text:
    No. 11,364.
    Antonio Augusti vs. Citizens Bank of Louisiana.
    sales, whether judicial, forced or voluntary, of property mortgaged to the Citizens Bank can affect its rights secured by the 24th section of its charter.
    But as to taxes, it must be presumed that the Legislature did not intend to deprive the State of any prerogative, right or property, unless in terms expressive or inference irresistible.
    The property of the mortgage stockholders was always subject to taxation, and the remedy to compel payment remains unimpaired by the charter.

      The law does not contemplate that the assessor shall test titles in order to make-assessment ol the property.
    A 'prima facie title suffered to remain unquestioned on the official records, taken in good faith as a basis for the assessment, is a compliance with the requisition of the statute regarding assessments.
    PPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Farrar, Jonas & Kruttschnitt Attorneys for Plaintiff and Appellee:
    Any person who pays the taxes levied on an assessment in a given name is estopped from afterward alleging that such assessment is invalid. Read vs. Creditors, 39 An. 125; Factors and Traders Insurance Company vs. Levi, 42 An. 435.
    Under Art. 329 of the Code of Practice replications are prohibited in Louisiana and therefore all allegations in the answer are open to every objection of law and of fact, such as nonage, coverture, fraud, prescription and the like, as if specially pleaded. If the defendant be surprised the proper remedy is a continuance or a new trial. Planters’ Bank vs. Allard, 8 New Series, 141; Hennen’s Digest, p. 1155.
    A tax deed, even though made pursuant to a sale under a void assessment, is nevertheless prima facie valid, and an assessment in the name of a purchaser under that deed, or of any one holding under him, and in whose name the property stands on the conveyance records, i¡3 a valid assessment and vests a perfect title in one purchasing under it. State ex rel. Maspereau vs. Batt, 40 An. 582; Palmer vs. Board of Assessors, 42 An. 1127; Prescott vs.. Payne, 44 An. 655, 656.
    The provision in the charter of the Citizens Bank of Louisiana, that the property mortgaged to said bank may be seized and sold at any time, in whosesoever hands or possession the same may be found, notwithstanding any alienation thereof, or change of possession by succession or descent to heirs or legatees, by last will and testament, or otherwise, in the same manner as if the same were in the possession of the original mortgagor, is nothing more than a statutory pact de non alienando, and does not affect the rights of creditors holding a privilege on the property, and especially the right of the State to recover her taxes out of the same.

      The charter of the bank does not affect the rights of the State to collect her taxes on the property mortgaged to the bank, fox* the additional reason that the sovereign is never included in general words of a statute. Endlieh on Interpretation of Statutes, Sec. 161; Sutherland on Statutory Construction, Sec. 133.

      Henry Denis Attorney for Defendant and Appellant:
    The assessment in the name of one only, of two joint proprietors, when the property is held in indivisión, and is recorded in the several names of the joint proprietors in the office of conveyances, is null and void in toto. The tax sale made under such assessment is absolutely null. Norris et al. vs. Hays et al., 44 An. 912; Kearne vs. Collins, 40 An. 209.
    When the tax sale is an absolute nullity, the adjudicates acquires xxo title and can not transfer any; and, therefore, at a subsequent tax sale, the second adjudicatee, having to trace his title through the first, acquires no right either. Gibson vs. Hitchcock et al., 37 An. 209.
    Estoppel must be specially pleaded. Heirs of Wood vs. Nicholls, 33 An. 728.
    Under the charter of the Citizens Bank of Louisiana, a tax sale of property mortgaged to the bank, and securing the bonds of the State, can not affect the mortgage, any more than any othexforced sale. The purchaser takes the property cum onere. Charter, Sec. 24; Berfcoli vs. Citizens Bank, 1 An. 120; Citizens Bank vs. Buisson, 7 Rob. 507; 17 La. 387; 11 Rob. 209; 2 An. 526, 606; 28 An. 771.
    All the provisions of the charter of the Citizens Bank enter into the contract between the State and the bondholders, as fully as if specifically stipulated in a notarial act. Louisiana vs. Pilsbury, 15 Otto, 288.
   The opinion of the court was delivered by

Breaux, J.

The record discloses that on the 16th day of July, 1836, Honoré and Alexander Coulon mortgaged the lot and improvements thereon, claimed in this suit, to the Citizens Bank to secure-the payment of stock debt of seven thousand dollars.

This mortgage was foreclosed in 1890 and the property was adjudicated to the defendant.

The plaintiff was the adjudicatee of the property at tax collector’s sales for State taxes of 1887. The assessment was made in the name of Joaquin Sambola.

The latter acquired the property by authentic deed, duly recorded, in May 1885, from J. B. Henry, Jr.

Henry became the owner at tax sale made for taxes of the year 1883 under an assessment in the name of the estate of Alexander ■Ooulon. The property was assessed for the taxes for years 1870 to 1885 in the name of the estate of Alexander Ooulon, for the years 1886, 1887 and 1888 in the name of J. J. Sambola, and for years subsequent in the name of plaintiff, Augusti.

The State taxes for the years 1871, 1872, 1874 and 1875 were paid by the defendant, the Citizens Bank.

The testimony shows that there is a large amount unpaid of bonds issued under the law of 1836, amendatory of the charter of the bank. These bonds it is urged by defendant have such a guarantee from the State that the State can not in consequence lessen the security by selling for taxes property mortgaged for their security. The plaintiff alleges that the Citizens Bank has slandered and continues to slander his title and disturb him in the enjoyment of his ownership of the property.

The prayer of his petition is for an injunction restraining the bank from interfering with the petitioner or his tenants and from asserting that it is the owner of the property, and that plaintiff be quieted in the enjoyment of his possession.

In the answer the defendant pleads a general denial and specifically sets forth that plaintiff has no title to the property; that the property was not assessed in the name of the owners in 1883.

That the tax sale of 1885 was an absolute nullity — the adjudicatee, Henry, acquired no title and could not transfer any; that in consequence the second adjudicatee having to trace his title to the first acquired no title, as the true owner had never been divested.

In the alternative, the defendant’s argument through counsel is that, if the tax sale be valid, it would not under the provisions of the charter of the Citizens Bank affect her mortgage upon the property for the reason that all mortgages executed for stock or loans may be closed at any time in whosesoever hands or possession the property mortgage may be, notwithstanding any alienation or change of possession. See Sec. 24 of Citizens Bank, Act of 1883.

The first question which presents itself for our determination is,. if the sale is not void, what effect must be given to the non-alienation clauses of the bank’s charter?

The second question is, is the tax title to the property based upon the tax sale for the taxes of 1887 a valid title?

This court has expressed its recognition of the binding force of the section of the Citizens Bank’s charter cited, and stated with some em - phasis that no sale, whether judicial, torcedor voluntary, of property mortgaged to the Citizens Bank, can in any manner affect the rights. secured to that institution by the 24th section of its charter; that the Legislature intended no exception and made none. Bertoli vs. Citizens Bank, 1 An. 120.

In the different cases to which our attention is directed the interests . were private and the suits related to the disposition of the property sought by persons seeking to realize rights which they had acquired subsequently to the bank’s mortgage.

In those cases the rights involved were passed upon as if the prop- ■ erty was in the possession of the original mortagor.

The question at issue in the case at bar is different.

The Constitution ordains that all property shall be taxed in propor- • tion to its value.

While this provision does not extend to or include public property of the general government, of the State, or any of its subordinate subdivisions, or property specially exempted, it extends to and includes all property in commerce.

The State is not the owner of the property taxed.

The property of the mortgage stockholders was always subject to taxation and the remedy to compel payment remained unimpaired by the charter.

The taxes attach primarily to the lands and remain until satisfied by payment or from the proceeds of the sale for their payment.

Nothing in the charter prevents a tax sale of the property of a mortgage shareholder.

There exists a presumption against the legislative intent to affect ■ government.

Unless sovereignty is expressly embraced by the terms of the statute, it does not come within the terms of law regulating rights among persons.

The rights of the State to collect her taxes should not be treated as relinquished or conveyed away by inference.

The liability of the original stockholder to pay his taxes does not become ineffective from the moment the bank proceeds to foreclose its mortgage.

This exceptional right, in opposition to the State, can not be created by legal construction.

“It is presumed that the Legislature does not intend to deprive the crown of any prerogative, right or property, unless it expresses its intention to do so in explicit terms or makes the inference irresistible.” Endlich on the Interpretation of Statutes, p. 223.

There is no direct expression in the statute upon the subject and there is nothing in its terms which makes the inference irresistible.

The tax sale. The validity of the tax sale involved in the case at bar, must be determined irrespective of the charter.

It is made the duty of an assessor, by statute, to examine the records of the conveyance office to ascertain what taxable property there is in his district or parish.

The record of deeds of conveyance and of mortgage are taken as the basis of the assessment.

It does not devolve upon him to test the validity of these acts in order that he may ascertain in whose name to assess the property.

If an act be not radically null upon its face, he is within the law in taking as correct a recorded deed interested parties have for years permitted to remain on the record as an adverse title, unquestioned and unassailed.

There was a notarial deed of record dating from 1885.

It devolved upon the owner annually to make a return of the property, a required formality uncomplied with.

He knew that the property had not been assessed in his name.

The notarial record in the conveyance office was a notice that title was recorded in the name of the person to whom it was assessed; the owner has no legal cause of complaint of the sale of the property for the taxes.

Two years prior to the registry of the notarial act of sale to Sam* bola, in whose name it was assessed when the last adjudication, that •of 1887, was made for taxes, the property was adjudicated to Henry, who was Sambola’s author.

The objection is directed against this tax sale, i. e. the tax sale to Henry in 1883, null, it is urged, because assessed in the name of the estate of Alex. Ooulon, it being at the time the property of the estate of HonoxA and Alexander Ooulon.

Defendant’s counsel forcibly argues in support of the proposition that the defect in the tax sale of 1885 is fundamental and not curable by monition.

Be that as it may it does not follow that the tax sale of 1888, pleaded in the case at bar, is also null.

The deed itself is prima facie evidence of a compliance with the requisition of the law.

The deed was evidence of title.

When the party claiming adversely shows that a prerequisite to the validity of the title has not been complied with, the prima facie is destroyed, the presumption defeated and the deed becomes entirely useless as a title.

The defendant, a mortgage creditor, having a direct interest, possibly more valuable than that of the owners themselves, suffered the prima facie evidence to remain unquestioned. ■

The property passed into other hands under this title.

The ministerial officers performed every duty imposed by law. The assessment was made by reference to the deed of record, and every other condition essential to the character of the deed was complied with. It therefore became conclusive evidence of title.

The tax deed generally is an original title, not derivative, and can not be defeated by a missing link in the chain of title.

Titles that are intrinsically null, if permitted to remain unquestioned, may become the basis of an assessment that will result in a valid sale.

Any other ruling upon this point would compel the assessors to investigate titles and ascertain as to their conclusive ¡validity. This was never contemplated by the law. The evidence of a prima facie title is the requirement.

Such evidence was of record when the assessment was made of the property sold at tax sale in 1888.

The judgment appealed from is therefore affirmed at appellants’ •costs.

Mr. Justice Miller recused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    NO. 11,350.
    Clarence Cochran vs. Mrs. Agnes Cochran, Widow of Frank K. Moore.
    The plaintiff claimed one-ninth in his grandfather’s succession after having settled his interest in the property of his grandmother.
    The title to the property was in the name of the grandmother, though it belonged to the community between the grandmother and grandfather. But it was inventoried as her property and in the compromise the whole of it was treated as property belonging to her succession.
    Having-compromised on the basis that the property belonged to her succession; the heir is without right to recover a second time part of the sameproperty as coming to him from his grandfather’s estate.
    The defendant had made reasonable search for the lost document.
    The foundation required had been laid. Secondary evidence to prove its contents was admissible.

      King, J. PPEAL from the Civil District Court, Parish of Orleans.

      Ous A. Breaux Attorney for Plaintiff and Appellant:
    Secondary and parol evidence should not be admitted where an original act of compromise pleaded by a party is shown to have been in his possession, and its loss or absence is not fully accounted for. Baines vs. Higgins, 2 La. 222; Lockhart vs. Jones, 9 Rob. 386; Ticknor vs. Calhoun, 29 An. 278; C. C. 2279, 2280.
    Where the contents of the original document are to be proved by parol, much stronger proof of the loss will be required. Lavergne vs. Elkins, 17 La. 220.
    Transactions regulate only the differences which appear clearly to be comprehended in them. C. C., Art. 3073; Perret vs. Hill, 1 Rob. 310; Journal du Palais, Jur. Générale, verbo Transaction, Nos. 134, 135, 138; Duranton (Ed. Bruxelles, 1841), Liv. Ill, Tit. XV, Des Transactions, No. 416; Merlin, verbo Transaction, Sec. 4, II.
    Forced heirs take by effect of law; their right of ownership can not be affected by will. C. C. 1493; 28 An. 198; 33 An. 4.

      Walter D. Denégre Curator ad hoe for Defendant and Appellee:
    The defence is payment; that Clarence Cochran has no further interest in the property, he having been settled with and paid in full, not only for his interest in his grandfather’s estate, but also for his entire interest in this specific piece of property, either as heir of his grandfather, Geo. W. Cochran, or as heir of his grandmother, Mrs. Martha A. Cochran.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sues as an heir of his grandfather to recover an interest in property in defendant’s possession.

He is one of three forced heirs of the succession.

The defendant and her sister were the other heirs.

The sister, Emma Cochran, died in 1889.

By last will and testament the defendant inherited all property left by the sister.

In 1878 plaintiff’s grandmother, authorized by her husband, his grandfather, bought a lot and improvements in New Orleans.

On the face of the papers it was the property of the community existing at the time betw'een plaintiff’s grandfather and grandmother. The former died in 1884 and the latter in 1886.

The succession of the grandfather was opened in Kentucky and his will was propounded for probate in that State. He bequeathed his property to his wife. The mother of plaintiff, he being a minor at the time, represented by her, contested the application for probate.

The opposition was withdrawn on the execution of two note's of two hundred and fifty dollars each, by the legatees under the will (plaintiff’s grandmother), in favor of plaintiff’s guardian.

There was litigation in Kentucky to recover the payment of these notes.

Payment was refused on the ground that the guardian was without authority to represent her son, and that the notes were without consideration for the reason that the grandfather had, by will, disinherited plaintiff, his grandson, and that he was absolutely without interest to recover anything.

A judgment was pronounced decreeing that plaintiff was entitled to the sums represented by these notes.

We glean from the testimony that the withdrawal of the opposition to the probate of the will and the interest claimed for the opponent in the grandfather’s estate were the moving causes of the compromise and the execution of the notes.

These notes were paid in execution of the judgment rendered.

The grandfather owned very little if any property other than community property in this State.

Pending the litigation on these notes the grandmother died, leaving her property to her daughters, and omitting as had the grandfather to mention the plaintiff, her grandson, as a legatee.

Her legatees offered her will for probate in this State, in which, as an absentee, she had immovable property.

The will was probated and the defendant and her sister, from whom she has since inherited, were recognized as heirs, and as such were placed in possession.

In the inventory the property is described and appraised as belonging to the succession of the grandmother. No reference whatever is made to the grandfather as part owner.

The plaintiff, availing himself of his forced heirship, contested defendant’s rights to the entire property.

There was a compromise effected, under the terms of which he was promised the sum of three thousand dollars.

In order to enable the two heirs to raise the amount, they mortt gaged the property of which plaintiff claimed to be part owner.

In all the proceedings in court, and in all transactions regarding the heirs and their interest, the succession is referred to as that of the grandmother alone.

But the property is described as a whole, and a value is placed upon it as belonging exclusively to her succession.

In other words, the compromise relates to plaintiff’s estate eo nomine, but the description of the property includes the property of the grandfather.

Plaintiff’s counsel, in support of the demand of his client, argues, substantially:

That the compromise did not contemplate including any of the rights of plaintiff, as forced heir, in the grandfather’s succession, but that it was limited exclusively to the grandmother’s property.

The defendant interposes the plea of payment, and pleads that plaintiff has no further interest in the property; that he has been .settled with and paid in full, not only for his interest in the grandmother’s estate, but also for his entire interest in the property, both ns heir of his grandmother and as heir of his grandfather.

The judgment of the court a qua was in favor of the defendant. The plaintiff prosecutes this appeal.

Bill of Exceptions.

The original compromise agreement was forwarded to the heir now deceased.

It was lost, and in consequence the defendant offered to supply-the loss, and to that end produced a copy, substantially, of the document and offered verbal testimony.

The plaintiff objected, on the ground that the foundation had not been laid to admit secondary evidence of loss.

The testimomy was admitted over plaintiff’s objection.

The issue presented in the bill of exceptions is the first which presents itself for our determination.

The defendant deposed that her sister had sole charge, and acted in her own right and as her (defendant’s) agent in making the compromise; that she never saw any of the papers; that she made thorough and diligent search in her sister’s papers that came into her possession after her death, and searched in those places where there was any likelihood of finding them; that she had made every possible effort and inquired of those who might have seen them; all in vain.

There is no absolute rule upon the subject.

The required evidence to show the contents of an original paper will vary according to circumstances.

This defendant shows that she has exhausted her sources of information and the means of inquiry which suggested themselves.

Nothing creates the impression that the search has not been made in good faith. All that can be required, in the absence of the least cause of suspicion, is reasonable diligence to find the original.

In the ease of Baines vs. Higgens, 2 L. 222, cited by plaintiff’s counsel, the statement was made that the witness had seen the bill of sale among the papers of the deceased, and that some of the papers were lost.

The glaring defect was that the witness had never made search for the document, and did not establish a reasonable certainty of loss.

In another of the cited cases, Lockhart vs. Jones, 9 R. 386, affiant deposed that he had handed the letter to his attorney, and that since he had made search for it in his own office. Having handed it to his counsel, an account of his search in his own office would not always make it evident that the writing is lost.

In Ticknor vs. Calhoun, 29 An. 278, the court held that the evidence did not establish the loss; the deposition of the attorney who' testified about a transfer did not show that his client had exhausted all sources of information.

• We do not think that the case at bar would justify excluding the evidence that was admitted regarding the contents of the written compromise.

On the Merits.

The principle enunciated that compromises regulate only such' matters as appear to be embraced in them by the intention of the parties, and that they should not be extended to other things, is plain and self-evident.

It remains for us to determine whether the facts of this case are within the application of the principle.

In the proceedings before the court having probate jurisdiction in Kentucky, the appearance of plaintiff’s guardian was not limited to an opposition to the probate of the grandfather’s will.

The interest of the plaintiff in the estate is referred to and does appear to have been overlooked when notes were executed in favor of the guardian. That interest is stated as being the consideration.

It is not established that the withdrawal of the opposition to the probating of the will was all that was required of the plaintiff in order that he might recover the amount promised.

If he had no right in the estate at all the withdrawal of the opposition was without any importance whatever and offered no consideration for executing two notes.

It is stated in positive terms in the pleadings that the notes were given in consideration of the interest of Clarence Cochran, plaintiff in this suit.

We do not think that it devolves upon us to decide that he was absolutely concluded by the proceedings before the court in Kentucky.

This was in 1884. His guardian had closely litigated the rights of her ward and had recovered payment of the notes.

She must have been advised of the extent of the interest of her son in the property in this State, and the son on reaching his majority in 1886 must have known that the property of which he claimed a part was carried in the inventory of his grandmother’s estate as belonging exclusively to that estate.

In all the calculations made with the view of agreeing upon an amount for his interest, the value of the whole property was the basis. After the amount had been agreed upon, the funds needful to pay the plaintiff were raised by placing a mortgage on the whole property to secure the loan that was applied to the payment of the plaintiff.

That method of obtaining the amount needed was generally discussed and the court has no reason to conclude that plaintiff’s guardian and afterward the plaintiff himself were not fully informed upon the subject.

The act of compromise contains the declaration that upon payment of three thousand dollars, which were paid subsequently, the plaintiff obligated himself to execute a complete discharge of all rights and interest belonging to the succession of Mrs. Martha A. Oochran in Louisiana, particularly the property described and set forth in the inventory.

To illustrate:

A and B were the owners of property: the title was in the name -of the former; but it was well known that the latter owned half.

After their death C and D, heirs, entered into a compromise and treated the property as belonging exclusively to A’s succession, and then made a settlement entirely on that basis.

D, who received his share, determined by reference to the value ■of the whole property, has no right to claim an interest in B’s half after having received his portion of the whole property.

The res, and not a mere name, enters into the consideration of the question involved.

The plaintiff has received his fractional interest in the thing, whether in the name of his paternal ancestor or in the name of his maternal ancestor; it does not alter the fact that he is paid in full.

The defendant, before this court, prays for damages for frivolous appeal. The issues are not frivolous, and not such as authorize us to grant damages.

The judgment is affirmed at plaintiff and appellant’s costs.


author: MoBnery, J.

text:
    No. 11,348.
    J. W. Castles, Liquidator, vs. City of New Orleans et als.
    Itl the assessing of the shares of stock under Sec. 27 of Act. 106 of 1890, it is no ground for annulling the assessment when the list of shareholders appear in a different part of the assessment book from that in which the assessment is first noted, if there has been a substantial compliance with the law in assessing the shares to each stockholder.
    The assessment book may not be conveniently and artistically arranged, but this does not injure the bank, as it is only the agent of the shareholders for paying the tax.
    PPEAL from the Civil District Court, Parish of Orleans. King, J.

      Farrar, Jonas <& Kruttsehnitt Attorneys for Plaintiff and Appellee .
    The shares of a national bank must be assessed to the shareholders and not to the bank, and an assessment made of such shares in globo to the bank is null and void, and in contravention of the statutes of the State, and the statutes of the United States. Revised St. U. S., Sec. 5219; Revenue Act of 1890; Board of Liquidation vs. Thoman, 42 An. 606; Insurance Company vs. Board of Assessors, 42 An. 1132; Miller vs. The First National Bank,. 25 Am. and Eng. Corp. Cases, 289; City of Springfield vs. First National Bank, 14 Am. and Eng. Corp. Cases, 342; Morse on Banks and Banking, Vol. 2, Part 2, Sec. 141, and authorities there cited.
    A pencil memorandum containing the list of the shareholders of a bank in the back of the assessment roll, not conected therewith by any memorandum or reference, not included in the aggregate footings of the assessments of each district, not described by any district or locality or square, is not a part of the legal assessment, roll. Albany City Bank vs. Maher, 6 Fed. Rep. 417.
    If such assessment is no part of the assessment roll, and there is, in the proper place in the assessment roll, an assessment of all the stock of the bank in globo to the bank, and such assessment is void, the bank is not estopped by having made application to reduce the amount of such assessment.

      E. A. O’Sullivan, City Attorney, and Horace L. Dufour, Assistant City Attorney, for Defendants and Appellants:

      The assessment complained of is legal and valid, and in accordance with the statute. Sec. 27 of Act 106 of 1890.
    Plaintiff is estopped by its conduct from urging'the invalidity or illegality of the assessment, having recognized its legality and validity by making ^application for correction on grounds other than those urged in the petition, which are now advanced for the first time.
    The objections urged against the assessment come too late, plaintiff having failed to make application for relief to the board of assessors or committee of the council on the grounds urged in the petition. These prerequisites are sacramental conditions precedent to obtaining relief. 32 An. 160; 34 An. 372; 39 An. 208; 41 An. 1047; 43 An. 813.
    Under Act 96 of 1877, which applies to the city, twenty per cent, damages should be granted in dissolving injunctions of this kind. Sec. 55, Act 96 of 1877; Succession of Stewart, 41 An. 130.
   The opinion of the court was delivered by

MoBnery, J.

The plaintiff, liquidator of the late Southern National Bank, instituted this suit to restrain the city of New Orleans from collecting a tax of ten thousand two hundred and eight dollars, assessed against the shareholders of said bank.

The averments in plaintiff’s petition are that, under the laws of the United States and the laws of the State of Louisiana, the assessment should have been against the shareholders individually and by name, showing the amount of taxes due by each shareholder, and to deduct the same from the interegt of the shareholder in the bank; that the Board of Assessors in making the assessment violate the laws of the United States and of this State, as they made the assessment for five hundred and ten thousand four hundred dollars against the shareholders in block and against the Southern National Bank for account of the shareholders.

The city answered by a general denial and prayed for the dissolution of the injunction, with statutory damages.

There was judgment for plaintiff as prayed for. The city appealed,

Sec. 27 of Act 106 of 1890, under which said assessment was made, is as follows: “ That no assessment shall hereafter be made under that name, of the capital stock of any national bank, State bank, banking firms or banking associations, whose capital stock is represented by shares, but the shares shall be assessed at their actual value as shown by the books of the bank, or banks, to the shareholders who appear as such upon the books, regardless of any transfer not registered or entered upon the books; and it shall be the duty of the president, or other officer, to furnish to the assessor a complete list of those who are borne upon the books as shareholders; and all taxes assessed shall be paid by the bank, company, firm association or corporation, which shall be entitled to collect the amount from the shareholders or their transferees.” * * * *

On page 24 of the assessment book the shares are assessed:

“ Southern National Bank, square 227, Varieties and Gravier street; No. of shares, 500.000; value of each share, $102.08; total value of shares, $510,400.”

On the bottom of the page are memoranda showing by what process of calculation the value of each share was ascertained.

On page 124 of the book is a “ List of shareholders of the Southern National Bank.” This is followed by the name of each shareholder, with the number of shares owned by him, the value of each share and the total value of all the shares owned by him, assessed to him and opposite his name in the appropriate columns.

The shares, therefore, are not assessed to the bank in block, but to the individual shareholders.

The book, or volume 1, is the assessment roll, on which the assessment of the shares is entered. The roll is an entirety, and the assessment of the shares does not appear on a list separate or apart from the roll.

Mechanically, the assessment roll might have been more artistic, and somewhat more convenient, by arranging the list of shareholders on page 24, immediately following the memoranda of “shareholders of the Southern National Bank,” and the tabulated statement following, instead of preceding this list. But it is not apparent how or in what manner the bank has suffered injury by this arrangement.

The assessment is a substantial compliance with ' the law, and although on the book there is no extended space for the insertion of the tax against each shareholder, yet the value of the share is the basis for the apportionment of the tax on the shares on the tax roll.

The omission of the tax on the assessment roll will not increase the tax-when extended on the tax roll; and, as the mere agent of the shareholders, for paying the tax, the bank’s interest in the mere mechanical arrangement of the assessment is very remote.'

We do not find, however, in Act 106 of 1190 any provision making it the dnty of the assessor to extend, in a separate column, the tax assessed against the property. This is done on the tax roll.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the injunction sued out herein be dissolved and set aside, without damages, plaintiff to pay costs of appeal.


text:
    No. 11,894.
    W. R. Wadsworth vs. The City of New Orleans.
    In a suit by the alleged transferee of certificates or claims against the city, and the ownership of the transferee is specially denied, there must be evidence of the transfers executed by the parties to whom the amounts of the claims or certificates were primarily due. 42 An. 164; 43 An. 78.
    A transcript, purporting tobe from the books of the Comptroller, headed “Recorded in Comptroller’s books in name T. Nolan, transferee,” and followed by a list of names and amounts, offered to show the transfers of the claims and certificates by the parties named, does not establish ownership in the transferee, nor was it admissible for that purpose.
    APPEAL from the Civil District Court, Parish of Orleans. J.

      B. A. O’ Sullivan, City Attorney, H. L. Dufour and Henry Renshaw,■ Assistants, for the City.

      Charles Louque Attorney for Plaintiff and Appellant.
   The opinion of the court, affirming the judgment of the District-Court, was delivered by Miller, J.


text:
    No. 11,547.
    State of Louisiana vs. Gabe Jones.
    The accused appealed from the verdict and sentence refusing him a new trial on the ground of newly discovered evidence.
    Applications for new trials on this ground must be received with caution; there-was an absolute want of ordinary diligence on the part of accused.

      The court that sat on the trial, that heard the witnesses, had opportunity to form an opinion of the facts and attending circumstances, and having determined that the newly discovered evidence was cumulative, will not be overruled by this court.
    "The accused having applied for an order to examine witnesses on a day fixed, his failure to call witnesses that were within the process of the court add to reasons justifying refusal of a new trial. Examination of witnesses to provenewly discovered evidence was within the discretion of the trial judge. Citing, State vs. Washington, 36 An. 341; State vs. Beiard, 34 An. 105.
    APPEAL from the Criminal District Court, Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, and Jno. J. Finney, Assist•■ant District Attorney, for the State.

      Louis P. Paquet Attorney for Defendant and Appellant.
   The opinion of the court, affirming the judgment of the District ■Court, was deliveted by Breaux, J.


text:
    No. 11,551.
    The State vs. Charles LeDuff.
    Whatever the answer of the juror on his voir dire to the questions of counsel for the accused, if it appear on the whole examination, and especially to the questions of the judge, that the juror has no fixed opinion — i. e., that can not be changed by testimony, and his mind is in a condition to do justice, according to the evidence and the charge of the court, he is a competent juror. 35 An. 302, 31V; 38 An. 41, 480.
    If the accused obtains an acceptable jury without exhausting his peremptory challenges, this court will not direct a new trial, because the bill assigned error in tb^ overruling of the challenges for cause made by the accused. Ibid.

    APPEAL from the Fourteenth Judicial District Court, Parish of Pointe Ooupee. Talbot, J.

      M. J. Cunningham, Attorney General, and Alex. Hebert, District ■Attorney, for the State.

      Yoist & Claiborne Attorneys for Defendant and Appellant.
   The opinion of the court, affirming judgment of the District Oourt, was delivered by Miller, J.


text:
    No. 11,527.
    State of Louisiana vs. Ben Saintes.
    Tn the absence of some charge of fraud or wrong committed in the drawing or the summoning of the general venire of jurors, which would work great and irreparable injury, a motion to quash and set aside the venire can not prevail. Citing Act ái of 1877, Sec. 10.
    APPEAL from the Nineteenth Judicial District Oourt, Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, and R. F. Broussard, District -Attorney, for the State.

      Edward Simon and L. 0. Hacker Attorneys for Defendant and Appellant.
   The opinion of the court, affirming judgment of the District Oourt, was delivered by Watkins, J.

Rehearing refused.


text:
    No. 11,509.
    The State of Louisiana vs. Henry Jackson.
    In an indictment for rape the averment that the act was committed against the will and consent of the.female, is equivalent to the averment "without her consent.” Hence, under such indictment, testimony is admissible that she was under the consenting age, the testimony supporting the averment “without her consent.” Wh. O. L., Secs. 556, 558, 559; 1 Bishop, 1121,1122; 2 Bishop, 61.
    APPEAL from the Eleventh Judicial District Oourt, Parish of St. Landry. J.

      M. J. Cunningham, Attorney General, and E. B. DuBuisson, District Attorney, for the State.

      Jno. N. Ogden and W. W. Bailey Attorneys for Defendant and Appellant.
   The opinion of the court, affirming the judgment of the District Oourt, was delivered by Miller, J.


text:
    No. 11,557.
    State of Louisiana vs. Grant Rutledge.
    A transcript of the record of appeal not filed on the return day nor witbin three-judicial days following the return day, the appeal will be dismissed.
    APPEAL from the Twenty-first Judicial District Oourt, Parish of Jefferson. Rost, J.

    The Attorney General moved to dismiss the appeal; the counsel for the Defendant and Appellant joined in the motion.
   The opinion of the court was delivered by Breaux, J.


text:
    No. 11,545.
    The State of Louisiana vs. Theogene Labauve.
    The defendant was convicted of larceny. He alleges as errors:
    1. That the general venire for the term had been illegally drawn. This ground is not tenable, for, though under indictment, he did not move to annul and set aside the venire on the first day of the term..
    2. That one of the jurors was a non-resident. This ground is not sustained by the facts certified to this court; moreover application for a new trial for this cause should show not only that defendant was not, but that counsel also was-not aware of any fact affecting competency of juror, if he was incompetent.
    3. That one of the defendant’s witnesses, charged with perjury, was arrested in the presence of the jury that tried him. It is not shown that the arrest was-made in the presence of the jury. State vs. Ford, 37 An. 456.
    4. That the property aileged to have been stolen was not described. The property was described with legal certainty. Quoting State vs. Johnson, 30 An. 904; State vs. King, 87 An 179; State vs. Bassett, 34 An. 1108; State vs. Carter, 33 An. 1274; State vs. Curtis, 44 An. 320.
    APPEAL from the Seventeenth Judicial District Court, Parish of Vermilion. Allen, J.

      M. J. Cunningham, Attorney General, and M. T. Gordy, Jr., District Attorney, for the State.
    L. L. Bourges and A. & Chas. Fontelieu Attorneys for Defendant and Appellant.
   The opinion of the court, affirming judgment of District Court, •was deliver-d by Breaux, J.


text:
    No. 14,466.
    A. T. Felt vs. The Vicksburg, Shreveport & Pacific Railroad Company.
    In a suit for damages against a railroad company for opening one and closing two culverts in the road-bed, extending through plaintiff’s land, by which it is claimed by plaintiff, the rain and seepage water were made to stand in his field, and drainage prevented, causing the loss of crop; the court will Inquire into the situation of the land and its means of drainage, and the company will not be held responsible, if from the testimony it appears the plaintiff’s alleged losses were due to depressions in the land, and obstructed drainage, not at all connected with the closing or opening of the culverts.
    APPEAL from the Seventh Judicial District Gourt, .Parish of Madison. Montgomery, J.

    The judgment of the District Court sustained the demand of plaintiff for the removal of the box culverts .and rejected all claim for damages.

      James T. Coleman Attorney for Plaintiff and Appellant.

      Stubbs & Bussell Attorneys for Defendants joining in the appeal asking that .Plaintiff’s entire demand be rejected.
   The opinion of the court, reversing the judgment of the District Court and rejecting plaintiff’s demand, was delivered by Miller, J.


text:
    No. 11,400.
    F. P. Gravely vs. Southern Ice Machine Company.
    A substantial compliance with the provisions of the law (Act 37 of 1882) in reference to third persons claiming personal property seized, is all that can be required. Making affidavit as to the character of the ownership thereof with a view of demanding a bond of indemnity is such compliance. When the civil sheriff refuses, after such a notice, to proceed with a sale under execution until bond shall have been furnished by the seizing creditor, the court will not disturb the ruling of the lower court, refusing to set aside seizure, but staying execution until further orders.
    APPEAL from the Civil District Court, Parish of Orleans. ■ Bightor, J.

      The plaintiff, Gravely, in execution of a judgment in his favor against the defendant Ice Company, seized the claim sued upon in Stewart, assignee, vs. Judah Hart et al. On December 15, 1893, T. F. Stewart filed with the civil sheriff his affidavit setting forth that the Southern Ice Machine Company had executed its private deed of; assignment to him of the claim seized; that he took possession-, thereof, and that the claim was worth its face value, the sum of' sixty-three thousand dollars; thereupon the civil sheriff called' upon Gravely, the seizing creditor, to furnish a bond in the sum of one hundred and twenty-six thousand dollars. On November 17, 1893, plaintiff proceeded by rule against the civil sheriff, to show cause why he should not proceed with the execution and sale, on the ground that the affidavit of Stewart was insufficient to justify the demand for an indemnity bond. The sheriff notified the attorneys of Stewart of the taking of said rule, and requested that they defend the same. The said attorneys declined to take notice of the-rule, and demanded the notice of three days required therefor by the rules of the court. Before proceeding to try the rule, the sheriff objected that Stewart should be made a party thereto; this, was refused by the court, which then rendered a judgment ordering that the sale be deferred until further orders, without detriment to-the seizure, which should continue until the rule was passed upon; the trial of which rule was suspended until further orders.

      Branch K. Miller Attorney for Plaintiff and Appellant.

      Wynne Rogers Attorney for Civil Sheriff, Appellee.
   The opinion of the court, affirming the ruling of the District Court,, was delivered by Watkins, J.


text:
    No. 11,442.
    State of Louisiana vs. Sonny Alexander.
    On Judgment Against Suretv on Appearance Bond.
    The appellant seehs to avail himself ol the delays in civil proceedings, in which a devolutive appeal may he talcen within one year from date of judgment - Forfeiture of bonds under act of March 11, 1837, Revised Statutes, Sec. 1032, is a proceeding criminal in its character. State vs. Cassidy, 7 An. 276; State vs, Williams, 37 An. 200

      Appeals Irom sentences and judgments in tlie Criminal District Court of the parish, of Orleans must betaken in conformity with the statute regulating appeals in criminal cases.
    Judgments forfeiting bonds by said court are controlled by the same statute.. State ys. Burns, 38 An. 363.
    The judgment of forfeiture was rendered January 17,1893; the appeal was taken. January 15,1891. The appeal is dismissed.
    APPEAL from the Criminal District Court, Parish of Orleans. Ferguson, J.

      E. A. O’Sullivan, City Attorney, for Appellee.

      Jos. D. Kiernan, J. Z. Spearing and Bernard Titohe Attorneys for-Surety, Appellant.
   The opinion of the court was delivered by Breaux, J.


author: Watkins, J.

text:
    No. 11,362.
    Mrs. Johanna Train and Mrs. Nestor Faivre vs. Mrs. Catherine Cronan et al.
    The rule is that when the opinion of the possessor who holds an object under a title of sale has a just ground, though in fact there is.no sale, the opinion is. equal to title.
    A title defective in form can not be the basis of prescription. By this is meant a title on the face of which some defect appears, and not one that may be found1, defective by circumstances, or evidence dehors the instrument.
    APPEAL from the Civil District Court, Parish of Orleans. J.

      P. M. Milner Attorney for Plaintiffs and Appellants:
    Prescription can not be accepted as intended to perfect titles in cases in which the gravest irregularities and absolute nullities.. have been propounded. 32 An. 914.

      Henry P. Dart Attorney for Defendants and Appellees:
    When the widow and heir of the dead defendant acquiesce in the execution of a judgment affirmed against him on appeal, after-his death, they are estopped to contest the validity of that. execution. Under such a showing, the burden of proof rests on the plaintiff-, not only to establish the original title of their ancestor, but also to establish that they have been illegally evicted therefrom, and that the present possessors of the realty are in bad faith; otherwise the prescription of ten years, pleaded by the defendants, is well pleaded. Patterson vs. Maloney, 38 An. 885; C. 0. 3481.
   The opinion of the court was delivered by

Watkins, J.

This is a petitory action instituted by the widow and sole surviving heir of George W. Train, deceased, for the recovery of two lots of ground situated in the sixth district of the city of New Orleans, charging an illegal and simulated sale thereof in August, 1875, under a certain void and illegal judgment and sale, through the instrumentality of which they were dispossessed in the year 1878.

The statement of plaintiff’s case, as it appears in their counsel’s brief, is as follows, viz.:

The petition avers that plaintiffs, Mrs. Johanna Train and Mrs. NestorFaivre, the former the widow of George W. Train, and the latter the only surviving child of said Train, are the owners of the property described therein; that George W. Train died the 19th of March, 1871; that at the time of his decease he was the lawful owner and possessor of the property aforesaid, which plaintiffs have inherited; that said property was acquired by said Train by authentic act of purchase, 12th June, 1866; that the plaintiffs have been illegally dispossessed of same by virtue of an alleged judgment, execution and sale in suit No. 1265 of the Sixth District Court, entitled Garrish vs. George W. Train; that in said suit, pending an appeal to the Supreme Court, George W. Train departed this life; that nevertheless a judgment, eo nomine, against defendant was rendered, without making his heirs parties; that his legal representatives were never made parties in the lower court; that the return on a fi. fa. to make damages shows that defendant, George W. Train, was dead; that nevertheless the property was sold August 14, 1875; that petitioner remained in possession until some time in 1878; that'these proceedings, judgment, execution and sale are absolute nullities. Petitioners aver that defendants, Mrs. Cronan and husband, are in possession of said property; they charge simulation and bad faith in the successive conveyances; and pray for judgment decreeing the aforesaid judgment, execution and sale and sheriff’s deed absolute nullities, and the conveyances under which defendants claim null and void; they pray that they do recover the property and the revenues of which they have been illegally deprived.”

The defendant tendered various technical pleas, such as misjoinder •of defendants, res adjudieata, estoppel, no cause of action, and the prescription of ten years, all of which were overruled except the last, and judgment rendered in favor of the defendant Cronan.

It is from that judgment the plaintiffs have appealed. In this court the defendant and appellee filed an answer to the appeal and requested an affirmance of the same; and, in the alternative that this court should not favorably consider her plea of prescription, she prays that her other demands and exceptions be sustained and that thereupon judgment be affirmed.

To this answer the appellants object and protest, on the ground that it seeks an amendment of the judgment, and that it comes too late, same not being notified to them.

The order of appeal made this case returnable on the first Monday in November, 1893, but it was not fixed for trial until the third of January, 1894, at which time it was not reached, and was therefore continued. It was again set down for trial on the 14th of March, 1894, when it was argued and submitted.

Consequently, the appellee’s answer was in ample time, having been filed on the 29th of December, 1893. Appellants were not entitled to any notice of the filing of appellee’s answer, and a simple inspection of the record would have furnished them all the information that was necessary. Appellee’s brief was filed in this court on the date the cause was first fixed for trial. The objection is untenable.

Taking up the defendant’s plea of ten years’ prescription, on which the lower judge founded his judgment, we find the facts to be as follows, viz.:

Mrs. Catherine Cronan, defendant, acquired the property in dispute on the 30th day of April, 1892, by purchase from Charles L. Wirth and Ernestine Piper, by a notarial act of sale in due form, which contains the recital that Mrs. Piper acquired title by purchase from Henry P. Davis, by notarial act, under date July 18, 1878, duly registered in the book of conveyances.

Reference to the act of that date shows that Henry P. Davis sold same property to Mrs. Piper for a valuable consideration, and with full warranty, the act reciting that the property conveyed was the-same that the vendor acquired by purchase at sheriff’s sale made in the suit of Joseph Garrish vs. G. W. Train, No. 1625 on the docket of the Sixth District Court of the parish of Orleans, on the 14th of August, 1875, the sheriff’s deed bearing date February 9, 1878, and likewise duly recorded.

The prooes verbal of the sheriff’s sale was not put in evidence, but a conveyance certificate was introduced, and it. shows the fact of the sheriff’s adjudication as recited in Davis’ deed, and gives full particulars of date and description.

The defendant states as a witness that she purchased the property as stated in her title and paid the purchase price. That, before purchasing, she had a lawyer to examine the titles to the property, and he pronounced them good, and on the faith of his report she made the purchase. That soon after her purchase she went into actual possession of the property and commenced the erection of a house, when this suit was brought. That at the time of her purchase she was not aware that there was any complaint about the titles to the property.

The defendant’s title is traced back to the sheriff’s sale made-under executory proceedings in 1878, under which G. W. Train was divested of possession and Henry P. Davis, adjudicatee, was placed in possession, under an order of court, and in which the plaintiff evidently acquiesced.

Referring to the record of the suit of Joseph Garrish vs. G. W. Train, in this court — which is brought up in the original — we find that the order of seizure and sale bears date October 18, 1870, and was predicated upon an act of special mortgage of date April 20, 1867 — just one year subsequently to his purchase of the property from Pliny Earl Davis, the title on which the present suit is founded.

The defendant appealed suspensively from the order, and the appeal was presented and decided on an assignment of errors, and the decree of this court confirmed the order and awarded ten per cent, damages.

We find nothing in the record to show that the defendant was dead at the time judgment was rendered, on the 20th of April, 1874; and the extracts in evidence from the Sixth District Court show that the purchaser was put in possession of the property in pursuance of an order of court.

We think there can be no question of the defendant’s title being perfected by the prescription of ten years under a title translative of property, under the principles announced by this court in Patterson vs. Mal.ony, 38 An. -885.

Judgment affirmed.

Rehearing refused.


text:
    No. 11,379.
    City of New Orleans vs. Home Insurance Company.
    The defendants made a return showing money at interest, its credits and its bills receivable, which was received as correct by the assessor.
    In answer to piaintift’s rule and in defence the defendant alleges that .losses by fire were suffered to a large amount shortly after its return had been made to the assessors.
    The evidence is that none of the money at interest, credits and' bills receivable assessed remain.
    The requisite demand prior to seizure of other property than that assessed has been made.
    The plaintiff has exhausted its remedy by rule to compel the delivery of the' property assessed. The right to seize other property than that assessed becomes the issue.
    It is reserved to the plaintiff, subject to such legal right as ¡the defendant may plead.
    PPEAL from the Civil District Court, Parish of Orleans. . Ellis, J.

      E. A. O'Sullivan, City Attorney, Geo. W. Flynn, Assistant City .Attorney, for Plaintiff and Appellee,
    cite Sec. 31, Act 106 of 1890; lee Company vs. Tax Collector, 42 An. 669; Sec. 20, Act No. 7,of 1870.; Mullan vs. Creditors, 3.9 An. 3,97; See. 22, Act.20 of 1882.

      Farrar, Jonas & Kruttschnitt Attorneys for Defendant an'd Appellant: ' ' ’ '
    Where a rule is taken upon a tax debtor to produce property taxed, in order that it may be sold by the tax collector, proof that such debtor has none of the property in his possession is a perfect defence, because tbe judgment can only be that he pro- ' du'ce the property, and the court will not order a vain thing. State vs. Y. & A. Meyer & Co., 41 An. 436.
    Since the passage of Act No. 135 of 1888 the city is required to farm out and adjudicate the contract to collect delinquent taxes • and licenses to the lowest bidder, after public advertisement. See Sec. 7 of Act. This act divests the treasurer of all power to take judicial or other proceedings for the collection of a tax; and he has no more power and authority in the premises than the Commissioner of Public Works, or any other city official.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, by rule, seeks to compel the defendant to deliver personal property, for the taxes of 1892, in order to sell it at public auction to satisfy the taxes, penalties and costs.

The property is described as money at interest, credits and bills receivable, amounting to two hundred and ten thousand one hundred dollars, and money in possession, eleven thousand two hundred dollars.

The taxes claimed by the city is four thousand four hundred and seventy and twenty-six-one-hundredths dollars, plus interest.

The assessment was proved as alleged by the plaintiff.

The defendant, through its president, deposes, that its return, dated January 27, 1892, to the Board of Assessors, which served as a basis of the assessment, was correct, at the date it was made.

That the company suffered severe losses between the 18th of January and the 3d of April of that year; the net amount of these losses was one hundred and fifty-eight thousand dollars. The items of the different losses are given in a statement filed in evidence.

The witness referred to the fires that occurred on Canal street and those among the cotton presses as having caused the loss.

He also stated that the losses were paid out of the property assessed and that none of the cash on the bills receivable taxed remained on March, 1893, at the time the rule was filed.

■The judge of the District Court, upon these facts, found that the defendant company had on hand none of the money at interest and cash assessed. The rule was dismissed.

The plaintiff, a municipal corporation, can proceed by rule to compel the tax-payer to deliver to the tax collecting officer the personal property assessed, to the end of realizing, at public sale, the amount' of the taxes, costs and penalties. . ' ■ ■■

The plaintiff’s remedy in this respect is similar to that of the State.

On the merits, the argument on the part of the plaintiff is that the net loss is less than the amount assessed, and, that as there is.a re-' mainder of the property, the sale should be made absolute as to this remainder.

The amounts themselves sustain that contention, for the property assessed was valued at two hundred and twenty-one thousand three hundred dollars.

While the extent of the losses in the figures given is - one hundred and fifty-eight thousand dollars, caused by fires. ¡,

There is other testimony on the subject that does not limit'the losses to the last figures.

There has been a constant depreciation in values and in consequence it is stated that the surplus is no longer what it was.

These statements are not irreconcilable with the siatement that the amount of loss from certain fires was one hundred and fifty-eight thousand dollars.

To that amount these figures are corroborative.

The absolute, uncontradicted testimony is that in consequence of the company’s losses none of the cash or bills receivable taxed'remained in possession of the company.

With the evidence before us we do not feel authorized to conclude that there remains any of the property assessed, the delivery of which can be compelled.

It would not be reasonable to order a company to deliver prop-' erty the president, the only witness, deposes it has not in its'p'ossession.

The plaintiff has exhausted whatever remedy it had’ by rule. ' '

Whatever may be the cause of the disappearance of the values assessed, the fact remains that they are no longer in possession.

Nor can the responsibility of the parties for its disappearanéé be 1 tested on the rule at bar. ' : 1

It is the duty of the tax collecting authority to enforce' payment' by seizing, when possible, the property assessed. !

It is authorized to rule the tax-debtor into court to compel Mm1 to1 deliver the property that it may be seized.

If the property assessed has been concealed, parted with ór disposed of by the tax-debtor, so that its seizure has been rendered impossible by the debtor’s acts, seizure of other property becomes-possible.

The property in the case at bar has been disposed of, whether legally or not is a question that can not be determined on the trial of this rule..1 •

The remedy is pointed out by the statutes. Until applied in the manner, pointed out,-the courts are not called .upon to determine whether the disposition made of the property renders it impossible to collect the tax.

, The defendant has presented, as an additional ground of defence, that the power of the City Treasurer was divested and taken away fiom him. by Sec. 7 of Act 185 of 1888, which provides that at the end of each year the council shall farm out and adjudicate the contract to .the lowest bidder; that the .section is mandatory, and that only thevone -to whom the collection of the taxes has been farmed out has any-power,oí; authority to collect the taxes.

: The rule is presented by the City Attorney, who alleges that the, defendant is indebted to the city for taxes.

The Treasurer is also a party to the rule.

,.It was not su^d out exclusively in the name of the city, but the city is sufficiently a party to sustain the demand for delivery of the property assessed in order that taxes due it may be collected.

It is the city’s proceeding by rule to compel payment to the proper officer. The municipality has the authority to enforce the payment of taxes, and has, to that end, all the remedies given to the State for the collection of her taxes.

If no farmer of the tax has been selected, or if that official is recreant to his trust, or if for any other reason he does not choose to act, the municipal government is not divested of all its authority of enforcing the payment of taxes due.

The right of the city to proceed, after an ineffectual attempt has been made to have the property assessed delivered, to be sold for the payment of taxes, is reserved in the judgment appealed from— i. e., the right to seize other property than the property assessed without prejudice to such legal defences as the defendant may have to offer.

It is therefore ordered, adjudged and decreed that the judgment of the court a qua is affirmed.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,408.
    Widow S. Durward et als. vs. Mrs. Jennie Jewett et als.
    In an association like the Iron Hall where all the members, although residing in different jurisdictions, are bound by a common contract to the Supreme Rep - resentative of the order, which manages a trust fund for the benefit of the entire membership, if a court at the domicile of the association appoint to it a receiver, on account of its insolvency, it is competent for a court in another jurisdiction to order trust funds, forming a part of the trust funds held by a local branch, to be paid into the hands of the receiver.
    It is no objection to such an order that the central authority has made a regulation that only a certain portion of the trust fund shall be forwarded to it at stated times. The insolvency of the association makes the whole fund demandable for the purposes of distribution among those who have acquired rights on it.
    PPEAL from the Oivil District Court, Parish of Orleans. King, J.

      Morris Marks and Albert Voorhies, Attorneys for Plaintiffs and Appellees,
    cite Niblack on Mutual Benefit Societies, pp. 156, 157, 167, Secs. 135, 136.

      Branch K. Miller, Attorney for Defendants and Appellants,
    cites 81 N. Y. 508; 129 Mass. 70; 137 Mass. 372; 31 Hun. (N. Y.), 553-4; 24 N. E. 374; 4 Penn. St. 519; 16 Fed. Rep. 14; Faily vs. Taulbee, 55 Fed. Rep. 892.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs are members of branch No. 1148 of the Order of the Iron Hall. This society or association is insolvent, and is in the hands of a receiver appointed in the State of Indiana, at its headquarters or domicile at Indianapolis.

The plaintiffs allege that the Iron Hall has ceased to exist, does no business; and, as members of branch 1148, they fear that the officers thereof will send the money, property, etc., of said branch to the receiver in Indiana. They pray for an injunction restraining them from sending said money, etc., beyond the limits of this State. The injunction issued as prayed for, and on its trial was perpetuated, and, in accordance with the prayer of the petition, the property was deposited in court.

Subsequently an order was granted distributing the fund among the members of branch 1148. The officers against whom the injunction issued resist the same, on the ground that the money belongs to the “ Supreme Sitting ” of the order — that is, to the entire membership of the order, of which the former is the representative.

The fund in controversy is the reserve fund from assessments made prior to the appointment of a receiver. It is true that the Iron Hall is hopelessly insolvent; but, as it is a corporation, organ - ized under the laws of Indiana, the appointment of a receiver did not destroy its corporate existence, unless there had been a judgment forfeiting its charter and a receiver appointed to wind up its. affairs in accordance with the decree. But it does not appear that, any such decree of forfeiture has been rendered.

When the receiver was appointed, he undertook, under the supervision of the Indiana court, to manage the affairs of the corporation, substituting the court’s administration of its affairs for that of the officers of the corporation. Faily vs. Taulbee, 55 Fed. Rep. 893.

The Iron Hall was organized as a mutual benefit society. Assessments were made for various purposes — to take care of the sick, to-pay insurance on the lives of deceased members and to provide-a benefit fund for all who had complied with the rules and regulations, of a sum not exceeding one thousand dollars.

All who became members of the order were bound by the rules- and regulations, and there was a contract between and among all its members throughout the many States in which the order existed. All who have complied with the rules and regulations have rights upon the reserve fund — the sick, the heirs of deceased menbers and those-who were entitled to the benefit fund shown by certificates against the assessments of which the reserve fund forms a part.

■ The assessments were made for the purpose of meeting their obligations, and the fund arising thereform is a trust fund held by the-the order either immediately or through its branches for destination to its proper uses.

■ Section 1 of Law II of the order is that twenty per cent, of the-amount reserved by each branch on each assessment shall be set aside- and retained as a reserve fund, which is declared to be the property of the Supreme Sitting and shall be subject to its control at all times-as provided by the order. After the expiration of six years and six months from the date of the organization of the order, one-seventh of the reserve fund, then on hand, shall be called for to pay benefits,. and annually thereafter one-seventh of. the reserve fund shall be-called in for like purpose.

Section 2 restricts the investment of the reserve to the local branch, and provides for the manner of its investment. Plaintiffs contend that the order having ceased to exist and being no longer able to carry out its objects and purposes, that said fund reverts to-the original subscribers of the branch.

This was a trust fund, and held not alone for the benefit of the members of the local branch, but for all the membership of the order. The fact that the trust could not be carried out as originally intended can not deprive these members of the rights which they have acquired on the trust fund. Every member of the order must-be to some extent likened to a shareholder in a business corporation. The forfeiture of the franchise does not include forfeiture of' property, and when this has been declared extinguished property rights are not destroyed. Courts will so manage the property as to-preserve all rights upon it accordingjto law. Morawetz Private-Corporation, par. 1033.

And the fact that the legal title to property becomes extinguished by a dissolution of the corporation does not destroy the rights-of beneficial owners upon it. Id. 1032.

The members of the order, like shareholders,' are the beneficial owners of the twenty percent, reserve fund. Allwhohave paidassessments have an interest in this fund, whether he resides in Indiana, New Jersey, or this State. It was made for a specific purpose, the benefit of which was to inure to the whole brotherhood, and not for any particular branch.

Equity will always protect the rights of a cestui que trust without regard to the strictly legal title; and, therefore, when a corporation is dissolved, a court of equity will recognize and protect the-equitable rights of the shareholders, for whom the corporate body as recognized by law was merely a representative, or trustee, and the assets of the dissolved corporation will be treated in equity as a trust fund belonging to the shareholders of the company,, subject to the rights of its creditors.” Morawetz Private Corporation, 1032.

The organization of the courts of Louisiana, the principles enunciated-in the code and the rules of practice enable them to fully carry out this equity doctrine.

The Supreme Sitting is unquestionably the owner of the fund. It was held for it by the local branch, and for the purpose of carrying out the trust has the right to demand the fund from the local branch.

The fund was to be called for after the lapse of time in small amounts. But when the corporation became insolvent and was placed in the hands of a receiver the entire amount became due and demandable in order to satisfy those who had claims upon it.

The fund had been paid in on assessments. Individual ownership over the amount ceased. Title was vested in the Supreme Sitting, and the local branch only held it ;for it, and it did not extinguish ownership, but only regulated a call on it at stated periods. The inability to carry out this regulation did not cause the fund to revert to those who had paid the assessments.

Tn the case of Faily vs. Taulbee, 55 Fed. Rep., p. 892, there was a proceeding instituted by the receiver of the Iron Hall to gain possession of the reserve fund held by a local branch in Rhode Island.

The defendants in that case urged what the plaintiffs do here.

The United States district judge in that case said: “The argument then is that, according to this law, the Supreme Sitting can call for the reserve fund only at certain times and for certain purposes, and therefore the receiver can call it in only at those times and for those purposes, and not for the general purposes of liquidating the Whole trust fund. This argument, I think, rests on a misapprehension of the effect of the laws of the society. They undoubtedly do impress upon the funds the character of trust funds, and perhaps affect different parts of the fund with different equities, but as to the time and manner of ascertaining and marshaling these equities, and as to the method of administration of the fund accordingly, they must be taken to be abrogated in the case where, as this bill alleges, the society is insolvent. ’ ’

In an association like the Iron Hall, where all the members of the society, although residing in different jurisdictions, are bound by a common contract to the Supreme Representative of the order which undertakes to manage a trust fund for the benefit of all its members, if a court of the domicile of the order which assumes jurisdiction appoint a receiver on account of insolvency, it is competent for a court in another jurisdiction to order funds, forming a part of the trust funds, to be paid into the hands of the receiver. Id. The receiver is not here demanding this reserve funds but the injunction issued on the hypothesis that he might demand them. Hence we have of necessity been compelled to treat the case as though the receiver was plaintiff in a demand for the fund.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed. It is now ordered that the demand of plaintiff be rejected and the injunction dissolved.

Rehearing refused.


text:
    No. 11,396.
    C. H. Parker, State Tax Collector, vs. Shareholders of the Southern Bank.
    The attorney appointed to assist the tax collector is not an assistant to that official in his capacity as tax collector, but is appointed as a necessity for the purpose of bringing suits, which is an employment separate from and independent of the duties of the tax collector’s office. Sec. 5á of the Act 55 of 1818 is not in conflict with Arts. 52,208,210 of the Constitution.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      B. Lyons Attorney for Plaintiff and Appellant.

      Farrar, Jonas & Kruttschnitt Attorneys for Defendants and Appellees.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff tax collector proceeded by rule against defendants, under Sec. 54 of Act 55 of 1888, to compel them to deliver the personal property assessed and taxed to them. The rule was discharged and the tax collector has appealed.

The defences to the rule are:

1. That the assessment of shares to the shareholders is made in block, and not individually to the shareholders.

2. That the appointment of an attorney at law to aid the tax collector is null and void, being in violation of Articles 52, 210, 203 of the Constitution of the State.

The first point has been disposed of in the case of Castles vs. City of New Orleans, just decided.

On the second ground the defence to the rule is equally untenable. Article 52 of the Constitution says: “The General Assembly shall have no power to increase the expense of any office by appointing ■ assistant officials.”

The answer to this is that the attorney appointed to bring suit for-the tax collector is not an assistant to that official.

Section 54 of said act authorizes the tax collector to proceed by rule-in a summary manner against the delinquent tax-payer when he can not make a seizure of the personal property assessed because of its nature, or when the tax-payer controls the property in such a manner that he can not “ lay hands upon it.”

The employment of an attorney at law to institute and prosecute-the proceedings is a necessity. His duties are not such as to make-him an assistant tax collector any more than the clerks employed in the tax collector’s office constitute them assistant tax collectors.

Article 203 of the Oonstitution relates only to the equality of taxation. Article 210 declares that there shall' be no forfeiture of property for non-payment of taxes, and provides that the collector shall sell the property assessed without suit. The proceedings authorized, by the Act 85 of 1888 in no way violates this article, as the authorized proceeding is not against the property for the purpose of provoking a practical sale, but against it and the tax-debtor to compel its delivery, so that the tax collector can dispose of it as authorized by said article of the Oonstitution.

The judgment appealed from is therefore annulled, avoided and-reversed, and it is now ordered that the sale be made absolute, as-prayed for, the defendants in rule to pay costs.

Rehearing- refused.


author: Miller, J.

text:
    No. 11,385.
    James McConnell, Jr., vs. Benjamin Ory et al.
    In the suit for slander of title if the defendant sets up title, lie changes the character of the action. It becomes a suit to try titles in which the burden of proof to maintain title is on defendant as in the petitory action. 11 La. 187; 27 An. 613; 35 An. 355; l An. 90.
    The party who promises to lend money required by the applicant for the loan to redeem his property from a tax sale will not be permitted, after that promise and the faith it inspires acted on by the applicant, to redeem from the tax sale and acquire that property for himself. Bigelow on Estoppel, Chap. 19.
    APPEAL from the Civil District Oourt, Parish of Orleans. King, J.

      F. E. Rainold and Chas. F. Claiborne Attorneys for Plaintiff and Appellant:
    In an action for slander of title, defendant who answers, setting np title, assumes the position of plaintiff in a petitory action, and must recover on the strength of his own title.
    The State, having acquired nothing from the sales absolutely null, could transfer no rights. Breaux vs. Negrotto, 43 An. 433.
    ' The sales to the State were null—
    (a) Because notice was not given the delinquent tax-payers. La. Const., Art. 210; Breaux vs. Negrotto, 43 An. 433.
    (5) Because the assessment of the property was insufficient for identification. Agusti vs. Lawless, 45 An. 1370.
    (c) Because no plan was referred to in the assessment. Bell vs. Taylor, 37 An. 57.
    Where an agreement has been made to lend money on mortgage on a particular piece of property,- for the express purpose of paying . the taxes due upon the same, a relation of the trust is established between the parties, and the lender is estopped to set up against the borrower a tax title which he has acquired subsequent to the agreement.

      E. E. Moise and B. R. Forman Attorneys for Defendants and Appellees :
    The deeds are prima facie valid. Const., Art. 210; Act No. 42, 1871; Const, of 1868, Art. 118; 43 An. 730; Act No. 77 of 1880; Act No. 96 of 1882.
    ■ The plaintiff having two remedies, which are mutually inconsistent, adopting one repudiates the other.
    An action for slander of title, damages and annulment of defendant’s title is the action at bar. * 1

      ' This repudiates the action of the principal against the agent to disgorge, since it negatives the agent’s acquisition.
    ' The denial of the validity of the title repudiated the agency — a plaintiff can not have one action in his pleadings and another in his brief.
    ' The action is possessory and petitory.
    .It shall be presumed the possessory has been relinquished to resort to the petitory. C. P. 150.

      Possession Is not and never was in plaintiff.
    Tradition or delivery of immovables accompanies the public act. R. 0. 0. 2479.
    An authentic act is not an authenticated signature to a private act. R. 0. 0. (passim) 2253.
    The State acquired. Defendant can not impeach what the State does with its own. 26 An. 701; 27 An. 238; 43 An. 873.
    The description is better than the one held good in Smith vs. City, 43 An. 734, 726.
    Informalities. 45 An. 485.
   The opinion of the court was delivered by

Miller, J.

In this suit plaintiff sues for slander of title, and to annul a tax title to the property involved in the controversy, asserted by one of the defendants. The plaintiff derives title by purchase in 1894 from Julia O. Roe, widow of John Green, and she acquired it in 1871; the property being described as a portion of ground consisting of five lots, numbered from fifty-six to sixty, on upper side of State street in Bloomingdale; the numbers and measurements of the lots according to the plan of Bloomingdale. Besides this title, the plaintiff alleges, as a ground of recovery, that defendants are estopped from disputing his ownership.

The defendant Ory answered, alleging that he had purchased from the State, for account of his co-defendant, the property in controversy, the property having been, the answer alleges, forfeited both for State and city taxes, and sold to the city as well as the State for unpaid taxes. The sale from the State relied on by defendants in their answers are by deed dated 16th of May, 1892, from the State Auditor for the unpaid' taxes of 1881, 1882 and 1883. The other defendant, Dowers, answered, averring the purchase for his account by the auditor’s deed, and asserting in his defence the ownership of the property under that deed. In both answers the estoppel pleaded by plaintiff was denied. After these answers the defendant excepted on the ground of misjoinder of the demands made in plaintiff’s petition, and required plaintiff to elect the cause of action on which he stood. The exception was overruled. Thereafter the defendants pleaded prescription in aid of the tax title asserted by them, and the forfeitures of the property prior to plaintiff’s purchase, for non-payment of the taxes, city and State, assessed against Widow Green, the author of plaintiff’s title. The answer of each defendant claimed damages of plaintiff for the matter alleged in the petition as constituting the estoppel urged against defendant.

The judgment of the lower court was against the plaintiff, and against defendants on their demands for damages. The case is here only on plaintiff’s appeal.

It was unnecessary for plaintiff asserting title from Widow Green to demand the annulling of the tax deed to one of defendants. If plaintiff’s title was sustained, the tax title of course failed. The petition substantially presented the issue of plaintiff’s ownership, involving the considerations of the tax title. In this view defendant’s exception of misjoinder, even if in time, was properly overruled, and we do not appreciate that any importance is attached to it in this court by the defendants.

The action of jactitation does not ordinarily try titles to property. Its object is to quiet possession. It demands of defendant a disclaimer or an avowal of the slander. If disclaimed, the purpose of the law is attained and the suit ends. If the slander is admitted, then the defendant is ordered to bring suit to maintain his asserted title, and with that decree the jactitation suit terminates. If, however, the defendant sets up a better title in himself, that issue changes the character of the action. The whole object of the suit being to compel a disclaimer, or that defendant shall sue to establish the ownership he asserts, if defendant in his defence avers title, the court proceeds to determine that issue. It would be idle to order the defendant to institute another suit to establish title, when by his answer he tenders that issue. Nor does it make any difference that the defendant does not pray for judgment recognizing his ownership. It is enough that in the jactitation suit his defence is title. There can then, be no question that this suit for slander of title has become, by defendant’s pleading, a suit to try titles; and, although in our view not at all important in this controversy, it is equally plain that in the changed character of the action the defendant assumes the burden in respect to proof, of the plaintiff in the petitory action. Proctor vs. Richardson, 11 La., p. 187; Bidwell vs. Cavaroc, 27 An. 807; Dalton vs. Wickliffe, 85 An. 355; Packwood vs. Dorsey, 4 An. 90.

The plaintiff’s title is, as stated, derived from Widow Green. The asserted title of defendant Dowers is based on the tax assessment against her. Plaintiff and defendant thus claim under a common author. In our view it is unnecessary to consider the questions discussed at the bar in reference to defendant’s tax title, as to the sufficiency of the assessment in respect to the description of the property, nor whether notice of the tax sale was given.

The decision of this controversy is in our opinion controlled by the estoppel pleaded by plaintiff. The plaintiff’s purchase of the five lots in controversy was on the 13th April, 1892; the price paid was four hundred dollars, and besides plaintiff assumed all the unpaid taxes. For some of these taxes there had been forfeitures and a tax sale to the City, and a tax sale to the State for the taxes for 1881, 1882 and 1883. Of course, without payment of these taxes and a relinquishment of the tax adjudications to the State and city, the plaintiff’s purchase was ineffective. The plaintiff testifies that in this condition, within a day or two after his purchase, he applied to the defendant Ory, a part of whose business it is to lend money, for a loan of five hundred dollars to pay these taxes.

The plaintiff stated to Ory substantially, that the money was required to pay the taxes on five lots on State street, adjoining Mr. Ricker’s house, on the woods side, purchased from Mrs. Green, and the plaintiff adds in testifying, that he remembers with distinctness the situation of the property was communicated. Ory answered he would lend the money if the title was good. The plaintiff further testifies, he allowed some days to elapse without completing the loan promised, and of course without paying the taxes. But while the plaintiff was thus waiting on the reliance that the loan would be forthcoming when he called for it, Ory effected the purchase of the lots from the State for his own account, or rather for his clerk, Dowers, in whose name the auditor’s deed was made of date 16th of May, 1892. We have given careful attention to the issue of fact, whether as testified by plaintiff the communication stated by him was made to Ory, and that he promised the loan. If this proposition of fact is maintained, we think the legal principle clear that determines the controversy.

The plaintiff’s testimony is clear and positive. With his mind intent on securing the loan to pay the taxes on which his title depended, it is natural that the communication and Ory’s promise should have been impressed on plaintiff’s memory. Was there any room for mistake as to the property on which the loan was desired? Mr. Ory testifies, lie thought the property intended was a part of the ten lots on State street, known as the Bundy lots, claimed by plaintiff under a tax title, and besides involved in litigation. Ory knew all about the Bundy lots, the tax title and the litigation. He states he supposed plaintiff might have acquired another besides his tax title. But if he had supposed the loan was desired on these Bundy lots, it seems natural he would at once have declined the loan, for he testifies, he does not lend on tax titles; or if he had thought plaintiff had acquired another title it seems singular that believing, as he testifies, the loan was sought on the Bundy lots, he should not have asked some questions as to the title. Again, he testifies, after the application for the loan on five lots on State street, he asked as to their location. Why the question if he supposed the five were part of the Bundy lots, with the location of which he was acquainted? There would seem to be nothing in plaintiff’s application to borrow on five lots bought on State street, adjoining or near Bicker's, that would suggest they were part of these Bundy lots, on which, in the then condition known to Ory, no one could expect to borrow, still less anybody who would lend. That Ory could have derived the impression the Bundy lots were to be subject of the loan is utterly unaccountable, too, if, as the plaintiff testifies, he stated the loan was desired on five lots he had “ purchased a day or two since from Mrs. Green.” The examination of Ory’s testimony, in its entirety, conveys the 'impression his memory of facts and impressions is not accurate. Indeed, at the outset he states he is a busy man and can not remember small details. Again, he testifies the only thing of which he is absolutely conscious, is that plaintiff did not deliver his title or state the lots he owned, and never mentioned the numbers fifty-six to sixty. He does testify emphatically, he had no suspicion that lots fifty- six to sixty had been bought, and if he had had that suspicion he would have stopped all researches that ultimately led him to make the purchase. But he does not controvert in his testimony the plaintiff’s statement that the loan was asked on five lots on State street, or that it was communicated that the lots were near or adjoining Bicker’s, nor that the loan was promised. To our minds the variance, if variance it can be termed, in the testimony of Ory and that of plaintiff is unimportant. The plaintiff adds the circumstance, not stated by Ory that the name of the author of plaintiff’s title, Mrs. Green, was also communicated. On the question of details it is human experience and the rule of law is that testimony affirmative in its character prevails over negative testimony. Philips on Evidence; 2 An. 1006.

In this view we deem the testimony of plaintiff more reliable. Dowers testifies, he does not profess to have heard all that passed, and his testimony does not materially affect the issue. It is our conclusion the communications as detailed by plaintiff were made, and if not to the full extent he testifies, enough was certainly conveyed to Mr. Ory to afford him reasonable cause to know when he paid the taxes and bought, in the name of his clerk, five lots on the upper side of State street, near Ricker’s, and assessed in the name of Mrs.' Green, that he was undertaking to acquire the same property on which he had agreed to loan the plaintiff. Allowance is to be made for Ory’s testimony that he had not the least suspicion of the identity of the property. One part of his testimony seems to concede, if he had had the knowledge fie disclaims, he could not have made the purchase. He surely knew enough, as we think, to make him pause. If he had paused all doubt on the point of identity would have been resolved. It often happens that what is said of importance to appreciate and remember, leaves no fixed impression. According to his testimony that was the case with Ory. All that we decide is, that plaintiff’s communications were of a nature and in substance and detail sufficient, to convey to Mr. Ory that impression he states he did not derive as to the identity of plaintiff’s lots with those Ory bought from the auditor, or at least were enough to suggest the strong probability that when he bought five State street lots near Rickers, for taxes assessed equal to Mrs. Green’s, he was buying the same lots on which he agreed to lend the plaintiff. On any question arising on the acts or conduct of a party affecting another’s interest, that which the party has reason to know or suspect is equivalent to actual knowledge.

On the faith of the promise of Ory to lend on the .five lots plaintiff acted and had a right to rely. If Ory’s purchase is maintained, then by reason of that reliance plaintiff loses the property, and the money he paid for it. Ory would be the gainer. Instead of being the lender of the money promised on the mortgage of plaintiff’s property, Ory would own that property for the taxes plaintiff had expected to pay with the money Ory had promised. The result, so disastrous to plaintiff and advantageous to Ory, would be due entirely to the confidence, utterly disappointed, which plaintiff reposed in Ory’s promise. The legal principle readily suggests itself that precludes such a result. It is urged on us that Ory ; t the time of plaintiff’s application for the loan was investigating tax sales of property on State street with a view to purchases, and plaintiff’s application should not, it is suggested, have the effect of disabling Ory from making these purchases. If he had desired freedom of action in this matter, he should have declined the application. Plaintiff would then have sought the money elsewhere. But surely, Ory could not promise the money plaintiff needed to secure- his title and then take steps for his own benefit, which, if successful, utterly defeated plaintiff’s title.1 The argument for the defence, also lays stress on the delay of plaintiff in calling for the promised loan. Plaintiff was not as prompt as he might have been. But he-evidently, acting on his reliance that the loan would be forthcoming when called for, did not appreciate the necessity of immediate-action. He must have been very prompt to have protected himself, for within a month and a day or two after the promise of Ory he had taken all necessary steps and secured the tax deed for himself, We do not think Ory’s obligation arising from his promise is subject to the measure of time suggested to us in this connection.

The estoppel arises against the party on whose acts or conduct another has acted or relied in á matter affecting his interest, and he against whom the estoppel is asserted, will not be permitted to set up any right or title inconsistent with his acts or conduct; and prejudicial to him who has acted on the faith created by such acts or conduct. All the elements of the estoppel, we think, are present in this case, forbid the defence of title asserted by defendants and uphold that of plaintiff. Bigelow on Estoppel, 19th chapter.

We think the justice of the case requires plaintiff should be decreed to be the owner of the property on reimbursing the taxes paid by Ory.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, in so far as it dismisses the plaintiff’s suit, be avoided and'reversed; the plaintiff is hereby recognized and decreed to be the owner of the five lots of ground on upper side of State street, numbered 56 to 60,1 according to the original plan of Bloomingdale, and acquired by him from Widow Green by act of date the 13th of April, 1892; it is further decreed that defendant Dowers relinquish in favor of plaintiff, by authentic act, within ten days from the filing of the mandate in the lower court, the tax title asserted by him to the property under the auditor’s deed, of date 16th of May, 1892; but this decree is not to be operative unless plaintiff, on the execution and filing in court of the copy of such act of relinquishment, pay to defendant, or deposit in court for him, the amount of all the taxes, city and State, on said property, and the attendant charges of redeeming said property paid by defendant, ■with legal interest on the amount so paid by defendant from ithe dates of said payments; the amount of this reimbursement ito defendants to be ascertained, if necessary, by proper proceedings in the lower court; and it is further adjudged that defendants pay costs in both courts.

Rehearing refused.