. 328, 65 So. 2d 783 (1953).11. La. Act 46 of 1932, § 13.19531LOUISIANA LAW REVIEWlimitation on actions to annul adoptions prior to that date.Although the statute used the phrase "shall be prescribed,"the court classified the limitation as one of peremption becausethe statute created a right of action of limited duration: "Thetime allotted is integral to the right of action; it could notbe suspended or interrupted for the various reasons applicableto periods of prescription. '12 The lapse of the statutory periodoperated as a complete extinguishment of the right of action;since there was no right of action in the present case, therewas no need for any plea to be interposed against it.It is not within the scope of these observations to considerwhether there are also further differences in the nature oflimitations which are called peremptory and those which arecalled periods of forfeiture, or whether either of these is differ-ent from the provision which creates a cause of action witha specific limited duration. There are important implicationsin each classification, and a clearer delineation of all of themwould be a contribution in an anticipated Civil Code revision.Article 3543 of the Civil Code provides a prescription tocure "informalities of legal procedure" in public sales. In Hicksv. Hughes,13 it was held that a sale of succession property madeon the order of a clerk of court is not within the scope of thisrule because the absence of a statement of debts of the suc-cession14 was more than a procedural informality; it was a juris-dictional requirement and an indispensable condition for theclerk's exercise of this authority. This holding with referenceto the clerk is distinguished from the succession sale made onthe order of a judge,1" where the absence of a statement ofdebts was treated as a procedural informality within the appli-cation of Article 3453 because the judge's authority exists inde-pendently of the statement of debts.In another aspect of the Hicks case, the court held that, sincethe purported sale was an absolute nullity, it could not be a"just title" for the ten-year acquisitive prescription. Underthe facts of this case, the defect was one which must be con-sidered-in the light of existing law-as patent on the face ofthe title. An absolute nullity is deemed never to have had12. 65 So. 2d 783, 786 (La. 1953).13. 223 La. 290, 65 So. 2d 603 (1953).14. La. R.S. 1950, 13:901.15. Thibodaux v. Barrow, 129 La. 395, 56 So. 339 (1911).[VOL. XiVWORK OF THE SUPREME COURTany existence,' 6 but it is not always clear what is an absolutenullity.The acquisitive prescription of thirty years-without goodfaith or just title-is based entirely upon continuous possessionfor the required time, and is limited to the property which is"actually possessed by the person pleading it. 1" In Parham v.Maxwell,18 there was evidence that crops were made and cattlepastured at irregular intervals on the disputed land, as wellas occasional fence repairs and use of an old road, but the evi-dence was "of a vague and unconvincing character."'19 Whilethis decision is based on a simple inadequacy of proof, it reas-serts the basic principle of a restrictive attitude towards theacquisitive prescription of thirty years and emphasizes the re-quirement of conclusiveness of the proof of possession whichmust be established by the person pleading this prescription.PROPERTYJan P. Charmatz*Only one case of outstanding importance in this field wasdecided by the Supreme Court during the past term. In HumbleOil & Refining Co. v. State Mineral Board' a controversy over theownership of the bed of a navigable lake, the same problemwhich had given rise to the much discussed decisions in State V.Erwin2 and Miami Corporation v. State3 was again presented tothe court, only this time in a different context.4 The facts of thecase and a detailed analysis of the decision will be found else-where in this issue.5 The result of the decision is, just as in Statev. Erwin, recognition of private ownership of beds of navigablelakes. In neither case was there any dispute about the fact thatthe lakes in question, Duck Lake and Calcasieu Lake, were navig-able at the time of the decision and in 1812 when Louisiana was16. 1 Planiol, Traitd 2lmentaire de Droit Civil, no 2662 (12 ed. 1937).17. Art. 3503, La. Civil Code of 1870.18. 222 La. 149, 62 So. 2d 255 (1952).19. 222 La. 149, 155, 62 So. 2d 255, 257.* Visiting Research Associate Professor of Law, Louisiana State Uni-versity; Faculty Editor, LOUISIANA LAW REVIEW.1. 223 La. 47, 64 So. 2d 839 (1953).2. 173 La. 507, 138 So. 84 (1931).3. 186 La. 784, 173 So. 315 (1936).4. See infra note 10.5. See Note, infra p. 267.1953]

Civil Code and Related Subjects: Prescription

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Civil Code and Related Subjects: Prescription

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