author: Nicholls, C. J.

text:
    No. 13,225.
    William G. Taylor vs. E. Evariste Moise.
    Syllabus.
    T. Tlie period for the redemption of property from a tax sale does not date from the filing for record of a mere written statement by a tax collector that he has, upon a particular day, adjudicated at a tax sale certain described property to a person named, for a declared price, the receipt of which he acknowledged ; such an instrument is not the equivalent of the deed to be given to the purchaser.
    2. The refusal by the purchaser of property at a tax sale to accept a tender legally made by a mortgage creditor of the former owner in redemption of the property authorizes the latter to proceed to the forclosure of his mortgage, contradictorily with his debtor, and the tax purchaser is thereafter without legal interest to question the regularity of the proceedings:
    3. After a sale of property to a certain named person, under reservation of a special mortgage with the clause de non alienando, the lattei placed of record a statement that in making the purchase he had acted in behalf of another. The vendor in foreclosing his mortgage caused notices to be given .to both. Held, That by doing so he did not waive his right to executory proces's nor was he forced, as having recognized a “third possessor”, to have had recourse to an hypothecary action strictly' such.
    PPEAL from the Civil District Court, Parish of Orleans — King, J.

      'George W. Flynn and James B. Rosser, Jr., for Plaintiff, Appellee.

      James Legendre and Benjamin Rice Forman for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 4th of June, 1893, the plaintiff by act before Choate, notary public, sold to Warren H. Moise, certain property in the «ity of New Orleans, described in the act of sale. The price of the property was ten thousand seven hundred and -fifty dollars, of which six thousand dollars were paid cash; the balance of the price being represented by three promissory notes of the purchaser to the order of, and by himself endorsed, dated Oct. 1st, 1892, each for the sum of fourteen hundred and sixteen dollars and sixty c^nts, maturing respectively in one, two, and three years after date with eight per cent, per annum interest thereon from date until paid. These notes were as to their payment secured by special mortgage and vendor’s privilege on the property sold, with the clause “de non alienando”. This act was duly re- ■ corded.

On the 2nd day of February, 1894, Warren IT. Moise, the declared purchaser in the above act, appeared before Choate, notary public, and two witnesses and, after reciting that he had on the 14th of June, 1898, by act before' Choate, purchased the property described in that act, in his own name declared that as a matter of fact, and truth, the said property was purchased by him for the account of, and as the property of Warren M. Guyol, Louise H. Guyol, Emily M. Guyol, Laura M. Guyol, and Louis O. Guyol, of whom he, appearer, was the tutor.

James O. Moise and E; Evariste Moise, intervened in said act declaring that as relatives of said named minors they were consulted by Warren H. Moise about the advisability of purchasing the property described, for said minors, and they advised the same and they believed the declarations of Warren TI. Moise to be correct and true. ■ This act was recorded in the conveyance office of the Parish of Orleans, on the 7th of February, 1894. On the assessment rolls of the Fourth District ofTthe city of New Orleans for the year 1894, appears the following extract from the assessment of property in Square No. 222, Prytania and St. Charles, ITarmony and Pleasant.

On the 29th of June, 1895, the property so assessed'seems to'have been offered at tax sale for taxes of 1894, and adjudicated to J. A. Reinach.

On September 4th, 1895, the following' entry was made in the books 'of the conveyance of the.city of New Orleans.

. Office of the State .Tax Collector, Fourth District (which comprises the Fourth Municipal District of the-city of New Orleans).

New Orleans, June, 1895.

Reeeivedfrom Mr. J. A. Reinach, the sum of seventy-six and 35-100 dollars, the same being price of adjudication of the property described below, and assessed in the name of Warren II. Moise, and George O. Preot, notary public, is authorized to pass an act of sale to the said J. A. Reinach in accordance with law.

(Signed) W. T. Patton, Tax Collector.

Per A. Jones, Dy.

Dates advertised, May 25, June 4,11, 18, 25, 29,1895.

Date adjudicated, June 29, 1895.

Description of Property.

Moise, Warren II. — State tax of 1894, $51. Orleans Levee District tax, $8.50. Total, $54.90.

Description of Property. — A certain lot of ground and improvements thereon, in the Fourth District of the city of New Orleans, in the square bounded by Prytania, Pleasant, St. Charles and Harmony streets, designated as Lot. No. —, in square No. 222; said lot measures 60 feet on Prytania street, by a depth of 150 feet. The portion sold being the 57 feet nearest Pleasant street”.

On the 4th of June, 1896, the following transfer was made to E. E. Moise:

“I hereby transfer1 this adjudication to E. E. Moise, and authorize the making of the deed to him, as I bought for his account.” New Orleans, June 4, 1896.

(Signed) Jacob A. Reinach.

On the 22nd October, 1896, a deed of sale was passed between Geo. C. Preot, then collector of the Fourth District of New Orleans, and E. Evariste Moise, in which recitals were made by the former of the various steps taken in the matter of the enforcement of the property assessed in the name of Warren H. Moise, as if Preot, himself, had ■been the tax collector at the jdato of the adjudication-

By that deed the property therein described is transferred by the said Georce O. Preot, tax collector, to E. E. Moise, as having been adjudicated on the 29th of June, 1895, to J. A. Reinach “for account of E. E. Moise,” and “E. E. Moise” accepted the property “with the right to be put into actual possession thereof by order of any competent jurisdiction; the said property being redeemable at any time, for the space of ■one year beginning on the date that the said act or deed is filed in the •conveyance -office, by paying the price paid by the purchaser, with twenty per cent and costs added.”

The act was recorded on the 22nd October, 1896.

On the 17th August, 1897, the plaintiff, in presence of witnesses, tendered to E. E. Moise the sum of two hundred and fifty dollars, .simultaneously handing him the following letter:

“Dear Sir — In order that I may get my mortgage in better shape on the property sold by me to W. H. Moise, being the property situated on Prytania street, between Louisiana avenue and Toledano street, and which you claim to have bought at tax sale for the taxes for the year 1894, and which property you now claim as belonging to you, I desire to reimburse you all money which you may have paid at the tax sale, and for taxes paid by you since on the property, together with the interest, penalties, costs, or other charges, including the twenty per cent, penalty, with a view of redeeming the property from you and restoring it to its lawful owners.
“I am now prepared to make you a legal tender of such amount as may be due, or which you may claim due, for the purpose of making-such redemption and restoring the property to its lawful owners, to the end that my mortgage may remain unimpaired.
“This offer and tender is made without, in any manner, intending to prejudice my existing- rights, or without intending to recognize the validity of the title under which you claim, in any manner, shape, or form.”

E. E. Moise refused to receive the money, declining the tender.

On the 23rd of August, 1897, the plaintiff applied for and obtained an order from the Civil District Court for the seizure and sale of the property mortgaged to him by Warren H. Moise. The property was seized and on the-day of-sold to the plaintiff, W. G. Taylor, at the sheriff’s sale.

In his petition for .executory process the plaintiff, Taylor, referred to the declaration made by Warren H. Moise in the act of February, 1894, to the effect that although he had taken the title of the property which he had purchased from Taylor in his own name, he had bought it in. reality for his wards, the Guyol minors. ITe also averred that Warren H. Moise had left the State permanently, and that these minors were: without a tutor. In view of these facts, he prayed that the executory proceedings be conducted contradictorily with a curator ad hoc, appointed to represent Warren H. Moise, and a tutor ad ho,c to represent, the minors. This was accordingly done, and the property went to sale under these circumstances.

After Taylor had become the purchaser of the property, he suggested that fact to the District Court, and that he had complied with all his obligations under the adjudication to him; that he was entitled to be placed in possession, and that he had frequently requested the sheriff to place him in possession, and he had illegally and wrongfully refused to do so.

Upon these suggestions the court ruled the sheriff to show cause why he should not complete the adjudication by placing the purchaser in possession.

In answer to this rule, the sheriff averred that the occupant of the-property had exhibited to him a tax title, apparently valid in form, under which he claimed possession; that he had taken proceedings, against E. E. Moise, the holder of the tax title, to show cause why he should not deliver the property to him; that he could not ignore this, tax title, unless specially ordered so to do; that he was .ready to execute-any order the court might render in the premises.

In the rule taken out by the sheriff on E. E. Moise, to show cause why he should not deliver the property to him, the latter answered that he admitted he was in possession, as owner, of the property. That said property was sold on the 29th of June, 1895, by Patton, tax collector, to J. A. Reinach, and the proces verbal of sale was registered in the-office of conveyances on the 4th of September, 1895; that on June 6th, 1896, Reinach transferred his rights therein to him, which was also registered on June 6th, 1896; that in satisfaction thereof an authentic act of sale was made, by the tax collector, of said property, and the legal effect thereof was to cancel the. mortgage declared on by Taylor; that he could not be injured and divested in the manner attempted in that proceeding; that if this exception was overruled, and not otherwise, he averred the proceeding taken out was irregular and void, and of no effect, to vest any title in W. G. Taylor, and he, respondent, having possessed for more than a year, he could not be evicted by a possessory action, and no petitory action could be brought by the sheriff in the form of a rule, and Taylor having judicially averred and recognized in his petition third possessors,, could not proceed against them in the manner attempted by executory process, but only by the regular hypothe■eary action, and all of his pretended proceedings (against which he protested at the time before the sale to Taylor) were null and void.

He prayed that the demand of the sheriff be rejected at his costs.

The plaintiff, Taylor, moved the court to consolidate his rule against the sheriff with the sheriff’s rule against E. E. Moise, but the court refused to do so.

On the trial of the rule against Moise, it was dismissed as of non-suit. The present action was then brought.

The evidence showed that, after the purchase of the property from Taylor, the Guyol minors occupied the residence under the charge of their aunts; that they occupied it at the time of the tax sale, and still ■do so. It is claimed that the property was leased from E. E. Moise, by one of the aunts, and that the taxes, repairs and insurance bills have "been paid by monies received from her as lessee. The evidence shows that the property, since the tax sale, has been assessed in the name of the Guyols; that the tax bills have been made out and receipted as monies received from them, though paid by E. E. Moise. One of these tax receipts shows a subrogation by the tax collector, to Moise, to the rights of the State.

Looking at matters, after they have shaped themselves, assisted by the side light thrown upon the situation by the testimony as to the relations of all the parties, we have no difficulty in reaching a conclusion as to the reasons which controlled, and the purposes and motives which actuated E. E. Moise in this matter. It is established that he is a near relative of the Guyol children, and that they and their aunts hold him, to-day, in great affection. Everything goes to show that any testimony (whether drawn from him or others) which would place him in the attitude of having acted in opposition to their interests, or as a ■spoilator of their property, is without foundation. We are satisfied that what he has done has been done with a view to their protection, but in manner such as †0 attempt to keep him free from legal liability towards them. His whole course has been directed towards holding quoad them, and quoad Taylor, the position of a “third person,” with the ultimate object of making his acts finally enure, as by future gratuitous action on his part to the benefit of his relatives.

The situation of the children was peculiar and distressing. They were without father or mother. Their uncle had been appointed their. dative tutor. As such he had received some seven or eight thousand, dollars of their patrimony. This money, without the advice of a family meeting, he invested in the property purchased from Taylor,, taking the title, however, in his own name, not theirs.

A large portion of the price was on credit notes,, secured as to payment by special mortgage and vendor’s privilege. The purchase was-made upon reliance upon funds being received from an insurance-policy upon the life of their father, sufficient in amount to pay off the-deferred instalments. It became evident that, from some cause, these notes would not be paid, and that a constantly increasing interest debt would sweep away the property. Under such circumstances the tutor made a disclaimer of being its real owner, and placed of record that he-had purchased the same for his wards.

True this would not of itself convey title to them, for they could (if it should be to their interest so to do) repudiate the action of the tutor and look to him personally for recourse. None the less the disclaimer- and declaration would be a standing barrier as between them and their tutor from any adverse claim of ownership by him in the future, should matters so develop later as to make it to their interest to take the title.. It was under this condition of things, and from this condition of things, that the present situation has arisen. E. E. Moise reasoned he owed no-legal duty to Taylor, the holder of the mortgage on the property, and that it was for him to guard his own interests; that he owed no “legal”' duty to his relatives, the G-uyol children; that he was not charged with the obligation of furnishing them with money to pay and keep down taxes; that if taxes should fall due and the property be sold to pay them, it would be no legal fault of his; that he was a third party, as. free to buy the property at a tax sale as any other person; that if he-should do so, the course he would pursue in regard to the ultimate disposition of it was a matter which no one could legally question.

We think that, moved by these considerations, Moise took no steps to-pay the tax of 1894; he saw in its enforcement a possible method by which the Warren II. Moise title could be displaced and the G-uyol children made to benefit. He permitted matters to drift to a tax sale, intending to purchase the property and take the title in his own name. Instead of doing this immediately at the sale, he caused one J. A> Reinach to' appeal- as the adjudicatee and pay the price of adjudication, with the understanding that the title should be finally placed in him. This was done through an assignment of Reinach’s rights under the adjudicaton to him, followed by a deed of the property to him from the tax collector.

We think everything- indicates a fixed determination on the part of Moise to place matters in such shape as to enable him to claim and urge throughout that he was a third party in the whole transaction; that he was acting as agent or negotiorum gestor neither for Warren H. Moise nor for the Guyol children, but that from a legal standpoint he was acting in his own behalf, not theirs, let the motives for his conduct be what they might. He was willing to be of service finally to the children, but unwilling to place himself in any position by reason of which they could hold him to legal liability.

The appearance of Reinach, a third person, as the original adjudicatee, is one fact in support of this, and another is that just so soon as Moise himself took title, he arranged with one of the aunts of the children that she should appear as his lessee,, so that the monies which would be expended thereafter for taxes, repairs, and insurance upon the property, would appear as his monies received by him by way of rent, and not the minors’ money.

The evidence shows that monies came from different outside quarters, which were applied in this way. The money which went to pay Reinach, as the consideration of the transfer of the title of the property to Moise, came in the shape of a draft or check on New York from an uncle of the minors in Georgia, made out for the exact price of the transfer, and made payable to the order of E. E. Moise. The claim is made that this draft was money advanced by this uncle to his sister (the aunt of the minors), to assist her in paying her rent to the defendant; that the money it represented was really the latter’s money and applied by him to making the purchase. A large part of the brief of counsel is made up in discussion as to whether the defendant owed any duty towards Taylor, the mortgage creditor; whether‘the defendant had not purposely kept from him a knowledge of the tax proceedings before and after the sale; whether he had not intentionally and designedly lulled him into security as to payment of his mortgage, so as to get the benefit of the running out of the period for the redemption of the property. *

The conclusion we have reached on one branch of this case renders unnecessary any discussion or decision upon this. The plaintiff made a tender to the defendant on the 17th of August, 1897, to re-imburse him for all outlays made by him in the premises, with interest, etc. It is' admitted 'that the tender was good if not too late.

We are of the opinion that it was not too late; that the period for redemption commences to' run from the day when the deed executed by the tax collector to the purchaser is filed for record in the conveyance office in the parish where the property is situated. The statement shown to have been filed in this case in the conveyance office of the Parish of Orleans, on the 4th day of September, 1895, was not the instrument the law 'required to be filed to start the running of the period- for redemption. The tender made by the plaintiff was sufficient. Its rejection by the defendant divested him of the right to call in question the legality or regularity of any subsequent proceedings which might be taken out by the plaintiff in enforcement of his mortgage on the property. The defendant insists that he has been in possession for more than a year, that under his right of jiossession he can call in question the regularity of the proceedings in the executory proces; that plaintiff has recognized the Guyol children as “third possessors” and plaintiff was bound to proceed in the enforcement of his mortgage by an action strictly hypothecary. We do not think that the plaintiff has ever recognized the Guyol minors as being third possessors, or that he proceeded against them as such; he made them ¿parties to the mortgage proceeding not as holding a derivative title to the property, under Warren II. Moise, but as being possibly the original purchasers of the property through their tutor.

In view of the uncertainty as to where the real title was, he took the precaution of making all persons who might be so held — parties, in order to cut off subsequent pretentions. In respect to the possession of the property which the defendant has claimed to have since the tax sale, we think the position which a purchaser, at tax sale, occupies during the period of redemption is rather that of an occupant, than a possessor, in the strict sense of the term

Wo think the exercise, by the plaintiff, of the right of redemption, divested the defendant of rights of ownership in the property, and that he can not successfully resist in this suit — plaintiff’s claim of ownership and right to possession.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.


source: Caselaw Access Project

author: Nicholls, C. J. Breaux, J. Blanchard, J.,

license: Public Domain

text:
    No. 13,444.
    H. B. Pennington et als. vs. R. M. Jones.
    Syllabus.
    A plea of prescription of three years based upon actual possession for that period by an adjudicatee of property sold at a tax sale urged by the defendant in a petitory action in bar of an action brought for the recovery of the property, will not bar plaintiff's demand where the tax title is so radically bad as to have Justified the plaintiff in having had recourse to that form of action instead of an action to avoid the title.
    IN RE II. B. Jones et als. Applying for Certiorari, or Writ of Review, to the Court of Appeals, Eirst Circuit, State of Louisiana.

      B. A. Bennolds for Petitioners.

      Fred. W. Price for Respondent.
   The opinion of the court was delivered by

Nicholls, C. J.

The present is a petitory action brought by the plaintiffs for the recovery of the ownership find possession of certain property in the possession of the defendant, and the fruits and revenues thereof. They alleged they were the owners of the property by inheritance from their -mother; it having been paraphernal property and the title standing in her name. Plaintiffs referred, in their pleadings, to defendant’s claim of ownership as being predicated upon a certain tax sale, which they averred to be an absolute nullity for reasons assigned. They charged that the defendant had been ah initio a possessor in bad faith, and that he had availed himself of his possession to remove certain buildings from the premises, for the value of which they asked judgment.

The reasons assigned by the plaintiffs for the nullity of the tax sale, were:

Eirst — Tha,t the defendant and the tax collector, of Lincoln Parish, bad entered into a fraudulent conspiracy to get a title to said property, clandestinely, after the assessment roll of Lincoln Parish had been completed, for the purpose of having it .sold for taxes, so that the defendant could, clandestinely, buy it and get title to it.

Second — The property was not assessed in the name of the proper owner.

Third — The taxes on said property, for the year 1875, had been paid by Mrs. L. T. Pennington, or her legal representatives, and there were no taxes due on said property, either State or parish, at the date of the pretended sale.

Fourth — There was no- legal advertisement or description of the property, nor was the property seized by the sheriff, as required by law.

Fifth- — The property was sold by the sheriff without being legally seized, and without giving any of the legal notices, or complying with any of the requirements of the law, and there was no notice whatever.

That defendant knew that plaintiffs wore minors, and he was a possessor in bad faith.

Defendant answered, pleading, first, the general issue; he averred that the property was bought during the marriage of J. M. Pennington and his wife, Louisa Pennington; that it belonged tol the community between them, and was legally and properly assessed in the name of the husband, J. M. Pennington; that J. M. Pennington was present at the tax sale, and interposed no objection thereto, and was estopped "from subsequently contesting it. He urged the validity of his title, but prayed, in the event of eviction, for judgment in reconvention for taxes paid and improvements made on and disbursements for said property.

He pleaded the prescription of one, two, three, five and twenty years, averring that he had been in actual possession of the property under recorded title, since July, 1877.

The district judge found:

First — That there was no legal notice, such as the law required. A curator ad hoc could not be appointed as the evidence showed that the tax debtor was not unknown to the collector (Sections 1 and 8 of Act No. 47, of 1873, under which the sale was made). Section 1 of that act made notice essential as the first step to be taken by the tax collector, after assessment, and section 8 of the same law provided just as rigid requirements as to delinquent tax payers (Section 8).

If taxes were not paid after this- notice, this section of that act provided that the collector should make a seizure, of the property by recordation in the mortgage office, and the tax collector could proceed to sell on the 4th day after said seizure by recordation. This act made these steps of procedure, by the tax collector, a- basis or warrant for all subse-quent action, and were sacramental (46 Ann., 1482).

Second — There was no assessment of the property for the years 1873, and 1874, in Lincoln Parish — the years for which the property was sold.

Third — Some part, at least, of the taxes for which the property was-sold were not due, having been legally assessed and paid in the Parish of Bienville (34 Ann., 123, especially page 126).

The district judge was of the opinion that all of the above sacramental requirements were omitted in the making of the sale, and that, the sale was an absolute nullity, and should not stand in the way of recovery of their land by the plaintiffs. The court, accordingly, rendered judgment in plaintiffs’ favor for the recovery of the property and. possession of the same, decreeing the tax title set up by the defendant to be null and void. It further ordered, and adjudged and decreed that as to claims for rent and improvements, set up by plaintiffs and. defendant, respectively, there be judgment of non-suit under reservation of their respective rights.

Defendant appealed to the Court of Appeals.

The court sustained the prescription of three years provided by Act. No. 105 of 1874, which was pleaded by the defendant in bar of plaintiffs’' action, reversed the judgment of the District Court, and rendered judgment against the plaintiffs in favor of the defendant, rejecting their-demand with costs.

Upon plaintiffs’ application this latter judgment was brought up for review, under the provisions of Article 101 of the Constitution of 1898..

The Court of Appeals does not appear to have contraverted the findings of fact of the District Court, or to have passed beyond finding that,, as a fact, the defendant had been in actual, continuous, possession of' the property since July, 1877, under a tax deed made by the proper officer, which recites that the property was sold for the non-payment of taxes on the 14th of December, 1875, in accordance with section 4 of" Act No. 47 of 1873, after complying with all the provisions of the then existing laws.

It was of the opinion, we understand, that under such circumstances-the particular prescription invoked by the defendant barred the action, whether the tax title itself may have been absolutely null or not on the-grounds urged by the plaintiffs. The court erred in giving this broad' scope to Act No. 105 of 1874.

We have very recently had occasion to express.our views on this subject in In Re the Court of Appeals for the Third Circuit, applying to* .tliis court for instructions, in the matter of LeSeigneur vs. Besson, in .the following language:

“The Court of Appeals is in error in supposing that an adjudicatee, even at a tax sale, strictly such, would necessarily he protected from a recovery of the property adjudicated in a petitory action by the party ■owning the property at the time of the adjudication by the prescription of three years, because the tax purchaser had, after the sale to him, taken actual possession of the property and held it for three years.
“Whether he would be so protected would depend upon the character ■of the sale or adjudication made to him. If the sale should have been of a character such as to be absolutely null and void, and to entitle and .authorize the original owner to ignore it and bring a direct petitory .action to recover the property, the prescription of three years would not apply, but if the adjudication was only subject to attack for relative nullities, and that fact should be developed on the trial of the case, the plaintiff’s direct petitory action would fail, as the prescription of three years would bar an attack upon the tax title, and it would stand as a barrier blocking the way for a petitory action.
“Assuming that certain property had been legally forfeited to the 'State for taxes, it would by no means necessarily follow that a subsequent purchaser from the State, who, under the sale, had taken actual possession of property, and held it for over three years, would be protected by the prescription of three years from a recovery in a petitory action of the same, by the party owning it at the time of the forfeiture.
“If, for instance, subsequently to the forfeiture and prior to the sale to the third person the taxes had been paid by, or for, the owner, or the property had been redeemed by, or for, him, the sale by the State would have been made without any right or authority, and would convey no title to its vendee.
“The vendee, under such circumstances, would not hold under a ■direct tax adjudication to him, but under a sale made by the State, as an owner of property, which really did not belong to it, but to a third person.
“The prescription of three years would not be applicable to such a 'condition of affairs.”

The action of tie Court of Appeals in this matter was based upon an 'erroneous construction of law and can not be sustained, and should some of the grounds assigned for the absolute nullity of the tax sale be established, plaintiffs’ action will not be barred by the prescription of three years. Wilbert vs. Michel, 42 Ann., 853; Gill vs. Clark, 42 An., 921; May vs. Witkowski, 46 Ann., 1482; Hodding vs. City, 48 Ann., 982.

Eor the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment of the Court of Appeals, brought up herein for review, be and the same is hereby annulled and avoided and reversed, and matters are replaced in the Court of Appeals in. the situation they were just before the said judgment was rendered; and it is further ordered, adjudged' and decreed that the cause be remanded to the Court of Appeals, to be by it examined and decided on the whole record as it was brought on appeal before it, in conformity with the views herein expressed.

Breaux, J.

I concur in the decree. In my view it will now devolve upon the Court of Appeals to determine whether or not the sale is an absolute nullity.

If the nullity be absolute (if the tax deed be void) then the prescript tion will not apply.

If the nullity be not absolute (and the tax deed is not void) then prescription will be a bar to the action to set it (the tax title) aside.

For these reasons I concur in the decree.

Blanchard, J.,

dissents, holding the prescription of three years, invoked by defendant, bars the action.


author: Breaux, J.

text:
    No. 13,481.
    Mrs. Annie Reinerth and Husband vs. William Rhody.
    Syllabus.
    On Motion to Dismiss the Appeal.
    The value ,of the property as shown by the preponderance ot proof brought the case within the limits of the appellate of the Supreme Court jurisdiction.
    On the Merits.
    3 sale without a price fixed and determined by the parties, not binding as a sale, may yet be binding as a donation, if it does not contain anything contrary to public order and no injury results to others.

      ■.TRe act was not simulated, and, therefore, did not fall witlilu the grasp of Statute 5 of 1884. The contract was a gratuitous donation which the owner had the right to make if it did not trench on the right of the forced heir. The undue influence charged to have been exercised by the donee over the donor is not sustained by preponderance of testimony, and, therefore, the suit falls on that score also.
    APPEAL from the Sixteenth Judicial District Court, Parish of Tangipahoah — Reid, J.

      Clay Elliot for Plaintiff, Appellant.

      Benjamin Rice Forman and Stephen D. Ellis for Defendant, Appellee.
    On Motion to Dismiss the Appeal.
   The opinion of the court was delivered by

Breaux, J.

In this suit defendant and appellee moves to dismiss 'plaintiff’s appeal upon the ground that the matter in controversy does .not exceed two thousand dollars. He annexes, as part of the motion to dismiss, extracts from the assessment rolls of Tangipahoa Parish, and .an act of sale from the plaintiff to J. H. Wands, bearing the date of February, 1900. The extracts from the assessment rolls, and the act of sale, can not be considered as before us as part of the evidence to be •considered in deciding this motion, not having been offered1 in evidence in the court below. It is too well settled to admit of discussion, that no new evidence which should have been offered in a trial below will be considered on appeal.

Now, as relates to the value of the property, as shown by the evidence that is before us, we find that plaintiff and defendant questioned the witnesses at some length on the same. The views of the witnesses are conflicting, some testifying that it is worth considerably more than two thousand dollars and others that it is worth less. Defendant, by whom the motion to dismiss the appeal was filed, alleges in his answer that the property in contest is worth two thousand dollars. Three of the witnesses for plaintiff placed the value at more than that sum, while there is testimony of several witnesses that it is less. The preponderance of proof in matter of value of the property is decidedly in favor of plaintiff and appellant.

The property in contest, as relates to jurisdiction, being valued at more than two thousand dollars by a number of witnesses, the motion to dismiss is denied.

On ti-ie Merits.

This is a suit to set aside a conveyance by the late Sarah A. Nicol to William Rhody, the defendant, and for a judgment decreeing thait plaintiff is the only forced heir of the late Sarah A. Nicol. Plaintiff charges that the conveyance was a pure simulation; that the defendant resorted to undue influence and persuaded her grandmother to sign the act in question.

The testimony shows that the plaintiff’s father, the late Henry S. Nicol, was the only child of Sarah A. Nicol, and that plaintiff was his only child, and it follows the only grandchild of the late Sardh A. Nicol, and as such is entitled to all the property left by her grandmother at her death; that about two days previous to her death, Mrs. •Sarah A. Nicol signed a certain act or title passed before the clerk of court, conveying part of her real estate to the defendant, Rhody, who was an orphan who had been adopted by the sister of Sarah A. Nicol, and who, .after his adopted mother’s death, resided part of the time near the home of Mrs. Sarah A. Nicol. The officer who passed the act testified that Mrs. Nicol requested to be informed by him whether she should make a will or pass an act of sale, and he advised her to do the latter. The defendant had rendered many services to Mrs. Nicol. His residence was near, and his family had shown much attention .to the old lady, which old people nearly always appreciate and sometimes exaggerate. There is evidence before the court to prove that she was addicted to the use of strong drink, and that the defendant encouraged this weakness. This was met by evidence to prove the contrary, and, in addition, by evidence that the defendant never exercised such influence over the old lady as was charged.

Defendant pleads the general denial, and specially avers that he was legally adopted by the sister of the late Mrs. Sarah A. Nicol; that he was her business agent, and that during the last six months of her life she required constant attention, and that he or some member of his family was with her night and day to supply her wants, she being confined to her room and most of the time in bed; that his. ser vices thus rendered were well worth nine hundred and thirty-five 50-100 dollars, that is seventy-five dollars a year for eight years and six months, and for the last six months three hundred dollars; that ihe, .at her request, went on. the property secondly described in the act o'f conveyance, built an addition to the dwelling house, built out-houses, and cleared and fenced thirty-five acres of land, which are worth the sum of three hundred dollars. He avers that it was in consideration of the services mentioned that the conveyance was made to him.

Plaintiff attacks this conveyance on the ground that there can be no sale, no dation en paiement, nor a remunerative donation without a price fixed and determined by the parties, and that, in fact, the defendant never gave any consideration for the conveyance. The price set out in the deed of conveyance in question was one dollar, “and other valuable consideration paid in cash.” One of the witnesses to the act, who was well acquainted with Mrs. Nicol, testified that she was in the full enjoyment of her mental faculties, though weak and feeble, owing to sickness and old age; that she appeared fully to understand the nature of the act she was signing. The purchaser was present, and he (the witness) did not discover that he, the purchaser, exerted any intimidating influence over her. Mrs. Sarah A. Nicol died two or three days after the signing of the deed.

The judge of the lower court said, in a well considered opinion, that the evidence failed to show that fraud, violence or duress had been practiced on the plaintiff’s grandmother, but that the defendant’s alleged value of hi's services to the late Mrs. Nicol, as a consideration for the conveyance, were more than compensated by the pecuniary aid whidh defendant received from plailitifE’s grandmother. The court a qua arrived at the conclusion that the conveyance was intended as a donation, pure and simple, and pronounced judgment for the defendant.

Before entering directly upoh the discussion of the issues before us for decision, we take up the question of simulation with the view of determining, in a general way, when an act is a simulation and when it is not.

A simulated act of sale is defined as one without a price, yet setting forth that the vendee has paid or obligates himself to pay a price. It sets forth a price essential to a sale, while, in reality, there is no intention to hold the vendee to the payment of a price. It always implies fraud or misrepresentation.

The vendor, in the case of the sale here attacked, did not seek to conceal anything. She declared, at the time, that she desired to convey her property as she 'did, in order to place it in the name of the vendee, as she wished him to become its owner. There is nothing in the amount mentioned as the price stated showing an intention to conceal. One. dollar is not a consideration. True, she declared in the deed that she had received other valuable considerations. This, in ata. act of sale, was no consideration at all. It is evident that Mrs. Sarah A. Nicol imagined at the time, that she opght to convey this property to the defendant in . order to indemnify him for kind offices which he had performed in her behalf. It is evident that she over-estimated the 'value of the services he had rendered, and that, in view of amounts the defendant had previously received, he had been more than amply compensated therefor; but she manifestly was not of that way of thinking, and the fact that she declared in the deed that there was “other consideration/’ which . evidently referred to defendant’s conduct toward her, is not of such a character as to render the deed a fraudulent simulation. In order that an act of simulation may be annulled, it must be shown that a fraud on the" law was intended. Nothing of the sort appears here. The act was not a simulated sale. It was intended as a donation. Plaintiff contends that it can mot be considered as a donation, for the reason that a donation can not be made in the form of an onerous contract, citing Cole vs. Cole, 7th N. S., 414. In the cited case no sale had been made of property. The payment of notes, executed by one since deceased in favor of .the holder, was resisted on different grounds, chiefly, that they were executed without consideration. The- court decided that the notes were not given for value received, but that they were donations in disguise. The maker stated an amount of indebtedness, although he did not owe it, in order to enable the holder, after his death, to recover a large amount from his succession. The note was not authentic .evidence of indebtedness, and therefore could not be held binding- as evidencing a donation.

In the case in hand it is different; the act complies with all the forms necessary to an act of donation. The act only differs from an act of donation in that it sets out that vendor “sells, transfers and conveys.” If the word “donates” had been used instead of “sells,” the act would have been complete and legal beyond all question. The act may import a donation if there is no price. Such an act may be valid as a donation if it contains all the formality required in a donation. The law requires that in the matter of donations the act must be in authentic form. If it be in that form, and there be no price, it may yet be held valid as a donation when it) contains all the requisite formalities, and the donee at once goes into possession, though the act would be null as a sale. This view has been repeatedly expressed by the court. Rhodes vs. Rhodes, 10 La., 85; D’Orgenoy et al. vs. Droz, 13 La., 382.

“If there is no- just cause of declaring it null, it may exist in. another form as an exchange, a donation, or pledge.” Wolf vs. Wolf, 12 Ann., 529.

With regard to such an act, this court said, in D’Orgenoy vs. Droz, 13 La., 382, the contract is a donation improperly called a sale. It embraced all the required formalities, and we have viewed it as not in any sense a simulation. The owner having the right to make a donation, provided it does not trench upon the legitime, the forced heir is not, in law, to be heard to set aside an act on the ground that it purports on its face to be a remunerative, instead of a gratuitous donation. The donor has the right to make either, provided he violates no law. If the act, in general terms, sets out that there is a consideration, if there is none, it may yet be considered as a gratuitous donation if one has the right to donate at all. Treating the subject in an illustrative form: In an authentic deed A may donate property, for a consideration, to B. It does not concern 0, an heir, how much or how little it embraces .as consideration. It is A’s property, which he might donate gratuitously, and if he chooses to use the word onerous or remunerative, it would none the less be-binding, provided no third person is in any way prejudiced in his rights. The facts! prove that it was the intention of this vendor to donate this property to the defendant. It was- not a business transaction in which one, for an inconsiderable price, undertook to convey property, but was the act of one who intended to donate property, and to that end sent for the officer to draw up such an instrument as would enable her to effect her purpose.

It is also contended by plaintiff that tiróse-who are in imminent danger of death through sickness or' otherwise, can not make donations that are to have their effect in the donor’s lifetime, citing Domat’s Civil Law (Cushing’s Ed.) Vol. 2, p. 495, Sec. 3477. Those are the views of this commentator upon the subject. There is no such prohibition in our Code. “All persons have the capacity to contract, except those whose incapacity is especially declared by law.” C. C. 1782. The evidence does not disclose that she was not mentally able to donate the property and sign the deed. One of her neighbors, who signed the deed as a witness, testified that she conversed with him at the- time the deed was drawn as she usually did whenever he met her, and that nothing ■about her uttenances indicated any incapacity to contract. She was sick, it is true, but not confined to her bed.

With reference to the plaintiff’s charge that defendant gave intoxicating drinks to her grandmother, of which she avers she had become fond in her declining years, and the violence resorted to by defendant, we have arrived at the conclusion to which the judge of the District Court arrived, and which was expressed in the following words: '“Plaintiff alleges fraud, violence, duress, etc., practiced on the ancestor ■by the defendant. The evidence fails to support these grave charges.” We will not set forth all the proof on this point, which has brought us to ■this conclusion. Both plaintiff and defendant have chosen to make •charges, the one against the other. We ’¡have given an outline of the plaintiff’s charges. The defendant, on the other hand, charges that the granddaughter abandoned her grandmother while he remained near her and gave her needful care; that she at times visited the house of her grandmother, and accepted the hospitality of himself and his family, whose house was very near that of the grandmother, at the very time she iirges that his conduct toward the grandmother was unfeeling and harsh. We are not inclined to accept , either as correct. We do not think that there was any abandonment on the part of the plaintiff, who resided at some distance, nor do we think that the defendant was guilty ui the inhuman acts charged. Neither charge is sustained by the evidence. . , -

Plaintiff lays great stress on the legal effect of Act 5 of 1884. .We do not take it that the statute takes from orle the right to donate property when no one is thereby prejudiced, and the donor violates no law. The ■•statute does not enlarge the right of an heir to the legitime, nor does if provide that no donation shall be made by the owner. We have seen that the question of fraudulent simulation is not at issue. The judgment of the District Court reserves to the plaintiff any rights she may have to reduce the donation and any claim she may have for the indebtedness of the defendant.

For these reasons the judgment of the District Court is affirmed.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,556.
    Arthur B. Walker vs. Vicksburg, Shreveport & Pacific R. R. Co.
    Syllabus.
    .A person, or corporation, taking possession of a public street, and so obstructing it as to deprive an abutting proprietor of access, through such street, to hi£ property, may be condemned, at the suit of such proprietor, to remove the obstruction, and to respond in damages, actual and exemplary.
    APPEAL from the First Judicial District, • Parish of Caddc— Land, J.

      Frank J. Looney and Furman & Land for Plaintiff, Appellant.

      Wise & Herndon for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff, claiming to be the owner of property abutting on Lake Stréet, in the city of Shreveport, alleges that the defendant has-wantonly and maliciously obstructed said street, whereby he has been injured, and he prays for judgment ordering the removal of the obstruction and condemning the defendant in damages, actual and punitory. The answer is a general denial, with an averment that the defendant has fene"ed in its right of way but has invaded no public or private-property. The main question presented is, whether a certain strip of land belongs to defendant’s right of way, or is the extension of Lake street, on the west side of Common street.

There was a-verdict and judgment in the District Court in favor of the defendant, and. the plaintiff has appealed.

For the purposes of this opinion,'it will be assumed that Common', street runs due North and South, and that Lake street crosses it at right angles, and hence, runs East and West.

The evidence shows that Lake-street, on the East side of Common,, was opened prior to 1849 and was, and is, 66 feet wide, and that the city on that side of Common street is divided into blocks, whilst on the West side, what is called the “ten acre lot” subdivision still obtains. Opposite the point, on the East side of Common street, where Lake-street comes in, is the centre, or dividing line between the upper, or-Northern, and the lower, or Southern, halves of “Ten Acre Lot No. 6”, said line being a few feet to the South of the centre line iof Lake street, extended, and the two halves of said Ten Acre Lot 6, extending along Common street, to the North and south of said line, respectively.

Prior to June, 1849, so far as appears from the record, Lake street had not been opened West of Common street, and Ten Acre Lot 6, or that portion lying opposite the opening of said street into the East side of” Common street, was owned by Elisha LI. Jordan, who, upon June 4, 1849, by notarial act, sold to R. D. Sale, a parcel of ground described as follows, to-wit: ■ “A certain lot of ground in Ten Acre Lot, in Shreve- ■“ port, parish and state aforesaid, No. 6, fronting oh Common street, 60 “ feet, and running back 150 feet, on the lower corner of the upper half “ of said Ten Acre Lot, known as the property of the said Jordan, after allowing the width, to-wit, twenty-one feet threé inches, necessary for '“ Lake street to be continued through said Teh Acre Lot, being, and ly“ing, 011 said Common, as though said Lake street was continued as “ aforesaid.”

Upon March 30th, 1858, Sale conveyed this lot, by the same description, to Won. E. Murray, from whom it was acquired, in 1876, by ILovan and Looney, the latter being the present owner.

A few days after the sale thus made, to Murray, to-wit, April 3rd, 1858, R. D. Sale executed an act of conveyance, to the Vicksburg, Shreveport & Texas R. R. Co., of which the defendant is the successor, of a strip of land, measuring 65 feet on the North side of the line of the centre of its track, and 40 feet on the South side of said line, which, it seems to be conceded, was intended to refer to land owned by him in Ten Acre Lot 6, though, "'from the act offered in evidence, it is impossible to say where it is situated. It is shown, however, that the Railroad Company had, either at that time, laid its track, or that- it laid it shortly afterwards, across Ten Acre Lot 6, its direction (assuming Common street to run due North and South) being from South West, to North East, and that it reached Common street about opposite the point at which Lake street enters it, on its East side. As far as we can judge, from the information with which we have been furnished, this track lies mainly to the South of the centre line of Ten Acre Lot 6, though it may, and probably does, impinge upon said line at the intersection of Common street, but it nowhere appears to get entirely on the North side of that line.

This being the case, and it not being pretended that Sale ever owned any part of lot 6, South of the centre line, it follows that, in so far as his deed to the company purported to convey a strip 40 feet wide on the South side of its track, the company took nothing.

And, inasmuch as he had, four days before the execution of the conveyance to the company, sold to Murray all thát he had ever acquired on the North side of the centre line of lot 6, it equally follows that, in so far as his deed to the company purported to convéy a strip 65 feet wide on the North side of its track, the company took nothing.

It further appears that, until within the past year or two, the extension of Lake street, West of Common, as dedicated to public use by Jordan, in 1849, has been practically and universally recognized as embracing the strip of land adjacent to, and to the North of, the centre line of Ten Acre Lot 6, save perhaps where that line is impinged on by the defendant’s track. A somewhat greater width has, however been accorded to said strip ijhan.that spoken of in the dedication, by reason of the fact that there appears to be some twenty feet or more of frontage on Common street, between the point in question and the next street to-the North (Tally street), than is called for by the titles of the front proprietors.

The strip dedicated by Jordan, it will be observed, extended back 150-feet from Common street, that being the depth of the lot sold by him to Sale; and the owners of adjacent property have, presumably, regulated their conduct and dealings with reference to that fact. The plaintiff, who is an emancipated minor, owns two'lots, originally acquired by his mother in 1869 and 1871, respectively,.which are situated at the Western end of said dedicated strip, which has always afforded the owners of said lots ingress and egress to the same, and to the residence and place of business thereon situated.

It further appears that the defendant, at one time,- started to lay another track, parallel with, and just upon the North side of, its present track, in the disputed territory, but discontinued the work, and demolished what had been done, in consequence of notice to that effect from the city authorities. During the summer of 1899, however, it obstructed the entrance to Lake street, West, by leaving a car upon the track, and, thereafter, early in October, it caused a fence to be built, running North and South, at a point about 150 feet West from Common street, entirely across the strip, 21 feet, three inches wide, lying adjacent to the centre line of Ten Acre Lot 6, and a few feet into the territory beyond, to the North. This fence is within seventeen inches of the line of plaintiffs property, and completely cuts off access thereto from Lake street, if Lake street is properly located next to the centre line of Ten Acre Lot 6. The theory upon which this is done appears to be that the strip dedicated by Jordan, as the extension of Lake street, does not lie adjacent to the centre line of Ten Acre Lot 6, but lies North of that line, and, by reason of the language used in the act of dedication,, is to be found by extending Westward the Northern line of Lake street, as it already existed on the Eastern side of Common. If this theory were adopted, there is, still, as far as we can discover, no excuse for the defendant’s fence, as it stands, since it projects considerably within the limit of 21 feet, 3 inches from the northern line of Lake street, as thus extended. But the theory is without support. As. we have seen, the defendant’s author Sale, acquired absolutely no land whatever to the North side of the centre line of Ten Acre Lot 6, for the reason that he had previously sold to Murray all the property in said lot that he owned North of that line, by the identical description by which he acquired it, and if there is a surplus in the frontage between said line and Tally street, to the North, Sale’s first vendee, to whom he conveyed all of his rights, would be the beheficiary, rather than the defendant, who became his vendee when he had nothing to sell.

Aside from this, the language of the original dedication is plain enough, and the testimony of the estimable gentlemen, civil engineers and surveyors, summoned as witnesses by the one side or other, giving their views as to its proper interpretation, has not served to make it any less so.

Jordan, it* is fair to presume, knew that Lake street, East of Common, was 66 feet wide, and he was at liberty to have extended it through his property, on the West side of Common street, ' to that width, and to have made the lines prolongations of the lines already established on the East side of Common street, or he could have dedicated a strip less than 66 feet wide for the extension, and have had one of the lines of Lake street, East, or neither of them, to so correspond, as he thought proper. He seems, naturally enough, to have made the dedication with reference to the measurements, the lines of division, and the convenient disposition, of his own property; and he sold a lot “fronting on Common street, 60 “ feet, and running back ISO feet, on the lower corner of the upper "“half of said ten acre lot after allowing the width, to-wit: twenty-“one feet, three inches, necessary for Lake street to be continued “ through said Ten Acre Lot, being and lying' on Common street, as though said Lake street was continued as aforesaid.”

The last few words, beginning with “being and lying”, seem to be unnecessary and they cannot, by any possibility, be held to alter the meaning of the preceding language, which specifically fixes the location of the strip dedicated. And that they were not so intended seems evident from the word “aforesaid”, which refers the clause, of which it forms a part, back to the disposition already made — which disposition ’provides for the continuation of Lake street, by means of the dedication ■of a strip of land allowed, or taken, from "the lower corner of the upper dmlf, ' of ten acre lot 6, after allowing the width bo-wit, twenty-one feet three inches, necessary for Lahe street to he continued through said, Ten Acre Lot.”

It has been suggested, in this court, by defendant’s counsel, that the case should be remanded in order that the City of Shreveport and some adjacent proprietors should be made parties, and, as the matter then presented itself to thel.court, the suggestion seemed a good one. Further consideration has, however, led to the conclusion that its adoption would operate an injustice. The plaintiff brought a suit for damages, alleging that the defendant had fenced, and thereby obstructed, a public thoroughfare, to his detriment and damage. The defendant answered •by claiming that the property fenced belonged to if, as its right of way, and, inferentially, that it had been fenced by the authority of the City of Shreveport. -But, no attempt was made, by the defendant, through tire court, to bring the City of Shreveport, or any one else, into the case, and no suggestion appears to have been made that the plaintiff ought to make other parties. The case was, therefore^ tried between the plaintiff and defendant, and upon the issues, as made by their pleadings. For ■.this court, now, to hold that .the plaintiff must go back and make the City of Shreveport and otirer persons parties to the suit, would be to hold that he has no right'to'an action in damages until, and unless, . be obtains a judgment, contradictorily ¡with such persons, in an action of • boundary, and this, notwithstanding the absence of any plea, exception, or defence, other than the issue of fact presented by the answer. And we are not prepared to adopt that view. 'As has already been stated, the property in question was dedicated to public use in terms which could leave no reasonable doubt as to its identity. In -addition to that, we understand from the evidence, taken in connection with the fact that there is no dispute upon the point, that the property so dedicated was used as a public thoroughfare for nearly fifty years, and until the defendant undertook recently to assert its present .claims. Under these circumstances, we can discover no better reason for requiring the plaintiff to resort to an action of boundary as a preliminary to the present suit, than if the defendant had injured him by obstructing any other street in Shreveport. The course pursued by the defendant was imprudent in the extreme. The courts were open to it for the assertion of its rights, and, before taking possession of property which had been dedicated to the public, and which, with its acquiescence during forty years, had been used as, and held to be, public property, it should have resorted to the courts. It must now accept the consequences of its failure to do so.

The plaintiff claims damages for loss of profits in the business conducted on his property, but the evidence shows that the business is not his. He makes a claim for loss resulting from depreciation in the rental valhe of the property, but the property was not rented, and it ■does not appear that the plaintiff had any intention of offering it for rent. It was, and is, occupied by his father, who keeps a saloon and boarding house, and who has given some testimony as to the loss sustained by him in that business. He further testifies, however, that his son, the plaintiff, lives with him, and that prior to the shutting in of the premises, by the defendant, he had been in the habit of furnishing his son with four of five dollars a- week, besides supplying his wants in other ways, 'and that, since then, he has not been able to furnish so much.

The testimony as to the specific loss by the plaintiff, is, therefore rather vague. It is shown conclusively, however, that the obstruction •of the street by the car, and by the fence erected by the defendant, has been generally prejudical to the property, and is an invasion of plaintiff’s rights. And it is1 also-shown that the defendant acted without reasonable ground for believing that it was entitled to pursue the summary course adopted by it, without the pressure of necessity of .any kind, and, so far as appears from the record, without legal advice.

Under these circumstances, we are of opinion that damages, both actual and exemplary, should be awarded, and we fix the amount at $150.- Nichol vs. Railroad Company, 44 Ann. 816.

It is therefore ordered, adjudged, and decreed, that the verdict and .judgment appealed from be annulled, avoided and reversed, and that there now he judgment in favor of the plaintiff, Arthur B. Walker, and against the defendant, the Vicksurg, Shreveport & Pacific Railroad Company, in the sum of $150.

It is further ordered, adjudged, and decreed, that said defendant be condemned to remove the fence erected by it on the North side of the centre line dividing’ the North, from the South, half of Ten Acre Lot 6, and within 150 feet West of Common street, in the City of Shreveport, which land, to a width of, at least, twenty-one feet three inches, North of said line and running 150 feet West from Common street, and parallel fo Lake street, East of said Common street, is recognized and held to be a public thoroughfare, the continuation of said Lake street, in said City of Shreveport. It is further ordered that the defendant pay all costs.

Blanchard, J., taxes no part in this decision.


author: Nicholls, C. J. Breaux, J.

text:
    No. 13,573.
    George Gowland vs. City of New Orleans.
    Syllabus.
    Tlie State caused certain property to be adjudicated to itself at a sale, under assessments made in the name of Francois Snaer and Victoria Snaer. It then, as owner, sold the property under Act 82 of 1884, to one Jacobs, who-received a deed and recorded it. While so holding the property, the city proceeded to the enforcement of the city taxes under the same assessments, proceeding in the matter of the sale contradictorily with Jacobs by giving him notice of sale. The original owners or their vendee sought to attack the city’s title without, as ancillary thereto, attacking the State’s title.

      Held — 1st. The State’s title not being contested, the latter title under the city can not be attacked. (West vs. Negrotto, 48th Ann., 922.)
    2nd. The notice of sale was properly given to Jacobs. (Adolphe vs. Richardson, 52 Ann., 115G.)
    3rd. The original owners are not in position to question Jacobs’ title from the State by reason of his not having — before receiving a deed — paid all the city taxes then due; such prior payment of city taxes is not a condition precedent to Jacobs’ acquiring title under the adjudication to him. (West vs. Negrotto, 52 Ann., 38T.).
    4th. Mortgages securing taxes prior to 1880 do not prescribe by the prescription of three years.
    5th. The date of commencement for the computation of the prescription of taxes: is from the 31st of December of the year for which they were assessed.
    On Rehearing.
    The laws looked to the future and not to past liens, privileges and mortgages* ' which remained unchanged as to the latter (the mortgages) until the Statute of 1880, which provided for the limitation to three years of the mortgages attaching to taxes, was enacted.

      APPEAL from the Oivil 'District Court, Parish of Orleans— Theard, J.

      Kernan <& Gowland for Plaintiff, Appellee.

      James J. McLaughlin, Assistant Oity Attorney, and Samuel L. Gilmore, City Attorney, for Defendant, Appellant.
    On the application for rehearing by Breaux, J.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff alleged himself to be the owner of certain described property in the Oity of New Orleans. That the city had recorded or charged up against said property certain taxes, tax liens, privileges, mortgages, and adjudications, for the years 1877 to 1879, inclusive, all of which were illegal, null and void for the following reasons, to-wit:

Eirst — That no notice was ever served on petitioner, or his authors,, of the intended sale of this property for taxes.

Second — That the taxes, adjudications and assessments, whereon they were based, are made in the names of persons not the owner.

Third — That all the taxes, tax liens, privileges and mortgages, for said years were prescribed by two, three, five and ten years.

He prayed that he have judgment annulling and cancelling the. said taxes, liens, privileges, mortgages and adjudications, and for costs and general relief.

The city answered, pleading the general issue. The case was submitted to the District Court on the following note of evidence and statement of facts.

“'It is admitted that the Oity of New Orleans adjudicated the property described in the petition as lots Nos. 15, 16 and 17, of square No. 902, to herself, by three separate sales made on August 14th, 1893, and one on June 19th, 1893, respectively, and that all of these adjudications, were duly registered in the conveyance office of the Parish of Orleans; that the said sales were made for the faxes of 1890 to 1897, in the-names of Francois Snaer and Victoria Snaer, respectively; that the-city bases her titles to said property on notices served on one Louis O. Jacobs, to whom the property, lots Nos. 15 and 16, was assessed at the time the notice was served, and at the time the said sales were made;. that the said Louis C. Jacobs acquired a deed from the tax collector under the Act 82 of 1884.

It is admitted that the plaintiff acquired the property in controversy by purchase from W. H. Howcott, as per act under private signature, filed herein, and marked “D,” and Howcott acquired from heirs of Francois Snaer (whose succession has never been opened), after the ■sales to city and Jacobs.

It is admitted that the tax research certificates, filed herein and marked “E” and “F” and “G,” correctly show the assessments of the properties in controversy, and their condition on the tax rolls. Plaintiff •offers conveyance certificates marked “H.”

The said admission, by plaintiff, of the sales and adjudications to the Gity of New Orleans, is made, without, in any manner) admitting their validity or legality, but on the contrary denying their validity and legality.

It is admitted that at the time the city served her notices of sale on Louis C. Jacobs, his deed was extant upon the records of the conveyance office of the Parish of Orleans.

It is admitted that the late Francois Snaer acquired this property in 1837.

It is admitted that Francois Snaer died in 1880; that the service of the notice of the city, on which the sale of lot No. 15 of square No. '902 is based, was made in the manner set forth on the copy from the stub of the notice book of the Oity of New Orleans, herein filed, and marked “A.”

The District Court rendered judgment in favor of the plaintiff, annulling and canceling the adjudications to said city, being sales Nos. 1610, 1611 and 1553, made, respectively, on August 14th, 1893, and June 19th, 1893, of lots Nos. 15, 16 and 17, in square No. 902, bounded by Prieur, Johnson, Lapeyrouse and Onzaga streets, in the Third District, and further ordering the cancellation of the inscriptions of said adjudications and of all tax liens, privileges and mortgages for city taxes, for the years 1879 to 1897, both inclusive, bearing upon said lots and upon lot No. 16, in square No. 113, bounded by St. Olaude, Rampart, St. Philip and Dumaine streets, in the Second District of this •city; costs of said suit to be paid by defendant.

The city appealed.

Opinion.

The proceedings in. the matter of the adjudication of the lots Nos.. 15, 16 and 17, of square No. 902, to the State of Louisiana, in enforcement of its taxes, are not before the court, nor are they attacked by the-plaintiff.

The adjudications which are attacked are (1st) that of the State,, made as owner to one Louis O. Jacobs, under Act 82 of 1884, and (2nd) those made to the city by itself in enforcement of taxes, while the title-stood on the records as the property of Louis O. Jacobs, under his. purchase from the State, under the act pf 1884.

It may be that the title of the State', under the adjudications made to-itself for taxes, were defective, but they are not contested by the pleadings, and we cannot, in this proceeding, ignore them or declare them, null. We have to take the case as we find it.

If we assume that the title of the State, under the adjudications to-itself, were valid, the State was authorized to sell the property as any other owner was, if the tax collector had authority to sell it in its. behalf. The tax collector did have the authority to sell it under Act 82 of 1884, and under the provisions of that act -adjudicated it to-Jacobs, giving him a deed which was duly recorded.

It is not claimed that Jacobs did not comply with his bid, by paying all the State taxes then upon the property, but it is asserted that he-did not pay the city taxes then due upon the property; that his doing so was a condition precedent, under the act of 1884, to his acquiring any title to the property, or being entitled to a deed from the tax collector, and that, therefore, the city was not justified in assuming, at any time, that he was the owner or warranted in taking any proceeding in enforcement of its taxes contradictorily with him.

If Jacobs, having become the adjudicatee of the property under a-sale by the State under the terms and conditions of Act No. 82, of 1884, had failed to pay all the State taxes then due upon it, the State would have been entitled to ignore the adjudication and proceed to sell the property, de novo, notwithstanding the fact that the tax collector might have given him a deed. This would have been permissible under the decisions of this court in Martinez vs. State Tax Collector, 42 Ann., 677, and Renick vs. Long, 47th Ann., 914.

We did not declare in those cases that payment of the city taxes, with which the property was affected at the time of its adjudication at a sale for State taxes, under Act 82 of 1884, was a condition precedent to the vesting of a title in the adjudicatee at such a sale, and that the failure so to pay would strike with nullity any .deed given to him by the tax collector.

The State authorities were not charged with the duty of collecting the city taxes. These remained upon the property,_ subject to payment ,by the adjudicatee, under the personal obligation assumed by him so to •do (West vs. Negrotto, 52 Ann., 390). If the property passed from the •owners of the property owing the tax to the State, in enforcement of .State taxes, the owners so divested of title were in no position to set up as against the acquisition by a third person of a legal title to the .same from the State, that this latter purchaser had not paid the city taxes, then due on the property. If the property had passed from them to the State, it was no concern of theirs, whether, for the purpose of acquiring title, the adjudicatee paid the city taxes immediately or not. That was a matter between the city and the adjudicatee.

The original owners could not have brought a petitory action against the tax adjudicatee, under such circumstances the deed to the adjudicatee remaining-unattached (West vs. Negrotto, 48 Ann., 926).

The city finding that the property had passed from the former owner to the State, and from the State to a purchaser, who had, as part of the purchase price, assumed to pay all the city taxes upon it, had the right to proceed against the property, and, contradictorily with this purchaser, to enforce its taxes.

It was not compelled to test the validity of the purchaser’s title, as derived from the State, before doing so. The simple fact itself that it may have proceeded contradictorily with this purchaser would not make an adjudication, based upon such proceedings, absolutely null and void. It might well be that the title of an adjudicatee, under proceedings so conducted, might be wholly defective, because the State itself had acquired no valid title as against the original owners under its own tax proceedings, and, having none, could confer none upon the party who purchased from it, under the act of 1884, and fthat this same defect of title would follow the title conveyed, or attempted to be conveyed by the subsequent tax proceedings taken out by the city, but there is a difference between a case where the defect in the title is traced back to the State’s proceedings, and the State’s title is attacked and the attack is carried forward against subsequent transferees, and a ■case where the attack is made to rest primarily and exclusively upon the city proceedings, leaving the State’s proceedings, the State’s own title, and that transferred by her, unattacked.

The plaintiff points ont to us the assessments which had been made on the property, under which assessments the State had proceeded to enforce its taxes, and they tell us that those assessments were radically null, and no title could possibly pass to the State under them, and we should ignore them, but we do not feel justified in doing so. The assessments made at the time are not before us; the adjudications made to the State are not before us. We know nothing- of the circumstances of the adjudications, some one or more may have been legal and carried the title. We do not know at what time, in 1880, Francois Snaer died. Victoria Snaer, in whose name the assessments were made for a time, was, we should judge, the widow in community of Francois Snaer, and, if so, an assessment in her name might carry her interest at least in the property.

We are not satisfied, under the pleadings and evidence in this case, that the judgment should stand as it is in respect to lots Nos. 15, 16 and 17, in square No. 902.

Appellant is satisfied with the judgment as to lot No. 16, in square No. 113, except that he contends that the cancellation of the tax privileges and mortgages thereon should not he decreed for taxes after 1895. In calculating the prescription of three years as applying- to the cancellation of the inscription of tax liens and privileges, the 31st day of December of the year in which the taxes were assessed, is the date from which the prescription begins to run; the prescription being interrupted by any suit which prevents the collection of the taxes, and the time of such interruption being excluded in making the computation of the three years.

The present suit was instituted on the 21st day of December, 1899. The liens, privileges and mortgages securing the payment of the taxes, after the year 1895,, on lot 16, of square No, 113, are not prescribed.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended, by decreeing the cancellation of the inscription of the city taxes on lot 16, of square No. 113, for the years 1879 to 1895, both inclusive, instead of for the years 1879 to 1897, both inclusive, and to that extent, as amended, the judgment he affirmed, but that otherwise the judgment appealed from be and the same is hereby annulled, avoided and reversed, and plaintiff’s demand be and the same is hereby dismissed as of non-suit. Costs of appeal to-be borne by the appellees.

On Application for Rehearing.

Breaux, J.

Plaintiff urges that his predecessors in title were entitled to a notice of the intended sale for taxes.

In the alternative, that the court should order the cancellation of the liens, privileges and mortgages, for the taxes of 1877 and 1878.

In words different from those used in the original opinion we reiterate; ordinarily the assessor need not look beyond the recorded title, and we cite, in support of the opinion, Adolph vs. Richardson, 52nd Ann., 1156; Reinach & Oteri vs. Improvement Company, 50th Ann., 497, and Augusti vs. Bank, 46th Ann., 529.

This view is not controverted by plaintiff, who, however, contends, on another ground, viz: That Jacobs, the adjudicatee and adverse claimant, can not hold, because he did not pay, as an adjudicatee, all the-taxes due on the property; that his sale was void to the knowledge of the city, and that the city could not acquire title on an asessment so absolutely void.

The fact is that Jacobs did pay all the taxes 'due to the State.

In our opinion we held that this was sufficient, as relates to that one issue only, to give him title as against the State and that as the city’s interest was not affected by this sale, the sale was not void even if he had failed to pay the taxes due to the city, and that while it may be void on other grounds, the court, with the record made as it is, declined to pass upon other issues, as relates to the assessment and sale. This brings us to the second ground growing out of the application to amend the decree (and that without granting a rehearing), by ordering the cancellation of the liens and mortgages of 1877 and 1878. By the effect of section 20 of the city charter of 1870, prescription did not run against taxes .and the liens and mortgages by which they were secured.

This statute was in full force and effect until the statute of 1877 was enacted. By this last statute the prescription of three years was made to apply to privileges and pledge, but not to mortgage.

In State ex rel. Jackson vs. Recorder, 34 Ann., 178, the court said (by Act 68 of 1870, city charter) that taxes were secured by mortgages as well as by privilege and pledge; that while the statute of 1877, No. 96, subjected privilege and pledge to the prescription of three years, it was silent as to mortgages and that mortgages still remained imprescriptible.

It was only in -1880 that the Legislature provided that all tax mortgages and tax privileges were subject to the prescriptions of three, years. As legislation regarding taxes applies only to the future it follows that the taxes for 1877 and 1878, as relates to the mortgages by which they are secured, still remain imprescriptible. We are constrained to adhere to Reed vs. Creditors, 39th Ann., 115, and Jackson vs. Recorder, 34th Ann., 178, although they are not in accord with a decision of a more recent date to which counsel invites our attention.. These above cited decisions are nearly contemporaneous with the dates of the statute in question, and, besides, accord with our view of the question. We, therefore, decline to amend our decree and order the encumbrance in question, to be cancelled.

Rehearing refused.


text:
    No. 13,560.
    State of Louisiana vs. Anderson Cox.
    Syllabus.
    On Motion to Dismiss.the Appeal.
    The Appeal being from a judgment to compel the payment oí a fine, including therein the tax for the non-payment of which the fine was imposed, the Supreme Court has jurisdiction and the motion is denied.
    On the Merits.
    By authority conferred on the Police Jury by the Constitution, the District Court has power to pronounce judgment compelling the per capita, tax debtor to pay a fine in case he refuses or neglects to pay the tax, or instead, to work on the public road.
    APPEAL from the Second Judicial District Court, Parish of Bossier — Wathins, J.

      Walter Guión-, Attorney General, and A. J. Murff, District Attorney, for Plaintiff, Appellee.

      Thigpen & Foster and Smith & Webb for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Defendant appeals from sentence and judgment of the District Court condemning him to pay a fine of two and 50-100 dollars, and the costs of prosecution, and in default of the payment of the fine and costs of the prosecution, condemning him to work on the public roads of the Parish of Bossier under the superintendent of the public roads of Bossier Parish, two days for each dollar of fine and costs.

The defendant was indicted for willfully refusing to pay his per capita road tax of one dollar on or before the first day of January, 1899.

On the seventh day of July, 1898, the Police Jury of the Parish adopted an ordinance setting out that if any person falling within the terms of the ordinance “shall fail or refuse to pay this tax on or before the first day of January of each year, the failure or refusal shall be declared a misdemeanor and he shall be subject to indictment by the grand jury, or to prosecution by bill of information, and shall be prosecuted before the District Court, and be fined in a sum of not' less than two 50-100 dollars, or more than five dollars, and all costs of the prosecution, and in default of payment, he shall be sentenced to work upon the public roads of the Parish under the superintendent of the public roads for the period of two days for every dollar of fine and costs.”

The ordinance was adopted under the article of the Constitution, No. 291; “To carry into effect the provisions of this article, the police jury may enact such ordinances of a civil nature as may be necessary to enforce the property and license tax and of a criminal nature to enforce the per capita tax.”

The defendant moved to quash the indictment on the ground that the parish “is without authority to prosecute in the name of the State, for the reason that the ordinance in question is a parochial regulation; that the bill of indictment does not aver that the defendant was notified that .his road tax was due prior to the filing of the bill of indictment, or that an assessment had been made, as required, and the ordinance imposing the tax had not been properly signed and promulgated; that the Police Jury did' not divide the parish into road districts as required subsequent to adoption of the Constitution of 1898, Article 291; that the Police Jury is without authority to create a misdemeanor to subject one1 for its violation to indictment by a Grand Jury, and that the punishment which is imposed for the violation of the ordinance is in violation of Article 12 of the Constitution of 1898 in that it imposes a fine for the non-payment of a tax, and illegal, in that it is in violation of a statute Abolishing imprisonment for debt”. The defendant filed a motion in arrest of judgment, setting forth the grounds already detailed, and adding others in support of the defense. The motion to quash, and the motion to arrest, were overruled. No bill of exceptions was reserved to the court’s order overruling these motions.

On Motion to Dismiss the Appeal.

The State moves to dismiss the appeal filed by defendant, on the ¡grounds, that no question of the constitutionality or legality of any tax has been raised, nor any question as to the right of a municipal corporation to impose any fine, forfeiture, or penalty, nor any law of this State, ■declared unconstitutional, nor fine exceeding three hundred dollars imposed, nor imprisonment exceeding six months.

In our view, the purpose of the proceeding is to collect a tax. The penalty is an incident arising from the failure or refusal to pay. It is inseparably connected with the tax. An appeal from a sentence based •on the refusal, or neglect to pay the per capita tax would bring up the penalty as a part of the issue. On the other hand, an appeal from the .sentence imposing a fine alone, brings up the question of the legality, fuel non, of the tax. The tax is merged into the fine. The defendant is no longer called upon to pay the tax, but to pay the fine which covers, or rather includes the tax. There could be no fine possible unless it included the tax. If the defendant were to appeal from the original claim for a per capita tax, be might be met with the plea that he has no basis .and is covered by the sentence and judgment imposing the penalty, upon which to rest his appeal, for the claim for a tax has passed into

On Motion to Quash and in Arrest of Judgment.

We have already noted that the motion to quash and the motion in Arrest were both overrruled, and that no bill of exceptions was reserved.

It is urged in behalf of the prosecution that, in consequence, there .are no legal propositions before the court as none are 'brought by bill of •exceptions. A motion in arrest of judgment can only be granted because of an error patent on the face of the record. A bill of exceptions is not indispensible in such a case. It, the bill of exceptions, is more particularly necessary when the question is one of law blended with one of fact, and it becomes important to present both in order that the court may determine the issue.

Here the question is one exclusively of law and none will be considered which is at all confounded with facts. The issues are completely before the court as set forth by these motions and they are presented by the court’s overruling them.

On the Merits.

The defendant urges in his defense, in the first place, that the parish is without authority to prosecute in the name of the State. This would be quite true if the proceedings were civil. The Oonstitution has spoken upon this subject in words not to be misunderstood. The words of the organic law are mandatory. They must be interpreted as written when the meaning is plain. The failure or neglect to pay this tax is made, in its nature, criminal. No previous special notice is required in a criminal proceeding, or proceeding in its nature criminal, such as is required in a civil action. This is not a civil action to collect a road tax, but a criminal proceeding to compel the defendant to pay a fine, or work on the road, should the defendant be found guilty of failure, or refusal to pay the tax.

In reference to the notice to the tax-payer, as relates to this tax, obviously it was the intention of the iconstitutional convention to give to the Police Jury considerable latitude.

We do not consider in a strict sense that- the question of method adopted to notify the pei< capita tax debtor is before us for adjudication at this time. We therefore only hold that in view of the power conferred on the Police Jury, it is not essential for the indictment or information to contain a recital of the steps followed in giving notice to the tax-payer of the per capita road tax. Defendant specially urges that the impression of a penalty for the non-payment of a tax without notice of delinquency being given, is not due process of law.

That is quite true in a civil action for the collection of taxes, but here, the constitution has taken the steps for the recovery of this tax out of the category of civil proceedings, and made it in its nature, criminal. From that point of view the citation, summons, and ordinary service of notice are not essential in order that the proceedings may be considered due process of law.

We understand that a rule applying to all alike is followed in order to collect the tax, and. there is nothing of record showing that the due course of law in matters in their nature criminal had not been followed..

Another’complaint is that the Police Jury has not divided the parish into road districts under the Constitution of 1898, and that there is no evidence showing- proper promulgation of the ordinance. We judge from the brief of the defendant’s counsel that this position is abandoned, for, from it, we quote: “Admitted that the ordinance in the transcript was duly, passed by the .Police Jury of Bossier Parish, in regular session convened on July 5th, 1898, and was duly published on July 14th, 1898, in the Bossier Banner, the official journal of the Police Jury, he appeals and relies for relief upon the ground that the bill of indictment filed and the judgment thereon was illegal and unconstitutional, as set forth in his motion to quash and in arrest of judgment.”

Moreover, the objection on the score before stated would fall even if it liad not been waived, for the question being one of law and facts, is not presented for our consideration by recitals of points of law and facts, as required by a bill of exceptions.

The next ground in the order of defense is that the Police Jury has no power to create a misdemeanor and subject one to criminal prosecution. The word “misdemeanor”, is written in the ordinance. We do not think that its use in a Police Jury ordinance of this nature has the effect of vitiating the ordinance.

It must be borne in mind that the power conferred on this body by the Constitution is entirely exceptional and applies to public -roads placed under its special supervision and control. Unquestionably in •exerting that power, it may pass ordina¡nces to compel payment of this tax or incur a penalty in the manner which, as we understand, has been followed here. The ordinance is complete in itself, without reference to the word disdemeanor. If it should be entirely eliminated, there yet remains an ordinance having full force and effect.

The public roads always excite attention. They are the property of the sovereign authority; the general public. There are some who point to the degree of perfection to which they have been carried and are pleased to recall that it generally corresponds to the degree of civilizalion of the country in which they are situated. Although this be true, it requires prudent direction on the part of those in charge. The rule necessarily must fall justly, and not harshly, on all alike, the poor and the rich. Borrowing- the words of an ancient bard on'the subject: aequo pulsat pede pauperum tabernas; regumque turres. Each should feel that the community is interested in having good roads and that in this general improvement all should be concerned, and that to it every one is called upon to contribute.

Eor the reasons given above it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

Blanchard, J. concurs in the decree.