text:
    Shadrock WILLIAMS et al., Appellants, v. ESTATE of J. D. LONG, Deceased, Appellee.
    No. AA-192.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1976.

      S. Gunter Toney, Tallahassee, for appellants.
    Thomas C. Wilkinson, Marianna, for ap-pellees.
   McCORD, Judge.

This is an appeal from an order determining beneficiaries in the Estate of J. D. Long, deceased. Appellant Shadrock Williams is the administrator of the estate, and the other appellants are the children of the decedent and his wife, Refair Long, who died in 1964. Appellees are the three children of Velma Brunson (Long) who contend they are the illegitimate children of the decedent and Velma. The order here appealed found appellees to be the illegitimate children of Long and entitled to participate and share in his estate in the same manner as if they were born in lawful wedlock.

Long’s original wife was Refair Long, and she continued to be his legal wife until she died in 1964. Appellants (except the administrator of the estate) are the children of that marriage as aforesaid. Velma testified that she began keeping company with Long in 1958 although Long was still married and living with his wife, Refair; that three children (the appellees) were born to her in 1960, 1963, and 1965 respectively; that Long was the father and that he was at the hospital in Georgia when each of the children were born; that she previously had married one Manuel Brunson in 1945 and that he left the same year and she did not see him again until 1974; that she never obtained a divorce from him. An affidavit of Manuel Brunson was filed by the administrator in which Brunson stated that he married Velma in 1945 in Georgia and lived with her until 1946; that he moved to Miami and married two other women without having obtained a divorce from Velma; that he had never received divorce papers from her.

The last name appearing on the birth certificates of two of the appellee children was Brinson (from Brunson). The last name appearing on the birth certificate of the third child was Borders (the mother’s maiden name).

Velma further testified that Long desired the children to carry his name but was told that the name of an unmarried father was not accepted. After the death of Long’s first wife, Refair, in 1964, he moved in with Velma and subsequently married her (though it was not a valid marriage because she had never been divorced from Brunson). Velma produced an application for a family insurance policy signed by Long on February 22, 1969. The policy' listed Velma as Long’s wife and the three appellees as his children. Carl E. Larson, the insurance agent who procured the application and had the insurance policy issued, testified by deposition that he visited Long’s home twice and that Velma and the appellee children were there. He could not recall whether Long or Velma gave him the names of the children to list as dependents. Stella May, a public health nurse, testified that Long brought his wife (Velma) and the three children to her for medical treatment and on one occasion he requested her advice on how to get the names of the children changed on their birth certificates.

The trial judge in the order here appealed made the following findings (finding No. 1 •is omitted as it relates only to the four original children of the marriage between Long and Refair):

“2. That in the year 1958, the deceased J. D. Long, although then married to Refair Long, began dating and having sexual intercourse with Velma Brunson (Long). That Velma Brunson (Long) had three children, to-wit: Larry Dean Long, born on August 28, 1960, Linda Faye Long, born on September 23, 1961 and Ronnie Arthur Long, born on February 4, 1963.
3. That J. D. Long held the children, Larry Dean Brinson (Long), Linda Faye Brinson (Long) and Ronnie Arthur Borders (Long) out to all the world as his. That J. D. Long went to the hospital with Velma Brunson (Long) each time these children were born; that he recognized his responsibility as a father to these children by taking them on a number of occasions to the public health nurse, and on one occasion, sought information from the public health nurse as to how he could change these children’s name. •
4. That J. D. Long, after the death of his wife, Refair Long, entered into a ceremonial marriage with Velma Brunson (Long) in Donalsonville, Georgia on October 16,1968. Thereafter, he established a home for Velma Brunson (Long) and these three children, Larry Dean Brinson (Long), Linda Faye Brinson (Long) and Ronnie Arthur Borders (Long), and they all lived together until his death on November 19, 1973.
5. That on February 22,1969, J. D. Long signed an application to Mutual of Omaha Insurance Company for a Family Hospitalization Policy in which he acknowledged Larry Dean Long, Linda Faye Long and Ronnie A. Long as his children. That he signed the application in the presence of a competent witness and that the said application complies with F.S.A. 731.29.
6. That Velma Brunson (Long) was previously married to one Manuel Brunson on November 12, 1945. That sometime during the year 1946, Manuel Brunson left Velma Brunson (Long) and moved to Dade County, Florida. Thereafter, Velma Brunson (Long) did not see or hear from Manuel Brunson for a period of 28 years. That during this 28 year period of time, Manuel Brunson entered into a ceremonial marriage with Mozeana Bryant with whom he lived until her death, and he thereafter entered into a ceremonial marriage with Frances Butler. That neither Manuel Brunson nor Velma Brunson (Long) ever obtained a divorce from each other.
7. That the children known as Larry Dean Brinson (Long), Linda Faye Brinson (Long), and Ronnie Arthur Borders (Long) are the illegitimate children of J. D. Long, deceased, who acknowledged by his application to Mutual of Omaha Insurance Company for a Family Hospitalization Policy of Insurance, in the presence of a competent witness, that he is the father of Larry Dean Brinson (Long), Linda Faye Brinson (Long), and Ronnie Arthur Borders (Long); that the said Larry Dean Brinson (Long), Linda Faye Brinson (Long) and Ronnie Arthur Borders (Long) are beneficiaries of the Estate of J. D. Long and are entitled to participate and share in his estate in the same manner as if they were born in lawful wedlock.”

Appellants contend that the court erred in allowing appellees’ mother to testify that the children were illegitimate notwithstanding the undisputed evidence that they were born in lawful wedlock (during the existence of the marriage between Velma and Brunson). While the rule of law in Florida in the past has not allowed a married mother to give testimony that her children were illegitimate, the Supreme Court in its recent opinion in Gammon v. Cobb, 335 So.2d 261 (Fla.1976), has freed a married woman to give such testimony. While that case dealt with a bastardy statute, § 742.011, Florida Statutes (1973), and a married woman’s right to bring an action for support against the alleged father of her child, it would be incongruous to say that she can bring a support action and testify that her children are illegitimate but that she cannot so testify in a suit brought by the children to establish their right to inherit from their real father. Although the Supreme Court’s opinion in Gammon was handed down after the entry of the order here appealed, we construe the law as it exists at the time of the appeal. Lee v. Louisville & Nashville Railroad Company, 308 So.2d 157 (Fla. 1 DCA 1975); Phillips v. Phillips, 287 So.2d 149 (Fla. 1 DCA 1973). Appellants contend that Gammon should not be applied retrospectively and thereby destroy property rights of appellants acquired at the death of their father. Here, however, if appellees are illegitimate children of Long, their rights as well as those of Long’s children born in wedlock vested upon Long’s death. Thus, the application of the Supreme Court’s decision in Gammon to the case sub judice does not impair vested rights. It simply removes the previous legal impediment which prevented a mother of children born in wedlock from testifying that her children are illegitimate. A decision of a court of last resort overruling a former decision is ordinarily retrospective ás well as prospective in its operation unless specifically declared by the opinion to have a prospective effect only. Florida Forest & Park Service v. Strickland, 154 Fla. 472, 18 So.2d 251 (1944).

Appellants’ only other contention on this appeal is that “the court erred in finding that appellees are the illegitimate children of decedent based upon sexual intercourse and acknowledgment of paternity by decedent in signing the insurance application in the presence of competent witness, notwithstanding the court’s finding that at the time of their respective births their mother was the lawful spouse of Manuel Brunson.” § 731.29, Florida Statutes (1973), provides in part as follows:

“(1) Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. . . . ”

Appellants contend the foregoing statute is not applicable where the acknowledged children were legitimate (they having been born during the existence of the marriage between their mother and a man other than the alleged father). The fallacy of this contention is the assumption that the children are legitimate. Although there is an extremely strong presumption that children born in wedlock are legitimate, such presumption is rebuttable, and we can see no impediment to the application of the above quoted statute as an element of proof in an action brought by children to establish their claim that they are illegitimate children of a decedent.

Finding no error, the order is affirmed.

RAWLS, Acting C. J., and SMITH, J., concur.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    Elanor Burbank McBRIDE, Appellant, v. STATE of Florida, Appellee.
    No. Z-478.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1976.
    Robert G. Kerrigan of Kerrigan & Estess, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Elanor Burbank McBride was found guilty by jury of robbery, and she appeals from the judgment and sentence. On the evening of November 8, 1974, she was riding on the passenger side of the front seat of an automobile driven by her husband, Robert, when he parked it on a street in a wooded area and got out leaving the engine running. She testified that he told her he was going into the woods to relieve himself. He went through the woods to a 7-11 Convenience Store located approximately 150 yards from his automobile and out of sight of the automobile. He robbed the store and made a speedy exit. A sheriff’s deputy outside the store saw what was happening and began shooting at Robert and he ran into the woods. Following him into the woods, the deputy came upon the vehicle and found Elanor lying with her head on the front seat. Deputies shot the rear tire of the automobile, Elanor got out, and according to the testimony of the deputies, she hurled a series of obscenities at them.

Elanor contends that the verdict was not supported by the evidence, that the trial court should have granted her motion for judgment of acquittal. We agree. There is no evidence that Elanor aided and abetted her husband in his perpetration of the robbery. The automobile was too far from the convenience store for her to have been acting as a lookout. From the evidence presented, it is sheer speculation to say that she intended to assist him in his getaway by driving the car. Such a conclusion would rest only upon supposition unsupported by evidence. Compare Taylor v. State, 330 So.2d 91 (Fla.1 DCA 1976); Lockett v. State, 262 So.2d 253 (Fla.4 DCA 1972); Hutchins v. State, 311 So.2d 198 (Fla.3 DCA 1975). There is not circumstantial evidence of such a conclusive nature and tendency as to show that Elanor was guilty of aiding and abetting her husband in the commission of this crime. The evidence presented is not inconsistent with innocence. We, therefore, reverse.

We consider it is necessary that we also comment on the contention of appellant that she was denied a fair trial because of prosecutorial misconduct. The prosecutor elicited testimony as to obscenities which deputies stated were uttered by appellant when she exited the car. One of these obscenities testified to by a deputy was an alleged obscene slur of the deputy’s wife to the effect that she was having sexual relations with “niggers.” Such alleged statement had no relevance to the case being tried but was undoubtedly offensive to two members of the jury who were of the black race. The effect of this remark attributed to appellant was to prejudice her in the eyes of the jury — particularly the two black members. Appellant moved for a mistrial which the judge denied stating:

“Ladies and gentlemen of the jury, this has no relevancy ... As far as the testimony is concerned, this is a fair statement by the witness, as you will not consider this statement by the witness.” (Underlining added.)

Later, on his “Order on Petition for Rehearing Denying Motion for New Trial”, the trial judge indicated that he thought the transcript was in error, that he believed he used the word “bare” rather than the word “fair” and the word “and” rather than the word “as”, both of which we have underlined in the above quotation. In either event, it is not likely that the instruction removed the prejudice which had been injected into the trial.

In addition, the first question asked appellant on cross-examination by the prosecutor was the following:

“Mrs. McBride, this isn’t the first time you have driven a getaway car, is it?”

Appellant’s counsel objected to the question and moved for a mistrial. The trial court denied the motion for mistrial but sustained the objection and instructed the jury, “You will not consider the question ladies and gentlemen.” The prosecutor certainly should have known that this was a highly improper question. It left in the jury’s mind the innuendo that appellant had been guilty previously of aiding and abetting robberies. The prosecutor should know that the only appropriate initial question he could ask appellant was whether or not she had ever been convicted of a crime without mentioning a particular crime. The trial judge’s failure to grant the motion for mistrial due to prejudice injected into the trial by the prosecutor was an abuse of discretion.

Appellant also contends that the prosecutor made improper and prejudicial statements in his closing argument, but since no objection was made by the appellant at the time we will not deal with it here. Thomas v. State, 326 So.2d 413 (Fla.1976).

Reversed and remanded with directions that appellant be discharged.

RAWLS, Acting C. J., and WARREN, LAMAR, Associate Judge, concur.


author: HOBSON, Judge.

text:
    H. S. HAMILTON, Appellant, v. TITLE INSURANCE AGENCY OF TAMPA, INC., Appellee. TITLE INSURANCE AGENCY OF TAMPA, INC., Appellant, v. H. S. HAMILTON, Appellee.
    Nos. 75-765, 75-803.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1976.

      Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellant-ap-pellee H. S. Hamilton.
    John W. Frazier of Peavyhouse, Giglio, Grant, Clark & Charlton, Tampa, for appellant-appellee Title Ins. Agency.
   HOBSON, Judge.

These are consolidated appeals from a final judgment ordering the defendant, Title Insurance, to return $12,500 of a $25,000 earnest money deposit, paid by the plaintiff, Hamilton, pursuant to a real estate contract, and allowing Title Insurance to keep the remaining $12,500. The trial court held both parties at fault for the failure of the contract. We reverse.

On September 10, 1973, Hamilton contracted with Title Insurance to purchase certain real estate in Temple Terrace, Florida for $500,000. The contract reveals this land was to be utilized to build some 295 dwelling units. The contract further provided for the plaintiff to pay a $25,000 earnest money deposit, to be made at execution, and another payment in like amount was to be made within 90 days. Section seven of the contract specifically made the closing of this sale contingent upon the purchaser/plaintiff’s ability to secure building permits for the units. Failure to obtain such permits required the seller/defendant to return both deposits. In addition to the contingency of obtaining building permits, section seven further provided “[T]hat this contract is contingent upon the fact that there shall be water and sewer to the property line at no cost to the Purchaser.”

In late September of 1973, the plaintiff hired a civil engineering firm to prepare plans and specifications for the development. This engineering firm was to prepare preliminary plans for water and sewage facilities and to make application for the necessary approvals to state and local health departments, pollution control units and the City of Tampa. In November of 1973 the plaintiff was advised that a sewer and water moratorium had just gone into effect. As a result of this moratorium, and following the engineering firm’s application to water and sewage authorities, the plaintiff contacted the defendant, informing the latter of the problem and expressing that he was not in a position to pay the second earnest money installment of $25,000.

On December 17,1973, the parties negotiated an addendum to the original contract which provided for payment of the second $25,000 installment on that date with refund of the same should the plaintiff fail to obtain the building permits by January 3, 1974. The plaintiff failed to obtain the necessary permits by the agreed upon date in the addendum. Even after this date the parties met and negotiated in an attempt to complete the purchase agreement. The moratorium having blocked successful acquisition of the building permits, the plaintiff demanded a return of the deposit. Upon refusal by the defendant this suit was instituted.

It is clear from the language of the contract (“[I]n the event such building permits are not secured . . . the two (2) earnest money deposits . . . each shall be returned . . . ”), as modified by the addendum (“In the event that the purchaser is unable to obtain the said permits . the seller agrees to refund the . deposit . . .), that the entire contract’s performance was dependent and conditioned upon the plaintiffs procurement of these permits.

Indeed the express condition precedent was contractually tempered with a provision for insuring the exercise of reasonable efforts and diligence by the plaintiff in seeking those permits. The issue for determination then is whether the plaintiff exercised such effort and diligence in attempting to secure these permits sufficient to justify the return of the $25,000 deposit specified in the addendum to the contract.

The parties have correctly asserted that one who prevents or makes impossible the performance or happening of a condition precedent, upon which his liability by the terms of a contract is made to depend, cannot avail himself of its nonperformance. Walker v. Chancey, 96 Fla. 82, 117 So. 705 (1928); Hart v. Pierce, 98 Fla. 1087, 125 So. 243 (1929). Such a situation is not presented here. In fact, the plaintiff, Hamilton, was expressly bound to use reasonable efforts and diligence in seeking these permits. Cf. Chancey, supra (recognizing implied obligation to use reasonable diligence). Here the record clearly reveals extensive and concerted efforts by Hamilton to obtain clearance for the building permits from the city. The actions taken by Hamilton immediately following execution of the original agreement, and up to and after the signing of the addendum, demonstrate a sincere desire to complete the contract as agreed upon. This conclusion is further evidenced by Hamilton’s repeated attempts, after expiration of agreed upon date, to go forward with the contract by attempting to secure clearances with state and county health and pollution authorities.

The general rule, recited in 17 Am. Jur.2d, Contracts § 361, provides:

“Where parties capable of contracting deliberately enter into a written contract by which there is created a condition precedent to a right of action, such condition must be performed or its requirements waived or excused.”

Similarly, Florida law requires that performance of conditions precedent, or a valid excuse for nonperformance, be made to appear. Ballas v. Lake Weir Light & Water Co., 100 Fla. 913, 130 So. 421 (1930); Maryland Casualty Company v. Hallatt, 295 F.2d 64 (5th Cir. 1961).

Although neither party has argued that the doctrine of impossibility of performance is applicable to the instant case, and while we agree with that premise, the moratorium passed subsequent to execution of the original contract, and continuing up to and past the allotted times for performance of the condition precedent, was sufficient to render Hamilton’s nonperformance excused. This conclusion is strengthened by the language in the original contract, “[I]n the event such building permits are not secured . . . ” and the addendum, “In the event that the purchaser is unable to obtain the said permits . . . .” Both of these contract provisions clearly contemplate that the defendant assumed the risk of subsequent governmental interference.

Furthermore, no evidence suggests that the parties were informed of this moratorium prior to or at the time of contracting. Since neither party can be held to have foreseen this subsequent interference, then no reason exists for shifting the burden of this risk as allotted by the parties in their contract and the addendum.

We recognize that in cases tried without a jury a lower court’s findings are entitled to the weight of a jury verdict and must not be disturbed unless there is a total lack of substantial evidence to support the trial judge’s findings. Richards v. Dodge, 150 So.2d 477 (Fla.2d DCA 1963). However, misinterpretation of the legal effect of the facts so found can result in reversible error. Richards, supra. Here there was no substantial evidence to support the lower court’s judgment that both parties were equally at fault. Such a conclusion was clearly error where the record plainly demonstrates that nonperformance of the condition precedent to the contract was not attributable to either party. Furthermore, after the excuse for nonperformance developed, the plaintiff continued to seek governmental permission so that the contract could be completed. We think the lack of fault, as to the nonperformance of the condition, coupled with the continued attempts by Hamilton to meet contract terms, constitutes diligent and reasonable efforts to secure the building permits.

Accordingly, the judgment below is reversed and the trial judge is directed to order return of the remainder of the earnest money deposit ($12,500) to the plaintiff.

McNULTY, C. J., and SCHEB, J., concur.

      .Section 7.A. of the original contract made it mandatory on the plaintiff that he proceed in a timely manner to acquire the permits. That section provides in part,
      “. . . It is further agreed and understood that the Purchaser shall diligently, upon execution of this contract, make every reasonable effort to secure the above mentioned building permits, and to close this transaction as quickly as possible after obtaining the same.”
      It is clear that this proviso, attached to the contingency of obtaining the permits initially, is bargained-for protection inuring to the benefit of the defendant since it requires a duty on the plaintiff to use best efforts.

      . The defendant had investigated and determined that water and sewer were available for the property.

      . The addendum provides,
      . “The Purchaser agrees to make application for building permits within 3 days from date of this Addendum. It is further agreed that the purchaser will request said permits to be issued by the City of Temple Terrace on or before January 3, 1974. In the event that the purchaser is unable to obtain the said permits by January 3, 1974, the seller agrees to refund the $25,000.00 deposit on that date. In the event that the permits are issued subject to any contingencies that interfere with completion of construction, the seller agrees to clear said contingencies before the closing date of April 8, 1974. The buyer agrees to cooperate by proper filing of any governmental requests in conjunction with efforts of seller to eliminate any such contingencies, at no cost to buyer. In the event that the seller can not clear these contingencies, then the seller agrees to return the $25,000.00 deposit and the contract would be considered null and void.
      “In the event any such contingencies are complied with, then the purchaser agrees to close on or before April 8, 1974 and in the event he fails to do so the $25,000.00 will be in default and considered to be total liquidated damages.
      “This contract is further amended to extend the closing date from March 8, 1974 to April 8, 1974. The Purchaser agrees to pay the Seller interest at the rate of 4% over prime interest rate as outlined in Paragraph 3d on the total purchase price of Five Hundred Thousand and no/100 Dollars ($500,-000.00) as consideration for this extension.”

      . It is stated in 6 Corbin on Contracts, § 1349 (1962) that a valid moratorium by legislative or administrative act, is not a suspension of duty because of impossibility. See also 17 Am.Jur. Contracts § 419 (1964).


author: PER CURIAM.

text:
    John Perry CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 76-95.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1976.

      Jack 0. Johnson, Public Defender, and J. Peyton Quarles, Asst. Public Defender, Bar-tow, for appellant, and John Perry Clark, in pro. per.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The sole point raised on appeal has been considered and determined to be without merit, and the judgment is affirmed. We remand to the trial court however for correction of the sentence. The three-year sentence entered upon conviction of appellant for two separate crimes, i. e., breaking and entering with intent to commit grand larceny and grand larceny, must be apportioned between the charges. Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975), see also Darden v. State, 330 So.2d 750 (Fla.2d DCA 1976).

McNULTY, C. J., and BOARDMAN and SCHEB, JJ., concur.


text:
    Thomas L. BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-351.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1976.
    Jack O. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We set aside herein an order revoking appellant’s probation imposed upon a conviction of breaking and entering with intent to commit petit larceny.

Pursuant to a' plea bargain appellant pleaded guilty to the aforesaid charge and was given three years probation, a condition of which was that he served the first six months in the county stockade of Polk County. Upon his release from this six-month imprisonment he failed to report to his probation officer, as instructed, and he was subsequently arrested on an affidavit and warrant issued therefor. While under arrest pursuant to this warrant a new affidavit of violation was filed charging him with being “arrested by the Lakeland Police Department and charged with burglary” in violation of condition (4) of the probation order relating to “living honorably.”

At the revocation hearing the sole witness against appellant was his supervisor. He testified about appellant’s failure to report upon his release from the first six months of imprisonment as aforesaid, and then testified that he was advised (by an unnamed adviser) that appellant had been subsequently arrested by the Lakeland Police and charged with burglary as alleged in the second affidavit of violation. No other evidence of such an arrest exists in the record and there is virtually no testimony or other evidence as to what, if anything, resulted from such an arrest even assuming there was one. While appellant was present he did not testify with respect to such arrest nor was he asked about it by anyone. At the conclusion of the hearing the court immediately revoked appellant’s probation, expressly finding a violation of condition (4) thereof in that he “was arrested by the Lakeland Police Department and charged with burglary.” The court made no findings with respect to the charge of failure to report.

While it has been held, as the state submits, that because of the relative informality of revocation of probation proceedings the hearsay rule will be relaxed, it appears well settled nevertheless that revocation of probation cannot be based solely on hearsay. White v. State, 301 So.2d 464 (Fla.4th DCA 1974); Hampton v. State, 276 So.2d 497 (Fla.3d DCA 1973); Franklin v. State, 226 So.2d 461 (Fla.2d DCA 1969); McNeely v. State, 186 So.2d 520 (Fla.2d DCA 1966). Here, the order of revocation was predicated on the burglary arrest, the only evidence of which was the hearsay statement of the probation supervisor. Moreover, even if appellant were arrested and charged with burglary such fact is of itself no evidence of his guilt of burglary or of any other dishonorable act.

Accordingly, the evidence was insufficient to support an order of revocation of probation predicated on a Lakeland burglary arrest; and, in any case, the order relating thereto was premature as not abiding the outcome thereof, again assuming there was one, or without there having been otherwise sufficiently established that appellant was indeed guilty of some dishonorable conduct related to a burglary.

The order appealed from, therefore, should be, and it is hereby, reversed.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.

      . While § 949.10, Fla.Stat., provides that a subsequent arrest on a felony charge shall be pri-ma facie evidence of the violation of the terms and conditions of probation, the purpose of this statute is only to authorize temporary revocation and retention in custody pending a hearing. Crum v. State, 286 So.2d 268 (Fla.4th DCA 1973).


author: SANDERS, Chief Justice. MARCUS, Justice MARCUS, Justice. TATE, Justice

text:
    Virgil T. JACKSON, Jr., Testamentary Executor of the Succession of Mrs. Edith Forbes Jackson v. Leo G. D’AUBIN et al.
    No. 56909.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    On Rehearing Oct. 6, 1976.

      C. Alvin Tyler & Associates, Baton Rouge, for defendant-respondent.
    Ashton L. Stewart, Laycock, Stewart & Preis, Baton Rouge, for plaintiff-applicant.
   SANDERS, Chief Justice.

This proceeding commenced when the testamentary executor of the Succession of Mrs. Edith Forbes Jackson sought a judicial partition by licitation of certain immovable property located in East Baton Rouge Parish, specifically Lots 3 and 4 of Square 11 of the Devall Town Subdivision. The estate of Mrs. Jackson claimed to be the owner of an undivided one-half interest in the property and named the other claimants as defendants in the partition proceeding.

After a hearing, the district court ordered the partition by licitation of the property and appointed a Notary Public to effect the partition. In his proces verbal dated February 18, 1974, the notary reported that the property was sold at public auction on February 6, 1974, for the price of $157,000.00 cash. After deducting the expenses of the sale, the proceeds remaining for distribution were deposited in the registry of the court because the notary’s report also showed that certain claims to the deposit proceeds required a determination by the court.

The pertinent facts as found by the Court of Appeal are virtually undisputed:

“. . . Virgil T. Jackson, Sr. died in Jefferson Parish, Louisiana, where he was domiciled, on November 10, 1959. His last will and testament, dated June 26, 1958, in which the testator confirmed the usufruct of the community property to his widow, Mrs. Edith Forbes Jackson, and bequeathed the naked ownership of said property to a trustee in spendthrift trust[s] for his four children as beneficiaries, was probated in the 24th Judicial District Court for the Parish of Jefferson on November 18, 1959. In the judgment of possession signed on March 10, 1960, the trust[s] . . [were] not mentioned and the children of the deceased were recognized as owners in indivisión of the testator’s property, subject to the usufruct of their mother. After the death of the testator’s widow, Mrs. Edith Forbes Jackson, on October 6, 1971, an amended judgment was obtained in the testator’s succession proceeding on March 1, 1973, recognizing the spendthrift trust[s] and placing dative co-trustees in possession of the trust property.
“Meanwhile, the United States, in order to collect delinquent income taxes in the amount of $510.00 owed by William P. Jackson, II, one of the testator’s children, . . seized the tax debtor’s interest and sold the same to Leo G. D’Aubin at a public sale on August 3, 1965'. Then, on August 16, 1966, the United States executed a quit-claim deed in favor of D’Aubin.”

Thus, two parties claimed the one-eighth interest of William P. Jackson, II, in the property, namely, the trustees of the spendthrift trusts and the purchaser at the tax sale. The district court dismissed the claim of the tax purchaser, recognizing the claim of the trustees.

The Court of Appeal reversed, upholding the claim of the tax purchaser. La.App., 316 So.2d 478 (1975). On application of the trustees, we granted certiorari to review the judgment. La., 320 So.2d 910 (1975). After consideration, we affirm the judgment of the Court of Appeal.

In determining whether and to what extent a taxpayer has property rights to which a federal tax lien can attach, both federal and state courts must look to state law. Aquilino v. U. £>., 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960). The applicable federal statute, 26 U.S.C. § 6321, providing that the United States is entitled to a lien upon all property rights belonging to a person who has failed to pay any tax, creates no property rights but merely attaches federally defined consequences to rights created under state law. U. S. v. Bess, 357 U.S. 51, 78 S.Ct. 1054, 2 L.Ed.2d 1135 (1958). The quitclaim deed executed by the United States conveyed to D’Aubin “all the right, title, and interest of said taxpayers” in and to the described real estate. We are required, therefore, to make a determination of what rights, if any, the United States actually conveyed to D’Aubin under Louisiana law.

The trustees contend that the ownership of the property vested in the testamentary trustee immediately upon the settlor’s death, and the Court of Appeal failed to recognize that the trustee, rather than the beneficiary, owned the property at the time of the seizure and sale for the delinquent taxes of the beneficiary.

We agree that under Article 940 of the Louisiana Civil Code and LSA-R.S. 9:1821, the trust was created at the moment of the settlor’s death. At that time, title to the property making up the corpus of the trust vested in the trustee named in the will. However, the trust instrument was not recorded in East Baton Rouge Parish, where the property in question was located. This omission to record brings into operation another provision of the Trust Code, LSA-R.S. 9:2092, which, in our opinion, is controlling. That section provides:

“If at any time the trust property of either an inter vivos trust or a testamentary trust includes immovables or other property the title to which must be recorded in order to affect third parties, a trustee shall file the trust instrument for record in each parish in which the property is located.”

We hold that under LSA-R.S. 9:2092, an unrecorded trust instrument has no effect insofar as immovables are concerned, except between the immediate parties. It is null and void as to all others.

Article 2266 of the Louisiana Civil Code is the basis of the general Public Records Doctrine. This Court has recognized an exception to the general doctrine in holding that the absence of recordation is not fatal to the rights of forced heirs and others whose rights vest by operation of law. See, e. g., Long v. Chailan, 187 La. 507, 175 So. 42 (1937); Knighten v. Ruffin, La.App., 255 So.2d 388 (1971).

This exception, in our opinion, is inapplicable to the trustee of a testamentary trust. A trust is a creature of statute. Section 2092 of the Trust Code makes it mandatory for the trustee to record the trust instrument in order to affect third parties. To give an unrecorded trust instrument greater effect than the statute provides would, in our opinion, defeat the purpose of the recor-dation requirement.

Since the recording requirement applies, actual knowledge of the trust on the part of the tax purchaser does not alter the result. See American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); Ewald v. Hodges, 239 La. 883, 120 So.2d 465 (1960); Blevins v. Manufacturers Record Publishing Company, 235 La. 708, 105 So.2d 392 (1958); McDuffie v. Walker, 125 La. 152, 51 So. 100 (1910).

Our holding in this case should not be construed to mean that reliance by a purchaser upon a judgment of possession is sufficient in all cases, or even in this case. We hold narrowly that when a succession includes a testamentary trust, the trust instrument must be recorded in the parish where the immovable property is located in order to affect third parties.

Having concluded that in effect no trust existed as to the purchaser at the tax sale, we need not reach the other issues raised.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

DIXON, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I agree with the majority that title to the immovable property vested immediately in the trustee upon the death of Virgil T. Jackson, despite the fact that the judgment of possession rendered in his succession proceeding failed to mention the trust he had established in her will. La.Civil Code art. 940 (1870); La.R.S. 9:1821. I disagree with the majority insofar as it holds that the trust has no efficacy vis-a-vis the tax purchaser because the trust instrument was not recorded in accordance with La.R.S. 9:2092. In my view, the Public Records Doctrine is inapplicable in this case. A judgment of possession that places the wrong person in possession, like the one rendered herein, even if recorded does not defeat the rights of the true owner of the property, in this case the trustee. Although a ten-year prescription may bar the trustee’s action against a third person who purchases the property, La.R.S. 9:5682, as amended, La.Acts 1975, No. 642, § 1, the facts show that this prescription had not yet accrued.

Provided that proper notice was given (an issue the majority does not reach), the United States was entitled to seize all the right, title, and interest of William P. Jackson in the immovable property. The tax purchaser to whom it executed a quitclaim deed acquired no greater interest in the property than that owned by Jackson. In such a case, the tax purchaser would acquire the interest of Jackson subject to the trust.

Accordingly, I respectfully dissent.

ON REHEARING

MARCUS, Justice.

We granted a rehearing in this case involving a dispute over one-eighth of the proceeds from the sale of certain immovable property located in East Baton Rouge Parish between the trustees of a spendthrift trust and the tax purchaser of a beneficiary’s interest in the property. The district court dismissed the claim of the tax purchaser and recognized that of the trustees. The court of appeal reversed, upholding the tax purchaser’s claim. 316 So.2d 478 (La.App. 1st Cir. 1975). We granted certiorari upon the application of the trustees, 320 So.2d 910 (La.1975), and, on original hearing, affirmed the judgment of the court of appeal.

The facts in this case were set forth in our original opinion and will be repeated herein insofar as they are pertinent to our discussion.

Virgil T. Jackson, Sr. died testate on November 10, 1959, survived by his wife, Mrs. Edith Forbes Jackson, and four children, Mrs. Mildred Jackson Koestering, Mrs. Dorothy Jackson Stevens, Virgil T. Jackson, Jr., and William P. Jackson II. In his statutory will, he bequeathed various particular legacies to his wife and his two daughters and left to each of his four children an undivided one-fourth interest in his residuary estate, consisting entirely of community property, subject to a usufruct in favor of his wife and further subject to a separate spendthrift trust established in favor of each child for the duration of his or her life. The settlor directed that the income from each trust be payable upon accrual to the usufructuary and, after her death, to the beneficiaries. He appointed his wife the trustee of each trust and the National Bank of Commerce in New Orleans the successor trustee. The trust instrument was drawn in great detail, as is evident from the fact that the portion establishing the trust accounts for more than six pages of the seven-page testament.

After the will was duly probated on November 18, 1959 in Jefferson Parish, the settlor’s domicile at the time of his death, the settlor’s widow and all of his children except William P. Jackson II petitioned the court to be sent into possession of his estate. Upon this petition, the district court on March 10, 1960 signed an ex parte judgment of possession omitting all reference to the testamentary trust and sending Mrs. Edith Forbes Jackson into possession of the usufruct of the settlor’s residuary estate (which included a one-half interest in the subject immovable property) and recognizing and sending into possession his four children as naked owners thereof in indivi-sión. The judgment of possession was registered in the conveyance records for the Parish of East Baton Rouge on March 11, 1960.

Approximately five years afterwards, the United States seized the interest of William P. Jackson II in the subject immovable property for the satisfaction of delinquent income taxes and sold all of his “right, title, and interest” in the property to Leo G. D’Aubin at a public sale on August 3, 1965. William P. Jackson II was served with notice of the seizure and sale. Then, on August 16, 1966, the United States executed a quitclaim deed conveying William P. Jackson II’s interest to D’Aubin.

Mrs. Edith Forbes Jackson died on October 6,1971. On March 1, 1973, an amended judgment of possession was obtained in the succession of Virgil T. Jackson, Sr. that recognized the spendthrift trusts he had established in his will. Because of the refusal of the National Bank of Commerce in New Orleans to serve as trustee, Virgil T. Jackson, Jr. and Emile Rainold III were named dative co-trustees of the beneficiaries’ interests and were placed in possession of the trust property. On October 13,1972, Virgil T. Jackson, Jr. was also appointed testamentary executor of his mother’s succession.

The instant proceeding commenced when Virgil T. Jackson, Jr., as testamentary executor of the succession of Mrs. Edith Forbes Jackson, filed suit, on May 4, 1973, for a partition by licitation of the subject immovable property in which the decedent owned an undivided one-half interest. Among those made defendants were the dative co-trustees, the beneficiaries, and Leo G. D’Aubin. The district court, after finding that the property could not be conveniently divided in kind, ordered it partitioned by licitation. On February 6,1974, the property was sold for $157,000.00 in cash at public sale. Defendant D’Aubin claimed one-eighth of the proceeds by virtue of his purchase of William P. Jackson II’s interest in the property. The trustees resisted his claim to any portion of the proceeds on the ground that William P. Jackson II owned no interest in the property because Virgil T. Jackson, Sr. had bequeathed it in trust, and on the ground that the United States had not served the trustees with notice of its seizure of Jackson’s interest as required by 26 U.S.C. § 6335.

I.

Title to the property of a testamentary trust vests in the trustee by operation of law upon the settlor’s death, and a trustee’s acceptance of the trust is retroactive to that date. La.R.S. 9:1781; La.R.S. 9:1821; La.R.S. 9:1823; La.Civil Code arts. 940, 1626 (1870). Even though the trustees in this case did not accept the trust until more than thirteen years after the settlor’s death, their failure to accept the trust within a reasonable time after its creation did not cause it to fail. La.R.S. 9:1824, Official Revision Comment (c). Nor did the ex parte judgment of possession omitting mention of the trust and sending the settlor’s children into possession of the naked ownership of the residuary estate deprive the trustee of title to the trust property, since a judgment of possession is only prima facie evidence of the relationship of the deceased to the heirs or legatees recognized therein. La.Code Civ.P. art. 3062 (1960); Miller, Judgments of Possession, 35 Tul.L.Rev. 567 (1961).

On original hearing, we held that under La.R.S. 9:2092 the trust did not affect D’Aubin, a third party, because the trust instrument was not recorded in the Parish of East Baton Rouge where the subject immovable property is located. It has been consistently held in the jurisprudence, however, that the law of registry is inapplicable where the ownership of, or claim affecting, immovable property (such as the interest in the subject immovable property claimed by the trustees) has been acquired by inheritance and title has become vested by operation of law. Bishop v. Copeland, 222 La. 284, 62 So.2d 486 (1953); Dugas v. Powell, 207 La. 316, 21 So.2d 366 (1945); Long v. Chailan, 187 La. 507, 175 So. 42 (1937); Knighten v. Ruffin, 255 So.2d 388 (La.App. 1st Cir. 1971), cert. denied, 260 La. 399, 256 So.2d 288 (1972); Succession of Rosinski, 158 So.2d 467 (La.App. 3d Cir. 1963); Vaughan v. Housing Authority of New Orleans, 80 So.2d 561 (La.App. Orl. 1955). After reconsideration, we do not believe that La.R.S. 9:2092 purports to create an exception to that rule.

II.

Nevertheless, we are still of the opinion that the dispute between the trustees and the tax purchaser should be resolved in the tax purchaser’s favor, although for reasons different from those assigned on original hearing.

While, as we stated previously, a judgment of possession is only prima facie evidence of the relationship of the deceased to the recognized heirs or legatees, the legislature has endeavored to give a measure of protection to third persons who acquire property from or through a recognized (but not necessarily a true) heir or legatee. La. R.S. 9:5682, enacted in 1960, provided, prior to its amendment in 1975, as follows:

An action by a person who is an heir or legatee of a deceased person, and who has not been recognized as such in the judgment of possession rendered in the succession of the deceased by a court of competent jurisdiction, to assert any right, title, or interest in any of the property formerly owned by the deceased against a third person who has acquired this property from or through a person recognized as an heir or legatee of the deceased in this judgment of possession, is prescribed in ten years if the third person, or his ancestors in title, singly or collectively, have been in continuous, uninterrupted, peaceable, public, and unequivocal possession of the property for such period after the registry of the judgment of possession in the conveyance records of the parish where the property is situated.
As used herein, ‘third person’ means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession.

As we stated in All-State Credit Plan Natchitoches, Inc. v. Ratliff, 279 So.2d 660 (La.1973), the legislature, in enacting this statute, was attempting to balance the opposing interests involved: protection of inheritance rights, especially against possible fraud or abuse of succession procedure; and stabilization of titles, through affording greater prescriptive benefits where third persons rely upon succession judgments. In Trahan v. Broussard, 251 La. 714, 206 So.2d 82 (1968), we held that the prescription established by La.R.S. 9:5682 is acquisitive. In Ratliff, supra, we held that the purpose of the statute was to make the judgment of possession an act translative of title, i. e., just title sufficient to commence the running of the ten-year prescriptive period, and to make ordinary ten-year prescription principles applicable where third persons were involved. We further held in Ratliff that good faith on the part of the recognized heir or legatee was required, since good faith as a general rule is necessary to acquire the ownership of immovable property by the prescription of ten years. La.Civil Code arts. 3473-75 (1870). In 1975, the legislature amended La.R.S. 9:5682, making the prescription liberative, rather than acquisitive, and providing that the good faith or bad faith on the part of the person recognized as heir or legatee in the judgment of possession is immaterial to the running of prescription. This proceeding corn-menced, however, before the statute was amended, and therefore is governed by its former provisions.

In our opinion, the tax purchaser has acquired a one-eighth interest in the subject immovable property based on the prescription established by La.R.S. 9:5682.

The tax purchaser acquired his interest in the subject immovable property through William P. Jackson II, a person recognized as an heir or legatee in the judgment of possession. Hence, the tax purchaser is a “third person” under La.R.S. 9:5682. The trustee (now trustees), the unrecognized legatee, failed to assert any right, title, or interest in the property until the amended judgment of possession recognizing the trust was obtained in the succession of Virgil T. Jackson, Sr. on March 1, 1973, more than ten years after registry of the original judgment of possession on March 11, 1960.

The requirement of good faith on the part of the recognized heir or legatee has also been satisfied, for the trustees have failed to prove that William P. Jackson II was in bad faith at the time the judgment of possession omitting the trust was signed in 1960. We note that William P. Jackson II, alone of all the trust beneficiaries (his brothers and sisters), did not join in the petition for possession in 1960. Nor is he shown, on the evidence before us, to have participated in any of the early probate or other proceedings in the succession of his father. Moreover, there is no evidence that William P. Jackson II engaged the attorney who drafted the petition for a judgment of possession in 1960 to represent him in his father’s succession. In fact, the signature of William P. Jackson II does not appear on any pertinent document until February 28, 1973, when he joined in the petition for an amended judgment of possession recognizing the trust.

Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor must prove it. La.Civil Code art. 3481 (1870). The trustees have presented no evidence whatsoever tending to show that William P. Jackson II was aware that his interest in the property had been left in trust. Accordingly, we conclude that they have not rebutted the presumption that William P. Jackson II was in good faith.

Finally, we find that the tax purchaser and his ancestor in title, William P. Jackson II, were collectively in continuous, uninterrupted, peaceable, public, and unequivocal possession of the property for ten years after registry of the judgment of possession on March 11, 1960, as La.R.S. 9:5682 requires. It is not disputed that the property was in the possession of Mrs. Edith Forbes Jackson, as owner of an undivided one-half interest and as usufructuary of the other half, during that period. As usufructuary and as a precarious possessor, she possessed the property for the naked owner, who can invoke the possession of the usufructuary for the purpose of completing prescription. La.Code Civ.P. arts. 3656 Comment (b), 3660 (1960); G. Baudry-Lacantinerie et A. Tissier, 28 Traité théorique et pratique de droit civil no. 345, at 181 (4 éd. La.State L. Inst. transL 1972); A. Yiannopoulos, Personal Servitudes § 49, at 185 n.207 (1968); of. La.Civil Code art. 3433 (1870); Bell v. Saunders, 139 La. 1037, 72 So. 727 (1916).

The trustees, however, contend that the usufructuary possessed the undivided one-half of the property for the trustee (i. e., for herself) rather than for the persons named in the judgment of possession as the naked owners, her children. We cannot accept this contention. La.R.S. 9:5682, both as originally enacted and even as amended in 1975, would have absolutely no effect as a prescriptive statute if the persons recognized as heirs or legatees in the judgment of possession, and those named in the judgment as their precarious possessor, e. g., a usufructuary, were held to possess the property for the unrecognized heirs or legatees. If such were the case, it would be impossible for any third person relying on the prescription established by La.R.S. 9:5682 to satisfy the statute’s requirement of possession.

III.

The second defense of the trustees against the tax purchaser’s claim, and the last issue for our consideration, concerns the adequacy of notice of the seizure and sale of William P. Jackson II’s interest in the property.

26 U.S.C. § 6335(a)-(b) provides:
§ 6335. Sale of seized property
(a) Notice of seizure. — As soon as practicable after seizure of property, notice in writing shall be given by the Secretary or his delegate to the owner of the property (or, in the case of personal property, the possessor thereof), or shall be left at his usual place of abode or business if he has such within the internal revenue district where the seizure is made. If the owner cannot be readily located, or has no dwelling or place of business within such district, the notice may be mailed to his last known address. Such notice shall specify the sum demanded and shall contain, in the case of personal property, an account of the property seized and, in the case of real property, a description with reasonable certainty of the property seized.
(b) Notice of sale. — The Secretary or his delegate shall as soon as practicable after the seizure of the property give notice to the owner, in the manner prescribed in subsection (a), and shall cause a notification to be published in some newspaper published or generally circulated within the county wherein such seizure is made, or if there be no newspaper published or generally circulated in such county, shall post such notice at the post office nearest the place where the seizure is made, and in not less than two other public places. Such notice shall specify the property to be sold, and the time, place, manner, and conditions of the sale thereof. Whenever levy is made without regard to the 10-day period provided in section 6331(a), public notice of sale of the property seized shall not be made within such 10-day period unless section 6336 (relating to sale of perishable goods) is applicable.

The trustees contend that the sale to the tax purchaser was invalid because, as its trustees, they were the “owners” of the property and therefore entitled to receive notice of its seizure and sale.

We agree with the court of appeal that the validity of the sale was not affected by the lack of notice to the trustees. The notice provisions of 26 U.S.C. § 6335 are clearly designed for the protection of the delinquent taxpayer, who in this case was William P. Jackson II. The government seized only his right, title, and interest in the subject immovable property. We think it clear that where the statute requires notice of seizure and sale to the owner of the property, it refers to the owner of the right, title, and interest in the property that is to be seized and sold for the collection of delinquent income taxes.

DECREE

For the reasons assigned, our decree on original hearing is reinstated, and the judgment of the court of appeal is affirmed.

SANDERS, C. J., and DENNIS, J., concur.

TATE, J., concurs and assigns reasons.

DIXON, J., dissents.

TATE, Justice

(concurring).

I concur in the decree, adhering to the views expressed by us in our opinion on original hearing. The trust instrument could only have such effect against third parties as authorized by the statute authorizing it. With regard to immovables, an unrecorded trust instrument cannot affect third parties. La.R.S. 9:2092.

      . Specifically, the property comprises Lots 3 and 4 of Square 11 of Devall Town, a subdivision of the City of Baton Rouge.

      . La.R.S. 9:2092 provides:
      If at any time the trust property of either an inter vivos trust or a testamentary trust includes immovables or other property the title to which must be recorded in order to affect third parties, a trustee shall file the trust instrument for record in each parish in which the property is located.

      . Article 2266 of the Civil Code, the basis of the law of registry in Louisiana, provides:
      All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.
      The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer. (Emphasis added.)

        See Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tul.L.Rev. 491, 505-06 (1965).

      .La.R.S. 9:2092 does not declare that unrecorded trust instruments do not affect third parties, but rather that the trustee has the duty to record the trust instrument in every parish in which is located immovable or other property the title to which requires recordation to affect third persons. The title to property acquired by inheritance does not require recordation to be effective against third persons. La. Civil Code art. 2266 (1870).

      . See La.Civil Code arts. 3484-85 (1870):
      Art. 3484. By the term just title, in cases of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property.
      Art. 3485. And in this case, by the phrase transfer the ownership of the property, we understand not such a title, as shall have really transferred the ownership of the property, but a title which by its nature, would have been sufficient to transfer the ownership of the property, provided it had been derived from the real owners, such as a sale, exchange, legacy or donation.
      Thus, prescription could not be acquired under a title resulting from a lease or loan, because these contracts do not transfer the ownership of the property.

      . La.R.S. 9:5682, as amended, La.Acts 1975, No. 642, § 1, provides:

        B. This Section establishes a liberative prescription, and shall be applied both retrospectively and prospectively; provided, however, that an action by any person against whom the period of liberative prescription herein provided would otherwise already have accrued except for the provisions of this Section, must be brought within one year from and after August 1, 1975.
      C. As used herein, ‘third person’ means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession.

      . The district court rejected the tax purchaser’s plea of prescription based on La.R.S. 9:5682. The cpurt of appeal did not discuss the issue.

      . Whether or not defendant, the tax purchaser, was in good faith is not relevant to our inquiry; for it is sufficient that the possession commenced in good faith, and the fact that it is afterwards held in bad faith, whether by the original possessor or his successor in title, does not affect the running of the ten-year acquisitive prescription. La.Civil Code arts. 3482, 3493 (1870); Vance v. Ellerbe, 150 La. 388, 90 So. 735 (1922); Brewster v. Hughes, 113 La. 45, 36 So. 883 (1904); Barrow v. Wilson, 38 La. Ann. 209 (1886); Devall v. Choppin, 15 La. 566 (1840); Liuzza v. Heirs of Nunzio, 241 So.2d 277 (La.App. 1st Cir. 1970). In any event, there is no evidence that the tax purchaser, who relied on the judgment of possession signed and registered in 1960, was aware, or should have been aware, that the judgment of possession omitted the testamentary trust.