author: Breaux, J. Watkins, J.

text:
    No. 12,490.
    E. Cucullu, Administrator Succession of F. Lacroix, vs. Brakenridge Lumber Company, Limited, et als.
    It was irregular and unauthorized to assess property in 1887 in the name of a dead man whose succession was opened in 1876, and to undertake to sell the property in his name to the State, without notice to the legal representative of his succession.
    A deed prima facie valid relates to the conduct of the sale and not to antecedent omissions rendering the sale void. 9SU. S. 522.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      F. L. Richardson for Plaintiff, Appellee.

      Louque & Pomes for Defendants, Appellants.

      Branch K. Miller and James Wilkinson for Citizens Bank, Inter-venor, Appellee.

      F. C. Zaeharie for Tax Collector, Appellant.

      Argued and submitted June 10, 1897.
    Opinion handed down June 22, 1897.
    Judgment of this court modified and rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Breaux, J.

The judgment rendered in this case was avoided on appeal. The case was remanded and reinstated to enable the District Court to render another judgment. Cucullu vs. Brakenridge Lumber Company, 48 An. 677.

After the case had been remanded it was reopened, retried and argued.

A judgment was entered in plaintiff’s favor in accordance with his prayer, and on the reconventional demand judgment was rendered for seventeen hundred and thirty-five dollars and sixty-seven cents, against the plaintiff, to be paid as a condition precedent to a writ of possession issuing.

The taxpayer died in 1876, and his succession was opened in 1876.

The property was adjudicated to the State for the unpaid taxes of 1887, assessed in the name of the tax debtor who was dead since 1876.

All the statutes regarding assessments prior to 1890, without any restriction as relates to ownership of the property whatever, contain direction equivalent in terms to an order, to assess property in the name of the owner.

The tax .debtor was no longer the owner after his death. In construing the statutes, this court held that the assessment in the name of a dead man was valid, if it appeared that the land was carried over on the assessment rolls without want of reasonable diligence on the part of the assessing officer. This conclusion was reached under the several healing and curative statutes adopted to cure the defects in the tax titles prior to the date of the present Constitution.

It does not suggest itself that there is any reason to be less stringent in question of tax title arising after the year 1879.

Mr. Burroughs (p. 204) thus states the rule, that as an original proposition has received universal approval.

“ Where the owner dies and a number of persons are entitled as heirs to the land, it is not necessary to list it in the name of all the parties entitled, but a general designation of the parties is sufficient, as widow and heirs of Z. S. Wheeler.”

We have not found a decision or any views in any of the textbooks supporting the proposition that property, in the absence of •curative statute or other statute authorizing such assessments, may be properly assessed after a great length of time in the name of one who no longer exists.

In the case in hand there can be no good reason for continuing to assess the property as it was assessed.

The following were some of the duties of the assessor under the statute at the date the assessment was made, and they are, in the main, the duties of that officer at this time: After the 1st of January of each year; to diligently examine the records in the offices of mortgages and conveyances and abstract of land entries; compare the names of the parties assessed and the description of the property; also to make faithful inquiry and investigation, to ascertain what taxable property in his district or parish belongs to residents and to absent owners and to unknown owners, and make correct designated list by the section of the statute.

Had the officer performed his duty each year as required he would not have committed the error, each year, of assessing the property in the name of one who had died many years prior to the date of the assessment.

Moreover, it was, by statute, made the duty of the assessor, in person or by duly authorized deputy, to “ visit the domicile, residence or office of each person, company, firm, corporation, bank, exchange or association of two or more individuals in making assessments.”

It becomes manifest that these duties must have been greatly neglected, and the result was that no such transfer of the property was effected as the law relative to taxation contemplated.

The owner could not be divested of his property upon a mere paper assessment. , •

Influenced as we think by the decisionsjthat had been rendered upon the subject, the Legislature in 1890, in order to put an end to an undesirable condition, enacted that any assessment made in the name of a party deceased shall be good and valid throughout the State, unless notification in writing of the death and of the opening •©el non of the succession has been given. Sec. 25 of 1890.

The lawmaking power, in the exercise of its authority, chose tO’ relieve the assessor from]the responsibility, if the assessment was made in the name of one deceased, and has placed it upon the heirs or those interested.

it does not change the fact that prior to the adoption of this statute the responsibility of assessing the property in this respect was entirely with the assessor, upon whom was imposed the duty of' making personal inquiry, as we have before stated.

If it was desirable not to assess the property belonging to one who-no longer existed, as it unquestionably was, the duty devolved upon the assessor to make needful inquiries and a proper assessment.

In a number of cases this court has, in applying revenue laws subsequent to 1879 and prior to 1890, held that the continued assessment of property in the name of one who no longer existed was not the assessment required. Edwards vs. Fairex, 47 An. 171; Sewell vs. Watson, 31 An. 591; Stafford vs. Twitchell, 53 An. 520; Montgomery vs. Land and Lumber Co., 46 An. 409; Keene vs. Collins, 40 An. 453.

In other States we find:

An assessment of land in the name of a deceased person, made prior to the amendment of March 22, 1880, is void.” Pearson vs. Creed, 69 Cal., p. 539.

The same rule was announced in Morrison vs. McLaughlin, 88 North Carolina, p. 253.

The assessment in a similar case was held void in Alabama. DePoister vs. Gilmer, 82 Ala. 435; also in Florida; L’Engle vs. Wilson, 21 Fla. 461.

In our judgment it is properly a part of the matter in hand to state that under the new law it is incumbent upon the collector to give notice to the heirs as required by Art. 210 of the Constitution, prior to the sale.

In the case before us, also, such we judge was the requirement of the statute.

Able counsel argue with great force the proposition: all tax sales are prima facie valid on their face, citing Art. 210 of the Constitution. But this article also directs that the collector shall, without suit, “ and after giving notice to the delinquent in the manner to be provided by law,” advertise the property for sale.

The maxim is familiar: that notice is of the essence in all things . required to be done. It applies to the exercise of ministerial power as well as to proceedings that are judicial or qu-asi-judicial. It is one of the most important of all safeguards which has been deemed necessary to protect the interest of parties taxed, and nothing can be substituted for it or excuse the failure to give it. Cooley on Taxation, p. 335. Notice is a prerequisite to the officer’s authority.

There are important informalities, and even illegalities, which may not be fatal, but the absolute want of all the notices required can not be disregarded.

Let us assume, for illustration, that a case has arisen under See. 25 of the act of 1890; that the heirs had failed to give the indicated notice to the assessor of the death of the taxpayer, even then, would not more regular proceedings require notice of sale to the legal representative or interested persons in the manner required?

Now that it has been provided that certain assessments may be legal and binding in default of notice by the heirs or interested parties it may well be that a presumption of regularity will arise from the mere fact that the assessment has been made, which was followed by a sale. Even then it would be advisable always to give a regular notice of sale in the manner required, and to make note of the fact in the deed in order that it may have full effect as a deed prima facie legal.

Here the case is stronger; the assessment was defective and did not give rise to presumptions which usually arise from acts on their face regular.

It does not seem to be consistent with principle in one breath to-give such importance to notice of sale, and in the next to assume, upon the merest presumption that notice has been given, although! nothing indicates (in this case) by reference to the papers, or to-memorandum even, that it has been given. Considered from every point of view we have found it utterly impossible to conclude that title passed upon the assessment of a dead man’s property made more than ten years after his death, followed by a sale, without proof of notice io the heirs or legal representatives of the succession or interested parties.

A want of notice required by the Constitution is not curable hy statute. Desty on Taxation, Vol. II, p. 619.

Although every reasonable intendment should be taken in favor of regularity in the absence of proof of notice, as before mentioned it can not well be presumed notice has been given.

“ Unless the language of a curative act is clear and unambiguous, courts will not give it a retrospective action.” Desty on Taxation, p. 618.

Notice is jurisdictional. Tt is not within the power of the Legislature to dispense with notice required by the Constitution, nor to cure its absence. Blackwell on Tax Titles, Sec. 75.

No doubt it has been decided that statutes which make a tax sale deed prima facie evidence of the regularity of the sale do not relieve a purchaser from the burden of showing proceedings anterior and necessary to the power. De Treville vs. Smalls, 98 U. S. 522. Such a provision has been held to relate only to the conduct of the sale itself. Ib.

Relative to the forfeiture under the act of 1869, which the defendant claimed enured to the benefit of his title, the assessment upon which the forfeiture was based did not contain a description of the property such as needful for its identification. An assessment is void which does not at all contain a description whereby it is possible to identify the property. The numbers of squares are given without boundaries of the property, or where there was any attempt made to set forth the boundaries the attempt came to an end after stating only one of the boundaries.

Moreover, the records are too incomplete to show forfeiture; the present auditor of the State certifies to their incompleteness in such terms as to render it exceedingly doubtful if ever an attempt was made to carry the incompletely described lands as forfeited lands. Again, the certificate of the recorder of mortgage, in whose possession an auditor’s certificate roll of 1869 was, shows that it was only •filed in the auditor’s office after the act of 1869 had been repealed by the revenue act of 1870, in which different provisions for forfeiture were set forth.

And, lastly, it appears that the taxpayer paid the taxes of 1870, rendering it inconsistent with the theory that the State authorities would have permitted him to pay taxes without receiving payment of prior taxes of 1869 then due. As to square No. 240 claimed under a judgment rendered for taxes alleged due, the basis of the claim is the following assessment:

No. 240, Francois Lacroix, ten thousand dollars.”

The description is too vague and indefinite to be taken as the basis of a tax title.

Lastly, the payment of one hundred dollars to the administrator for a ratification of the invalid sale of real estate could not have the effect of binding the creditors and heirs who did not give assent to any such ratification.

The amount allowed on the reconventional demand has every appearance of being correct. It could not be increased without more satisfactory evidence that the amount claimed had been paid by the defendant. On the other hand, it should not be lessened at the instance of plaintiff, who did not show, as he contended, that it was paid in depreciated paper.

It is therefore ordered and adjudged that the judgment is affirmed.

ON Application fob Rehearing.

Watkins, J.

On a reconsideration of this case we have been fully confirmed in the correctness of the conclusions at which we originally arrived, but we yield to the request of defendant’s counsel to leave our decree open so that he may claim any additional amounts not thereby covered.

It is therefore ordered and decreed that the rehearing be and same is hereby refused; but that the defendant shall not be concluded from demanding any additional sums he may have paid and which are not included in our previous decree.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,519.
    State of Louisiana ex rel. Henry S. Crozier vs. Hon. Emile Rost, Judge of the Twenty-first Judicial District Court, Parish of St. Charles.
    1. In summary proceedings like this, formal intervention not allowable in this court, but under the circumstances here presented, counsel representing other interests permitted to appear as amicus curia:.

    2. Application for writs’of certiorari and prohibition is made on ground of unconstitutionality of Act 72 of the laws of 1891.
    3. The case presented by the prosecution being one appealable to this court, the question of the unconstitutionally of the statute is reviewablo here on appeal from a conviction and sentence.
    4. This being so the rule is to withhold the writ of prohibition, and await the bringing up of the ease regularly on appeal.
    5. Even in a ease not appealable it would not be too late after conviction and sentence to invoke relief at the hands of this court, through its remedial writs, from the effects of a statute void for uncoiistituiionality.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      Walter JET. Saunders and Saunders & Miller for Relator.

      M. J. Gunningham, Attorney General, and Robert J. Perkins, District Attorney, for Respondent.

      P. 0. Zaeharie as Amieus Curia}.

    Submitted on briefs May 31, 1897.
    Opinion handed down on application to interplead June 1, 1897.
    Opinion handed down on application for writs June 29, 1897.
    On Application op the State Board op Agriculture and J. G. Lee, CommissioneR op Agriculture, to Intervene and Interplead Herein. *
    An application having been filed by relator for a writ of prohibition, a rule nisi issued, to which the respondent judge made answer.
    Whereupon P. C. Zaeharie, special counsel for the Board of Agriculture and for the Commissioner of Agriculture, appears and asks to be permitted to intervene and interplead herein, and to join respondent judge in resisting the writ. He shows the interest, public in character, which the parties he represents have in these proceedings.
    His right to intervene and interplead is resisted by relator.
    We are of the opinion that in summary proceedings like the present case formal intervention should not be allowed. .
    But the premises considered, especially the fact that the interest which seeks to be heard is public in character, the court permits P. C. Zaeharie, counsellor at law, to appear in the case as amicus curiae, with leave to file the plea presented, together with briefs in support thereof.
    On Application for Writs of Certiorari and Prohibition.
   The opinion of the court was delivered by

Blanchard, J.

This is an application for the exercise of our supervisory jurisdiction, by writs of certiorari and prohibition, to stay further proceedings in a criminal prosecution against the relator.

An information was filed charging him with selling by sample, for ' use in this State, two hundred and forty-seven packages of commercial fertilizer, and delivering the same to the purchasers here, from points outside the State, without compliance with the statute requiring such packages of fertilizer to be inspected and tagged.

The law alleged to have been violated is Act No. 72 of the Acts of Louisiana of 1894. We quote the immediate clause of the act upon which this prosecution is based, found in Sec. 6 thereof:

“Any person who shall sell, or offer for sale, any package of commercial fertilizer which has not been tagged as herein provided, shall be guilty of a misdemeanor, and on conviction thereof shall be fined in the sum of two hundred and fifty ($250) dollars for each offence. ”

It will be noticed that this statute makes it a misdemeanor, punishable by fine of two hundred and fifty dollars, neither less nor more, for selling or offering to sell eaoh package of fertilizer that has not been tagged. That is to say, under the precise terms of the law a separate offence is committed, punishable by two hundred and fifty dollars fine, for each package offered or sold untagged. Therefore, the information filed in this case charges the relator with the commission of two hundred and forty-seven separate offences, each punishable with the fine mentioned, when it alleges that he offered to sell and did sell two hundred and forty-seven packages of fertilizer without tags.' And if proof is made that he thus sold two hundred and forty-seven packages, and the jury so find, and render a verdict accordingly, the aggregate amount of the fine to be imposed on relator would equal the enormous sum of sixty-one thousand seven hundred and fifty dollars under this prosecution. Hence it is clear that this court would have jurisdiction of the case on appeal, for the Constitution gives the court jurisdiction in criminal cases, on questions of law, when a fine exceeding three hundred dollars is imposed.

The relator bases his application for the writs mentioned on the unconstitutionality of the statute referred to. His position is that the law under which he is being proceeded against contravenes the provisions of the Constitution of the United States as well as of the State; that it is, therefore, void, and no legal proceedings can be had thereunder. The purpose of his application, therefore, is to have the statute, or that part of it authorizing this prosecution, declared void for uneonstitutionality.

It is clear, of course, that this presents a question of law” of the highest character, since it involves a construction of the Constitution itself, and the same would be reviewable by us on appeal from the merits of the ease, that is to say, fr. m a verdict of conviction and a sentence of fine exceeding $300.

This being so it is the rule of this court in such-cases not to exercise its writ of prohibition, but to await the bringing up of the case regularly on appeal. Ordinarily, we exercise supervisory jurisdiction by writs of certiorari and prohibition only in unappealable cases, leaving errors committed in appealable causes, or questions affecting the validity of the statute upon which the prosecution is based, to be corrected or decided in due course on appeal. State ex rel. Walker vs. Judge, etc., 39 An. 132; Brouillette vs. Judge, etc., 45 An. 243; State ex rel. Morere et al. vs. Judge, 44 An. 1100; State ex rel. DeBuys vs. Judge, 32 An. 1256.

We are not to be understood, however, as holding that in no case which may be appealable will this court exercise its supervisory jurisdiction through the medium of the remedial writs mentioned. On the contrary, cases may arise where the court, in the exercise of a sound discretion and in furtherance of the ends of justice, will exert the control and supervision of inferior courts granted it by Art. 90 of the Constitution, even in cases where an ultimate appeal lies. See Brouillette vs. Judge, 45 An. 243.

But they must be cases of peculiar circumstances, or extreme urgency of necessity, which take them out of the general rule referred to. We do not deem the instant case to be of that character.

Even if the case were not appealable, it would not be too late after conviction, and the imposition of a ñne, to invoke the control and supervision of this court, through its writs, to grant relief from the effects of a statute void for unconstitutionality. We do not wish to be understood, by this, as intimating the statute in question is unconstitutional. Our opinion as to that is reserved.

Let the relator stand his trial on the information, and should conviction ensue and a flue is imposed vesting this court with jurisdiction on appeal, such appeal will bring before us all the questions now presented in his application for tne writs.

And, in any event, they can be gotten before us by seasonable application for the writs. We hold that the present application is not seasonable, but premature.

For these reasons it is ordered that the peremptory writ of prohibition be denied, and the rale nisi issued herein be discharged at the costs of relator.

Nicholls, O. J., absent; ill.


author: Watkins, J.

text:
    No. 12,517.
    In Re Southern Liquor and Tobacco Company, Limited, in Liquidation.
    In case the only opposition to a receiver’s account is for the sum of forty-three dollars and eighty-six cents, this court is without jurbdiction, as the case presents no conmrsns, and there is no fund to be distributed among the several contestants in the sense of the Constitution, Art. 81.
    PPEAL from the Civil District Court for the Parish of Orleans* King, J.

      DinJcelspiel & Hart for Receiver, Appellee.

      F. O. Zaeharie for Tax Collector, Opponent, Appellant.
    Argued and submitted June 24, 1897.
    Opinion handed down June 30, 1897.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The ground of the motion is, that the amount demanded is less than two thousand dollars, and that this court has no appellate jurisdiction ratione materise — there being no question involved of the legality or constitutionality of a tax.

The ease comes to us by an appeal on the part of the State Tax Collector from a judgment rejecting his demand against the Southern Liquor and Tobacco Company, Limited, in liquidation, for the payment of the sum of forty-three dollars and eighty-six cents, as the amount is due for the State taxes of 1895; and the record shows that this demand was brought to the attention of the court by means of an opposition to the final account, which had been prepared and previously filed by the receiver of the liquor and tobacco company in liquidation — thus clearly evidencing the fact to be that it was the amount and not the legality or constitutionality of the tax which was involved.

The contention on behalf of the counsel for the appellee is as follows, viz.:

“The appeal is from the judgment dismissing an opposition of the State Tax Collector, claiming to be paid from certain funds in the hands of the receiver by preference over and above all other creditors, said sum of forty-three dollars and eighty-six cents. The receiver filed his final account, which was advertised according to law, and, in due course and after the legal delays, homologated so far as not opposed; the only opposition was that of the State Tax Collector, the present appellant; this opposition was then tried and judgment rendered dismissing it, and from that judgment the appeal was taken: there is no appeal from the judgment homologating the account so far as not opposed; and therefore, under repeatsd decisions of this court, everything embraced in the account and covered by that judgment is out of the case, leaving nothing undisposed of, except this claim for forty-three dollars and eighty cents. In the Succession of Duran, 34 An. 585, the court said:
“Where there was a judgment in the lower court homologating an account of administration, so far as not opposed, which judgment had become final, and where the only opposition to the account was a claim for two hundred and thirty-seven dollars and sixty cents for drainage taxes, this court has no jurisdiction to determine the merits of the controversy, because the amount to be distributed is no longer appealable.” See also Succession of McDowell, 35 An. 1025, and Succession of Gohs, 37 An. 428.

The opinion first cited is precisely like the one at the bar, and the syllabus quoted by counsel fairly states the issues therein involved.

There is no concursas presented, and, consequently, no fund marshaled before the court for the purpose of making a distribution thereof among rival contestants thereto, as contemplated by Art. 81 of the Oonstitution.

The three cases are perfectly in accord.

Counsel for the tax collector in his original brief states that “ the issue involved in this ease is the right of the State Tax Collector of the First District to be paid by preference the amount of State taxes, forty-three dollars and eighty-six cents with interest, costs and penalties, due by the insolvent corporation for the personal taxes of the year 1895.”

The record shows that the receiver filed his first provisional account and tableau of distribution on the 25th of October, 1895, and same was homologated by a judgment rendered on the 10th of February, 1896, and that on the 16th of February, 1896, he filed his final account, to which the only opponent was the appellant tax collector.

■Tne judgment pronounced is in the following terms, to-wit:

This case is the opposition of the State Tax Oollector of . the First District of the city of New Orleans to the final account of the receiver herein, having been submitted to the court, and the court considering the law and the evidence to be in favor of the receiver, and for the reasons orally assigned, it is ordered, adjudged and decreed that there be judgment dismissing said opposition. It is further ordered and decreed that the final account of the receiver herein be approved, and the funds distributed accordingly.”

The judgment, as well as the pleadings, shows that there, is no concursus before us, and that the demand is not within our jurisdiction.

Appeal dismissed.

Nicholls, C. J., absent; ill.


author: Breaux, J.

text:
    No. 12,530.
    E. Fudickar vs. Monroe Athletic Club.

      On Motion to Dismiss. — This court had jurisdiction of the amount to be distributed; it followed that it had jurisdiction to pass upon the respective claims to the amount.

      On the Merits, — 'By agreement the plaintiff held the mortgage first in rank.
    Another creditor had waived its right and consented not to enter any claim for the fund (proceeds of the mortgaged property).
    Another, a third creditor, had aprivilege prior in rank to plaintiff’s mortgage.
    This priority also primed the rank of the secopd creditor, but who, by its waiver, placed itself in a position not to compete with the third creditor as to rank, who, by the effect of the agreement, became second as to rank of claim. Second, the creditor had supplied to the owner material for the construction of the building, which could not be removed without impairing the building.
    He had a privilege for his claim.
    The appraisement made of this material, separate from the construction, was not a waiver; having been made in compliance with an alternative demand.

      4PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Potts & Hudson for Plaintiff, Appellee.

      Stubbs & Russell for R. J. Searcy, Third Opponent, Appellee.

      M. M. Boatner and E. T. Lamkin for MonroeBrick Company, Limited, Third Opponent, Appellant.
    Argued arid submitted June 5, 1897.
    Opinion handed down June 21, 1897.
   On MotioN to Dismiss the Appeal

The opinion of the court was delivered by

Breaux, J.

One of the opponents, R. J. Searcy, moves to dismiss the appeal on the ground that this court is without jurisdiction ratione materise.

We do not think the motion should be sustained. The amount within the court’s control, to be distributed, is more than seven thousand dollars.

The creditors’ claims are within this court’s jurisdiction except one. The fund to be distributed is necessarily the test of jurisdiction; here the contest relates to the distribution of an entire fund.

The entire fund is claimed by creditors for amounts respectively within the lower limit of this court’s jurisdiction.

Jurisdiction vests, though one of the creditors claims an amount less than two thousand dollars out of the larger sum to be distributed. Renshaw vs. Stafford, 34 An. 1138; Meyer Weil vs. Levi, 40 An. 135.

On the MERITS.

• The facts are that on the 7th of May, 1895, the defendant entered into a contract with the Monroe Brick Company to build a club and opera house upon a lot which the defendant company had bought from the plaintiff on credit.

The purchase price was unpaid. Eight thousand dollars was the price stipulated for the building.

The club employed R. J. Searcy to furnish and set up a boiler and to put in water pipes, tanks, tubs and other ■ improvements needful to furnish steam to heat the club room and opera house.

His claim was recorded in the mortgage record.

In an act of mortgage dated the 8th day of November, 1895, the Monroe Athletic Olub, defendant here, acknowledged an indebtedness of six thousand two hundred dollars to the Monroe Brick Company, and an indebtedness of one thousand nine hundred and eighty-nine dollars and twenty cents to E. Fudiekar, for which amount the club gave a mortgage and notes secured by the mortgage. Of the total indebtedness, five thousand dollars was to be secured by a mortgage first in rank, and the remainder by a mortgage second in rank.

A stipulation of the mortgage shows that the brick company, in accepting the mortgage, did not relinquish and novate the builder’s lien it had; it was especially reserved.

The brick company transferred its notes secured by mortgage and all claims it had against the defendant to the Ouachita National Bank.

In the act of transfer the contract and builder’s lien is referred to as transferred; besides the transferrer bound itself hot to attempt to prorate its mortgage note with its transferee, the Ouachita National Bank. The bank in turn transferred this claim to Fudiekar.

The transferee, Fudiekar, foreclosed his mortgage, and at the sale became the adjudicatee of the property for the sum of seven thousand and fifteen dollars.

The judgment of the District Court decreed payment to R. J. Searcy of the sum of one thousand and eighty-one dollars out of the sale, and the remainder to the plaintiff.

The judgment recognized the claim of the brick company for the sum of one thousand two hundred dollars, with interest and fee of attorney as due by the defendant, but rejected the privilege it claimed upon the property.

From the judgment the brick company alone prosecutes this appeal.

The appellant transferred to the Ouachita National Bank its contractor’s lien and mortgage upon the property to secure the payment of the claim transferred, and, in addition, in writing, bound itself not to ask a concurrent distribution, with its transferee, of the proceeds of the sale of the property mortgaged.

The plaintiff was not a third person. It appears by the act of mortgage in favor of the brick company that he held the mortgage •second in rank.

He, in acquiring the mortgage first in rank, became subrogated to the rights of his transferrer under the mortgage. Subrogation took place of right. O. C. 2160. As we appreciate the testimony that was the agreement when he acquired the claim; besides as second mortgage creditor, the law in its effect in such cases subrogated him to all the rights of the one from whom he acquired. We feel justified in considering the claim as if it were still held by the Ouachita National Bank, the original transferrer to the plaintiff.

In that case it would not be possible to claim for the brick company •a preference over the bank, to whom it transferred its notes secured by mortgage on the property. The mortgage rights under this first mortgage prime every claim of the brick company. It can not be otherwise in view of the written agreement entered into by it binding itself not to contend for or claim a participation in the proceeds •of the sale of the property.

The brick company, to the amount of five thousand dollars, is concluded by its written agreement both in so far as the plaintiff is con-cerned or the Ouachita National Bank.

This conclusion disposes of the issues between the plaintiff and the brick company.

This brings us to a consideration of the claim of the opponent, ■Searcy, who alleged that his contract and account for work done by him on the building were seasonably registered; that this amount due him is secured by a lien, which takes rank of all mortgages on the property.

We have seen that the brick company is estopped from claiming preference on the proceeds over the bank and its transferee, the plaintiff.

The third opponent, Searcy, as a privilege creditor, retained his preference as to payment over the mortgage of plaintiff.

It follows that the waiver in favor of the bank, which enured to the ■benefit of the plaintiff, resulted in securing a prior right in favor of this third opponent.

It was urged on the part of the brick company that plaintiff in his petition to foreclose his mortgage did not claim a privilege on the property, but that he limited his claim to his mortgage.

As concerned the brick company, there was no necessity of his claiming a privilege; the mortgage by agreement gave him the first rank as a creditor, the effect of which was to subordinate the brick company’s claim to plaintiff’s mortgage covering amount of the mortgage interest and fee of attorney, and to the claim of those who had a right superior in rank to this mortgage.

It is urged against the privilege securing this claim that it should be limited to the property placed on the building by this contractor.

The testimony shows that this debt was for work and material used in the building, and that it, the material, can not be detached and taken therefrom without damaging the building.

The privilege arises under Art. 3249 of the Civil Code.

This creditor had a separate appraisement made of this property in accordance with the allegation of his petition, made in the alternative if he was not granted a privilege under the article just cited, then he prayed for a vendor’s privilege on this property.

The opposing creditors claim that this was in effect a waiver.

We do conceive that this was a relinquishment of any right, claimed, as it was, in the alternative.

We have given this case on all points careful consideration, and have found no reason to disturb the judgment;

It is therefore ordered and adjudged that the judgment appealed from is affirmed.

Nicholls, C. J., absent; ill.


text:
    No. 12,504.
    Duncan N. Hood et als. vs. City of New Orleans et als.

      Joint Owners.*-The assessment in the name of a joint owner, with words additional to the name indicating clearly enough who are the other joint owners, is not an invalid assessment.

      Description and Ratification. — The numbers of the lots had been changéd, but the remainder oí the description by boundaries was correct enough to identify the lots. The joint owners are bound by the assessment, particularly in view of the fact that the legal representative of the succession of the father of the joint owner paid the taxes upon the description as made, and no objection appears to have been made to the payment of the tax.

      Prescription Does Not Apply. — The prescription of three years did not run in favor of the tax debtors. Whether the lien and privilege is recorded or not the tax debtor (not a third person) remains indebted.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Wall & Walt for Plaintiffs, Appellants.

      W. B. Sommerville, Assistant City Attorney, for Defendants, Appellees.
    Submitted on briefs June 15, 1897.
    Opinion handed down June 21, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs brought this action against the defendants to have decreed null the tax sale of their property made to the State, to erase the city and State taxes from the mortgage records, and to enjoin the intended sale of their property by the city.

The judgment of the District Oourt, from which the plaintiffs appealed, sustained the injunction against the city; canceled and erased the sale to the State, but recognized the sufficiency of the assessment assailed by the plaintiffs and rejected their plea of prescription.

In 1896 the property was adjudicated to the State for the taxes of 1895, and subsequently the same property was advertised to be sold for the taxes of 1892 to 1895.

The plaintiffs ace the children of General John B. Hood. A short time after the death of their father and mother, who died in 1878 during the fever epidemic of that year, they in a compromise with a life insurance company received two lots of ground, with the improvements thereon, designated by the numbers four and five of square number twenty-six, bounded by Roman, Oanal, Gasquet and Prieur streets.

The property, after the sale made to the plaintiffs, was always assessed in the name oi “ Annaoel Hood et al., minors.”

The property was owned jointly by the children — namely, Annabe^ Hood, Ethel Genevieve Hood, John Bell Hood, Duncan Norbert Hood, Marion Maud Hood, Lilian Marie Hood, Odile Musson Hood, Ida Richardson Hood and Oswald M. Hood. The boundaries and numbers of the lots were correctly given, save that there was error in numbers of the squares.

The complaint of plaintiffs on this point is, that a description, as relates to numbers, which sets forth lots fourteen and fifteen of square twenty-six is not a correct description of plaintiffs’ property, which is lot four and five of square twenty-six.

The second ground urged by plaintiffs is that an assessment in the name of “ Annabel Hood et al.,” of property owned by the heirs before named, is not an assessment of the property in the name of all the joint owners.

The evidence shows that the city taxes upon the property were paid up to the year 1892 and the State taxes up to the year 1895.

The plaintiffs, although they admit that they were paid, deny that the taxes were paid by them or their legal representatives.

Plaintiffs sought to sustain their objection to the assessment, on the ground that the owners were not expressly referred to or named on the assessment, by citing two eases of this court.

The first was the case of Hays, Administrator, vs. Viator, 33 An. 1162. The syllabus of the decision is perhaps broader and more sweeping than the matter in hand required.

The opinion sets forth a number of irregularities in the assessment.

The property had been assessed as a whole in the ñamé of the owners — that is, each of the two owners named were mentioned as the respective owners of the whole property; the name of a third joint owner was not mentioned at all. There were a number of essentials in the assessment and in the matter of the proposed sale. They were passed upon, and in view of the great irregularity, the assessment was annulled.

In Thibodaux vs. Keller, 29 An. 508, the other cited case, the property had been sold for taxes, of a partnership, though not assessed in the name of the partnership.

In the ease in hand it appears that the property was assessed in the name of one of the owners, with the addendum etal., minors.”

We are referred to Sec. 11 of the Act of 1888, requiring the Assessor to see that property is assessed under a correct description, and in the names of the owners; a wise provision, and one which should not, in any ease, be overlooked.

The question arises here as to whether there was not a substantial compliance with the requirement of the statute. The property was the property of the taxpayers and others, minors, who were the joint owners.

■ There was nothing misleading in the name given. Usually it is desirable to write down on the assessment roll the names of each of the joint owners where the property is owned jointly. But the failure to insert the name of one or more of the joint owners was-not cause to annul the assessment if the generic term used plainly indicated who were the owners. The meaning was the “ Hood minors.” There was nothing disguised or concealed about the names such as to lead the taxpayer into error.

They offered in evidence proof of payment of taxes assessed, as we have just stated. They assert in argument, and we assume it is correct, that these taxes were paid by the administrator of the succession of General Hood. At least three of the heirs were of age when the last payment of taxes upon this property was made by the-legal representative of the succession.

There is no evidence before us that the heirs of age, or the tutor of the minors, ever objected to the payment of the taxes that had been made.

After the payment of these taxes during many years, either directly or through a legal representative, heirs are not in a position to urge that they were not the parties “ who were assessed, or that their property was not assessed at all.” Where the description contains elements of error, such as would mislead, it is invalid.”

Burroughs on Taxation, p. 205. ■ We have not found in the names-as given of the taxpayers any misleading error rendering the assessment invalid. The assessment was not to the wrong person; those assessed were the tax debtors. There is certainly nothing unjust and inequitable in a judgment decreeing that the owners shall pay these taxes, whose action in thus paying it does not appear that the owners have ever disavowed.

This brings us to the question of the description of the land as relates to the number of the lot, which it appears was not correctly given. In every other respect it was correct.

Identification of the property that the owner may know that his property is taxed, and the purchaser at the sale in case of sale may know the property he buys, is the object. This was accomplished in this case, as made evident by the fact that the taxes, without objection as before stated, were paid for many years.

It must be borne in mind that this was not an action in which a third person claims title under a tax deed.

It was a suit (on appeal) brought against the State to cancel an assessment.

There exists an equity in favor of the taxpayer who seeks to pay-his taxes when the sovereign alone is concerned.

In the former ease, a title being involved, the courts are more stringent as to the accuracy of the description. Burroughs on Taxation, Sec. 95; see Act 140 of 1890. ,

And in the last place, with reference to description, it was possible to rectify the assessment; it was possible for the assessor to have corrected the rolls, given the proper notice and made proper advertisement, taking the assessment as a basis.

No complaint was ever made by the tax debtor as required by Sec. 25 of Act 106 of 1890. A wrong description is no longer timely under the section in question.

With reference to prescription it only remains to say that it did not run in favor of the tax debtor. . It is settled that the tax debtor, who was personally indebted for the amount, had no right of defence growing out of whatever prescription applies when third persons are concerned.

It is therefore ordered and adjudged that the judgment appealed from is affirmed.

Nicholls, O. J., absent; ill.


text:
    No. 12,463.
    John Holmes, Jr., vs. Tennessee Coal, Iron and Railroad Company et al.
    On Motion to Dismiss the Appeal.

      Not a Judicial Function.— The power granted to the Secretary of State to receive the bonds of certain corporations and issue certificates based thereon, is ministerial.

      Not Violative of Constitution. — The right granted to these corporations to become sureties on appeal bonds is not a privilege. It was granted to a class, and there is nothing “ special ” in the statute.

      Principal's Signature. — The signature of the principal to the appeal bond need not be proven.

      Proof of Signature of Surety. — The certificate of the Secretary of State, admitted without objection, proved the signature of the surety on the bond; moreover, the objection was not timely made.
    On the Merits.
    The employee was an ordinary employee, a servant and n an independent contractor.

      Damages of the Servant. — De spite the hard treatment possible in certain cases, the court must, in accordance with law, hold that employers and masters are answerable for damages of their servants, committed while in the exercise of the functions in which they are employed and incidental thereto.

      Negligence. — It was an act of negligence to throw a large heavy board from the top of the car In the open space, where the one wounded by the blow of the falling board was passing.

      Amount — The damages awarded will not be increased unless manifestly insufficient.
    APPEAL from the Oivil District Court for the Parish of Orleans. Théard, J.

      ■ Benjamin Itiee Forman and B. B. Forman, Jr., for Plaintiff, Ap-pellee.

      Bice & Montgomery for Defendant, Appellant.
    Argued and submitted April 27, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused June 30, 1897.
   On Motion to Dismiss the Appeal.

The opinion of the court was delivered by

Breaux, J.

The appellants having furnished appeal bond, with the United States Fidelity and Guarantee Company as surety, signing per Macon & Emery, agents and attorneys in fact, the appellee moved, on a number of grounds, to dismiss the appeal.

The grounds are:

First — The act under which certain corporations are authorized to become sureties upon bonds is illegal, for the reason that the functions entrusted to the Secretary of State, directing him to inquire as to the solvency of these corporations, are judicial and not ministerial.

Second — That the statute confers privileges upon the asserted favored corporations.

Third — The signatures of the principal and sureties on the appeal bond had not been proven.

Fourth — That the surety is not a resident of the parish of Orleans, where it has no property.

It is in place for us to state that the certificate of the Secretary of State, made out in accordance with Sec. 6 of the act No. 41 of 1894, is of record before as, establishing, as required by the statute, that the guarantee company, represented in this State by Macon & Emery, has complied with the laws of this State relative to foreign corporations authorized to become sureties on bonds.

The first objection raised by the appellee renders it necessary to determine whether the power conferred on the Secretary of State by the act in question is a judicial power.

Preliminarily to a decision of this point, it may be said that judgment, in the sense of exercising judicial power, involves an opinion and a decision. Here there is nothing of the sort. He, Secretary of State, does not put forth judicial power.

There is a broad distinction to be made between special authority under express delegation of duty and the judicial power invested upon courts in cases. The former is a ministerial function and the latter is judicial, emanating from a judge, or proceeding from a court of justice authorized to decide causes or exercise the functions of a court.

But under the statute in question the Secretary of State is authorized to accept a bond only under given facts, a duty purely ministerial.

His functions in matter of these bonds are well defined, and the limited authority with which he is entrusted, if not properly exerted, is subject to judicial investigation and decision.

The power to grant a certificate imposed upon the Secretary of State upon facts stated does not involve the exercise of a judicial function. As to the exercise of judgment which is required, it is not judicial in the sense of the power delegated to the courts.

A similar question was decided in State vs. Doyle, Secretary of State, 40 Wisconsin, 175; the court held that the power was not judicial, but ministerial.

Ministerial duties are exercised in obedience to a command or rule well defined — i. e., simple obedience or service is required in a specified manner. Pennington vs. Streight, 54 Indiana, p. 376.

With reference to the asserted privilege granted, urged as a second ground of objection:

The State may exercise the power of authorizing corporations or persons of a particular class, possessing the required responsibility or ability to become sureties, or perform certain acts. The statute has made no exception and applies to all of a class. The right of immunity is not special. It may be taken advantage of by all those whom the Legislature has chosen to designate by reference to a class or a number without violating the limitation of legislative power not to grant “ to any corporation any special privilege.” The right is not a privilege, and there is nothing special in the statute.

With reference to the proof of the signature of the principal, another objection to the appeal, raised by the appellant, it has long since been settled that such proof is not necessary. Richardson vs. Terrell, 9 Martin, 34. As relates .to the security and the objection urged that there is no legal proof that Macon & Emery were the agents of the surety to bind the surety; the certificate of the Secretary of State setting forth that they were agents was admitted without objection. Moreover, in the motion to dismiss filed in the lower court and tried, the objection here made was not raised. It follows that the ground was not timely urged before this court.

The case of the Standard Cotton Seed Oil Company vs. Matheson, 48 An. 1321, is an applying authority. The grounds were thoroughly considered in the cited case. We can conceive of no reason upon which to overrule that well considered case in so far as iD applies to the motion to dismiss this appeal.

The motion to dismiss is not sustained.

ON the Merits.

Plaintiff brought this action to recover damages from the defendant for asserted negligence in having employed an incompetent servant who, it was alleged, threw a large and heavy plank out of the car he was unloading, inflicting a scalp wound upon him (the plaintiff) and also fracturing his thigh, causing great pain and permanent injury. He was confined fifty days in the hospital and he was permanently crippled by the blow.

The appellants’ contention is that the injury complained of was not one for which it could be held responsible; that no act was traced to the Tennessee Coal and Iron Railroad Company, but that the injury complained of was inflicted by an independent contractor for whose negligence the appellant was not responsible.

In support of its defence the appellant averred that it was a shipper in cars of coal to this city to its agent Grote, who in turn contracted with one Seals to unload the cars at one dollar and fifty cents or two dollars and fifty cents a car; that Seals was not controlled in unloading the cars.

It'appears, by the evidence, when the accident occurred, Seals was unloading coal from a ear for the Jackson brewery on the levee in this city (buyers and consumers of the coal). The plaintiff was passing near the car at the time Seajs, aided by a hand he had employed to help him, was throwing the large and heavy board from the top of the car which, in falling, struck plaintiff. The injury, the evidence shows, was in connection with the work — i. e., the board was thrown off the car in connection with the work which was being done while unloading it. There was a judgment against the appellant for two thousand dollars.

Servant or Independent Contractor.

The first question before us for determination, is whether the person by whose act the injury is charged to have been committed was an independent contractor and not appellant’s servant.

The employer, in this case, unquestionably, ruled the servant, who was an old negro, who owned the shovel with which he unloaded the coal car. He slept in the coal yard and was on the lookout fora job. At times he'unloaded carts for the defendant, for which he was paid by the day. When he unloaded a car load of coal, he was paid for each car load he unloaded. This was, as we appreciate the facts, the only difference between the two; when he unloaded carts he was paid by the day, when he unloaded cars he was paid for each car unloaded by him. Occasionally he employed a hand to help him. If there was delay in unloading cars the defendant would employ additional labor and attend to the unloading.

Prom the facts proven, we judge that the old man could quit when he pleased; the employer on the other hand, could discharge him at will by paying for the work to the moment of the discharge. The laborer, as we understand, was under the authority of a principal, who directed and ruled in all matters relating to the work. A servant is one who, for wages, serves his employer, following his direction in performing the work. A workman by the piece who, by his industry and labor, gives the required shape to the material of his employer, who has no interest in the work and is not under a contract, is a servant, and an ordinary employee; the same is true of a laboring man who works by the job, in unloading a ear of coal under the direction and subject to the control of the employer. His (the laborer’s) task in the case before us was measured by the work required to unload a car of coal instead of by the day.

The independent contractor, on the other hand, is one who prosecutes an occupation having some independence.

While performing his contract and complying with its terms he is not subject to the rule and control of the employer, who can not interfere save to require the performance as agreed. The relation is one of contract under which the contractor retains same degree of independence, while the laboring man follows the employer’s direction, and is not independent in the sense of the independent contractor’s independence. The issue is whether this man was a laboring man, as such a servant, or an independent contractor; whether he was accountable directly to his employer, or holding an independent occupation? We must, under the definition of servant and of independent contractor, conclude that he was a servant serving for wages.

Were it different every workman working by the piece in every shop and factory or elsewhere for an employer would be an independent contractor, although he is not more independent or not more free from the control and direction of his employer than the most ordinary day laborer.

The test is found, said this court in Shea vs. Reems, 36 An. 967, in the question whether one person “has placed himself under the direction and control of another in such manner as to confer upon the latter the power of discharge for disobedience.”

Servants, says the Code, are those “who let, hire or engage their services to another in this State, to be employed therein at any work, commerce or occupation for the benefit of him who has contracted with them for a certain price or retribution, or upon certain conditions.” Art. 163.

The Rule, Respondat Superior.

It is also the law that a third person injured is entitled to such remedies against the superior as he may have suffex'ed at the hands of his servant while he, the servant, was carrying out the object for which he was employed. Here the servant did not step aside from the employment to commit the act. It was committed in connection with the work. •

“ Masters and employers are answerable for the damages by their servants in the exercise of the functions in which they are employed.” O. 0. 2320.

Our view of the Code finds expression in the following: “We never apply this rule without a sense of the hardship on the master; but it has been settled on a broad balancing of interest and equities, and judiéis est dieere, non donare, legem.’’’ Shea vs. Reems, 36 An. 969, which we here earnestly reiterate.

Negligence of the Servant.

By the foregoing conclusion we were brought to the last issue here involved: the nature of the act committed and the amount of damages which should be decreed. There was manifest negligence in throwing a heavy board in the open street, without the least regard to the safety of those passing near the car which was being unloaded.

They threw the board without the least warning, and struck the defendant. There would be no end to accidents if such acts were passed unnoticed.

Amount of Damages.

We agree with our learned brother of the District Court in the amount awarded, and we must decline to grant the prayer for an increase of damages. We have been given no good reason to justify us in increasing the amount allowed. It is consistent with our decrees allowing damages. Courts of appeal are not inclined to increase damages unless the amount is manifestly too small.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.

Nicholls, C. J., absent; ill.


text:
    No. 12,432.
    Claude Tiblier et als. vs. Land Trust of Indianapolis.
    The property in controversy had been sold for taxes of 1877; under the act of 1884.
    The intervenor held title by mesne conveyance, from the purchaser at tax sale.
    The officer by whom the asesssment was made had the authority to assess the property.
    There was an assessment made in the name of one whose name figured in the conveyance office as an owner of the property.
    Legislation has pronounced such tax titles legal.
    It has been repeatedly held that such titles are made valid by a curative act, such as was enacted to apply to proceedings in tax sale for taxes for years stated in statute.

      PPEAL from the Civil District Court for the Parish of Orleans. ■ Théard, J.

      William Winan Walls for Plaintiffs, Appellants.

      Frank N. Butler for Defendant and Intervenor, Appellees.
    Argued and submitted March 30, 1897.
    Opinion handed down April 12, 1897.
    Rehearing refused, reasons assigned June 30, 1897.
   The opinion of the court was delivered by

Breaux, J.

This action was brought on the 13th February, 1894, by Tiblier and others,' heirs of Claude Tiblier, to be declared the owners of a square of ground in the first district of this city.

Claude Tiblier acquired from Manuel Elliott in 1862.

It appears that the property was assessed in the name of William Henry for the year 1877.

On the 16th June, 1886, the State Tax Collector sold and adjudicated, pursuant to the provisions of Act 82 of 1884, the property claimed by the plaintiffs, to D. Negrotto, to enforce payment of the tax due the State of Louisiana for the year 1877, assessed as just stated.

In 1888 a tax collector’s deed was executed by the authorized tax officer confirming the sale to Negrotto, under Act 82 of 1884.

Subsequent to the date, plaintiffs filed their petition; the defendant, who held by mesne conveyances from D. Negrotto, sold the property to the intervenor, Nicholas Riviere.

In 1888 the Western Land and Emigration Company, vendor to *he defendant, filed a bill of complaint in the United States Circuit Court against the recorder of mortgages for the parish of Orleans; and the tax collector claiming to have paid all the taxes that had •been assumed by Domingo Negrotto, Jr., at the tax sale of the property under Act 82 of 1884, prayed for the cancellation of taxes for years stated in the bill of complaint. It appears that in 1889 a final decree was rendered in the suit before the United States Court daring that the taxes not paid by the plaintiff company were extinguished by prescription.

In order to be recognized as the owners of the property plaintiffs assailed the title deeds under which the intervenor acquired the title he claims.

Plaintiffs’ grounds for annulling the tax deeds under which the intervenor claims the property are: that the assessor listed the property on the assessment rolls for 1877 in the name of William Henry, who was not, plaintiffs aver, the owner, and was not in anywise connected with the property. They assert that the true owner’s name might have been discovered by a simple inspection of the conveyance record; that ther* was an absence of notice of the tax proceedings to the owner of the property.

The plaintiffs allege that the pretended' title of William Henry, in whose name the property was assessed for the years 1875 to 1878, inclusive, was acquired from W. J. Delano, on May 19, 1877, and duly registered in the conveyance office; that Delano, Henry’s vendee, had acquired his alleged title by an adjudication made by the sheriff of the Superior Court for the parish of Orleans, on December 10, 1875, to satisfy a judgment rendered against M. Elliott, in a suit entitled “ The Commissioners of the First Drainage District vs. M. Elliott; ” that the adjudication (o Delano was null for the reason that long prior to the suit he had conveyed the title to the property to Claude Tiblier.

The defendant and intervenor alleges that' the tax title théy invoke is legal.

They plead the prescription of three and five years.

The judgment of the District Court rejects the demand of plaintiffs, and decrees that the intervenor is the owner of the property he claims.

The plaintiffs appealed from this judgment.

Preliminarily, it must be borne in mind that the tax ordinance of the Constitution temporarily remitted, all interests, penalties, costs, fees and charges on taxes of a date prior to the first day of January, 1879, and property which was affected by the tax laws of that date was redeemable until the first day of January, 1881.

In the preamble of the Act 82 of 1884 (an act adopted to enable the proper authorities to sell the lands indicated in the tax ordinance of the Constitution) it was declared that great difficulties had been experienced in giving legal title to property sold for taxes, which fact had kept and was keeping such property out of market, thereby depriving the State of a portion of her legitimate revenue.

In order to enable the tax collectors to sell the property the law was enacted containing provisions making the deed conclusive evidence of the fact that the property was assessed according to law; that the taxes were properly levied, and that all the prerequisites had been complied with by all the officers, from the assessment up to and including the registry of the deed to the purchaser.

This act was vigorously assailed in cases heretofore decided on a number of grounds, including those now urged by the appellant. Its legality was sustained in a well considered opinion without any dissent.

In the matter of Orloff Lake, 40 An. 142. The decision was affirmed shortly afterward in re Douglas, 41 An. 765.

The following from the syllabus denotes the principles of the decision. “ Act 82 of 1884 is a remedial statute intended to cmre irregularities in prior tax proceedings by making tax deeds conclusive evidence of compliance in certain matters.”

In our judgment tax proceedings are not always conclusive evidence of compliance with the law. They may be void to a degree that no curative act can give them vitality. It remains that tax sales for taxes due prior to the adoption of our Constitution are in every respect supported by the strongest presumption.

We must give some weight to precedents that have given to that presumption an effect almost conclusive.

While precedents should not be blindly followed, they should not be lightly treated.

All must be of opinion that in matter relating to title to property stare decisis is of great moment always:

Blackstone said about land titles: an established rule to abide by former precedents when the same points come again in litigation, should be maintained.

In two cases only of this court, of dates subsequent, the titles under the “healing and curative act” were deemed so absolutely null that they did not come within its provisions. The first was the case of Augusti vs. Lawlers, 45 An. 1371, in which we held that the confusing advertisement and misleading description of the property precluded the possibility of any other conclusion than that the tax deed was void and not within the power of the Legislature to cure the illegalities.

The second was the case of Edwards vs. Fairex, 47 An. 172, affirmed by the decision in Walsh vs. Harang and Husband, 48 An. 988, in which we held that uninterrupted carrying of property on the assessment roll in the name of a dead man was not assessment which a healing and curative act could make legal and binding. The controlling reasons in that case were, that property should not be assessed in the name of one who (every one knew) had long prior departed this life; whose property had passed out of his succession and was in possession of heirs or others who were not in the attitude of having abandoned their title or of having neglected to assert their right to the property. The title to property passes by the operation of the law to the succession or to the heirs from the moment of the death of the deceased.

In the case before us, for our determination, during more than thirty years the plaintiffs remained silent and acquiescent.

There is no evidence of any attempt to exercise any right as owners of the property from 1862 to 1877, the year that the property was assessed in the name of William Henry. The validity of this assessment was not questioned until a period of seventeen years had elapsed from its date to the date the suit now before us was brought to set aside the tax deed.

In Michel vs. Stream, 48 An. 341, 351, this court reviewed the decision in tax cases similar to the one at bar, and said “ the record showed at least a divestiture of the title and a vesting of that title in the purchaser at the tax sale.”

Although the adjudication to Delano, as set forth in our statement of the facts, may not have vested title in him, it notwithstanding may have been a title enough to warrant an assessment in the name of Delano, the purchaser, whose deed had been duly registered when the assessment was made.

We quote from the opinion in Augusti vs. Citizens Bank, 46 An 529, 535: “ Titles that are intrinsically null if permitted to remain unquestioned, may become the basis of an assessment that will result in a valid sale.”

It does not appear that plaintiffs, owners of the original title, remained in possession after the tax sale.

The defendants, or those who preceded them as owners, have paid all the taxes that have been paid; have brought suit to cancel tax privileges on the property since 1877.

By the tax sale and all the presumption it creates, it devolved upon plaintiffs to bring suit within a reasonable time.

After so many years of possession solemnly guaranteed by statutes; after a number of sales, it was too late to sustain asserted flaws in the title.

Under the law and its interpretation in a number of decisions, only one alternative is left us, that is to affirm the decision of the-District Court.

It is ordered, adjudged and decreed that the judgment appealed from is affirmed.

ON Application for Rehearing.

We have re-examined the issues and have found no reason to change our decision.

An assessment had been made of the property in the name of one who, it may be, was not the owner.

The plaintiffs, in their petition, allege that the pretended title of Wm. Henry, the one in whose name the property was assessed, was acquired from W. J. Delano, on May 19, 1877, but that Delano, the vendor, at the time had no title.

We grounded our decision upon the assessment as made. We thought, and still think, that under the jurisprudence of this court, based upon the curative acts of the Legislature, the assessment and sale were legal enough to enable the defendant to acquire the right he claimed.

In the matter of Orloff Lake, 40 An. 142, the assessment was m de in the name of one whose title, if any he ever had, had never been recorded. The court sustained the sale, and decided that the curative act was conclusive evidence in regard to the regularity of the assessment. An assessment had been made, and no question of irregularity could be raised.

In the case in hand, the one in whose name the property was assessed had a title — whether legal or illegal, it was of record and served as a basis for an assessment.

The decisions of the Supreme Court of the United States recognize the force of curative acts in matter of the tax title. From one of the decisions of that exalted tribunal we copy:

We do not feel at liberty to disregard the plain intention of the acts of Congress. We are not unmindful of the numerous decisions of State courts which have construed away the plain meaning of statutes providing for the collection of taxes, disregarding the spirit •and often the letter of the enactments, until of late years the astuteness of judicial refinement had rendered almost inoperative all legislative provisions for the sale of land for taxes. The consequence was that bidders at tax sales, if obtained at all, were mere speculators. The chances were greatly against their obtaining a title. The least error in the conduct of the sale, or in the proceedings preliminary thereto, was held to vitiate it though the tax was already due and unpaid. Mr. Blackwell in his Treatise on Tax Titles says: That out of a thousand cases in court (of tax sales) not twenty have been sustained. To meet this tendency of judicial refinement very many States have, of late, adopted very rigid legislation. The acts of Congress we are considering must have had it in view. Hence the stringent provisions they contain * * There is no possible excuse for not enforcing such statutes according to their letter and spirit.’ ” De Treville vs. Smalls, 98 U. S. 525.

In the second place, the question of long silence, in regard to the title, and the neglect to pay taxes was considered by us as having a bearing upon the issues.

This court said, in Michel vs. Stream, 48 An. 341: “ From this it will be seen that the Code recognizes the existence of ‘an abandonment,’ as it were, of the right of even the constructive or civil possession, resulting from ownership * * affecting materially the rights of the owner.”

With reference to a title this court said in Cavalier vs. Moss, 2 An. 584: “They (plaintiff and defendant) are of equal condition, and the defendant can not be evicted by a title not superior to his own:” citing in support Pothier, Droit de Propriete, No. 294.

In Hooter vs. Tippet, 8 Martin, N. S. 637, this court considering a matter of title, said: “Under such circumstances we consider the pretensions of each about equal in law and equity, and the defendant being in possession can not be disturbed.”

Applying these principles also, we reached the conclusion before handed down. Land holders must pay some attention to their taxes.

“ After so many years the doctrine of ‘abandonment’ applied.” Stewart vs. Schonfeldt, 13 Sargent & Rawle, 360.

The rehearing is refused.

Nicholls, 0. J., absent; ill.


text:
    No. 12,327.
    A. Aronstein et als. vs. John F. Irvine.
    A wife separate in property from her husband died leaving minor heirs and real and personal property. The husband as natural tutor administered her succession. At sale provoked by tutor to pay debts, the tutor, individually, purchased the real property. Held: This purchase, in direct violation of a prohibitory law, is an absolute nullity; there was no contract of sale, no price, no acquisition of property: the title of the tutorship was never divested. It was nota sale merely voidable; it was void ab initio; it never existed.
    In such case the heirs have an interest in pursuing the property wherever found, and it is no barrier to this pursuit lo say that the wife’s succession is insolvent.
    Subsequent sales of this property by the tutor are likewise absolute nullities, conveying no title. The under-tutor, one of these vendees, can not claim to be possessor in good faith, but must be held to be a buyer aware of the danger of eviction, who purchased at his peril and risk, and therefore without standing to demand restitution of the price.
    APPEAL from the Thirteenth Judicial District Oourt for the Parish of West Feliciana. J. EC. Stone, J. ad hoe.

      S. MeC. Lawrason for Plaintiffs, Appellees.

      Olivier 0. Provosty for Defendant, Appellant; Isaac D. Wall for J„ Freyhan & Oo., Warrantors, Appellants; H. & 0. Newman, War-rantors, Appellees.
    Argued and submitted April 13, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Blanchard, J.

This case is before the court for the second time.. The first time it was here on appeal by plaintiffs from a judgment, sustaining an exception filed by defendant, and dismissing the suit.. For reaso'ns assigned in 48 An. 302, this court reversed that judgment, ordered the reinstatement of the case, and that it be proceeded with according to law.

It is now on appeal by defendant from a judgment in favor of plaintiffs, decreeing the nullity of defendant’s purchase of certain, immovable property, and also on appeal by the warrantors from a judgment condemning them to restore to defendant the purchase price of the property in question.

The plaintiffs are the children and heirs of Mrs. Louisa Aronstein, who died intestate, in the parish of West Feliciana, in 1878. She was separate in property from her husband, and at her death left a small estate of real and personal property. Her children were all minors, and her husband, Julius Aronstein, qualified as natural tutor. While his name was Julius, he.had, according to his own testimony, many years before “Americanized''’ it by calling himself Joseph, by which name he was known in the community.

The dead woman owed debts. No administrator, however, was appointed; the tutor administered the succession. An inventory was taken. It showed four hundred acres of land, known as the Neville plantation, valued at one thousand dollars, and personal property of the value of eight hundred and thirty dollars. Defendant John F. Irvine was appointed and qualified as under- tutor.

In course of administration, the tutor obtained an order to sell the property to pay the debts of the succession. The movables brought seven hundred and thirty dollars. The Neville plantation not selling at first offering, was readvertised, and sold on twelve months’ credit, for five hundred and one dollars.

Following the sale a year later, the tutor filed a final account and tableau of final distribution.

The proceeds of the movable property were applied to the partial payment of privileged claims, including three hundred and fifty-six dollars and ten cents which was retained by the tutor in his hands as a homestead fund for the minors.

The proceeds of the sale of the plantation were applied to the payment in part of a note held by the Metropolitan Bank of New Orleans, secured by vendor’s privilege and special mortgage on the property.

This bank and one other creditor filed oppositions to the account and tableau, contesting mainly the homestead allowance of the minors.

These oppositions were denied and the account and tableau homol - ogated. This was in December, 1880.

Nothing further has ever been done in the succession.

In 1895, certain of the heirs of Mrs. Aronstein having become of age, and others emancipated by marriage, joined in this suit, to which also the three youngest minor children, alike forced heirs with plaintiffs, were made parties plaintiff, through the appointment of a special tutor. The father and tutor, Julius Aronstein, was still liv-* ing, but the appointment of the tutor ad hoc was deemed necessary because of alleged antagonistic interest on the part of the father in the outcome of the suit.

* When the Neville plantation was sold at succession sale in 1879 to pay debts, the purchaser thereof was Julius Aronstein, the tutor and administrator. He bought in his individual capacity. He was not surviving partner in community. His purchase was in contravention of a prohibitory law, and is attacked in this suit by the heirs of the wife as an absolute nullity. So, too, are all subsequent transfers of the property, and especially the one under which defendant, who was and is under-tutor, claims.

Defendant’s title to what is called the Wederstrandt property is also attacked. This is a piece of ground some two acres in extent, with a dwelling, gin house and other improvements thereon. It belonged to Mrs. Aronstein, but while she was still living was sold at tax sale and adjudicated to H. & O. Newman, whose purchase was subsequently, under the then existing law, confirmed by the Auditor of Public Accounts. This property, some time after the Newman purchase at tax sale, and long subsequent to the death of the wife, was transferred by Newman to defendant, who, in 1886, sold it to Julius Aronstein. The latter failed to pay the purchase price, and in 1891, under foreclosure of the mortgage which had been retained, defendant reacquired the title.

The prayer of the petitioners is that both pieces of property be decreed to belong to them as heirs of their deceased mother, and for judgment for the fruits and revenues thereof.

The judgment of the court a qua sustained plaintiffs’ demand as to the Neville plantation, but rejected it as to the Wederstrandt property. Plaintiffs’ claim for rents and revenues on the Neville place was held compensated by defendant’s claim for improvements and betterments placed thereon, and for taxes paid.

Defendant was awarded a judgment against J. Freyhan & Oo. for eight hundred and ninety-five dollars with five per cent, per annum interest from January 14, 1885, on his call in warranty against them as his vendors.

I.

We will first dispose of plaintiffs’ contention as to the Weder-strandt place.

Their claim to this property can not be sustained. Their mother owned it; it was assessed to her for taxes; and she defaulted on the taxes due for the year 1875.

With due formality it was offered at tax sale and purchased by H. & C. Newman. A tax deed was. made to them and confirmed by the Auditor.. All this was before the death of Mrs. Aronstein.

The fact that after Newman’s purchase the tax debtor was permitted to remain on the property is, at the worst, but a suspicious circumstance, not sufficiently supported otherwise, to affect the verity of the transaction. She doubtless held for Newman under an arrangement satisfactory to both. The same is true of the possession of this property by the husband after the death of the wife. He does not pretend to have held it for himself, and he never did deny or contest Newman’s ownership. When the wife died this property was not inventoried as belonging to her succession.

Subsequently, Newman sold to defendant, and the following year defendant sold it to J. Aronstein, who never did pay for it and who lost it under foreclosure of mortgage, his vendor buying it back. While there are some circumstances connected with this property, disclosed by the record, that give color to the claim of the heirs that it should have been regarded as the property of their mother and redeemed from the tax sale for account of her succession, the same can not be held strong enough to overthrow the tax title and subsequent transfers.

II.

As to the Neville plantation the situation for defendant is more grave and serious. He, the under-tutor, is found in possession as proprietor of the only piece of real property owned by the dead woman’s succession.

And it comes down to him through transfers from the husband and tutor, who, without interest as partner in community, purchased at succession sale of the wife, provoked by him in his capacity as tutor administering the succession. This purchase by the tutor was in direcD violation of the prohibition contained in C. C. 1146 and 1790 and must be held absolutely null and void. Heirs of Wood vs. Nicholls, 33 An. 746; Succession of Stanbrough, 37 An. 275.

It was a transaction flagrantly offensive as contravening positive law. Indeed, it was an active violation of a law made to regulate the tutor’s conduct in a fiduciary capacity.

His pretended purchase at the wife’s succession sale was no purchase at all. It is manifest there was never any contract of sale, and the tutor never acquired any title. There was no price paid, for there was no sale. The- title of the tutorship was never divested. The property never has ceased to be that of the dead wife. Heirs of Wood vs. Nicholls, 33 An. 750.

It was not a sale merely voidable; it was void ab initio. It never existed.

The money that was paid to the Metropolitan Bank, as the pretended proceeds of this sale, can be viewed in no other light than as money paid by the tutor for the benefit of his wards, and for which an equitable claim exists in favor of the tutor, which, in a case like the present one, may be held to inure to the benefit of parties who may have dealt with the tutor in his individual capacity in reference to the property.

If this be so, if the title has never passed out of the tutorship, the heirs have an interest in pursuing it wherever found, and it is no barrier to this pursuit to say that the wife’s succession is insolvent. Aronstein vs. Irvine, 48 An. 304.

Whether it be insolvent or not is a matter that does nob concern this defendant, who is in possession of property of the tutorship without title or warrant of law, and whose status is little better than that of trespasser.

So far as the major and emancipated heirs are concerned, the suit is an unconditional acceptance of the succession. Heirs of Burney vs. Ludeling, 41 An. 632.

But this is not the place to anticipate questions that may possibly arise between chem and the creditors. It will be time enough to do this when these questions arise, if they ever do, and full reservation in this regard is made.

No part of the pretended proceeds of the sale of this property was reserved by the tutor on account of the minors’ “ homestead fund ” as the same appears on the account filed in the tutorship, and it is difficult to see how the assertion at the time of this homestead claim by the tutor on behalf of the minors can now estop them from showing that this piece of real property has never been disposed of, and that title to same is still in the tutorship, which has never been, closed, and in the heirs.

The year after Aronstein, father and tutor, purchased or pretended to purchase the Neville plantation, at the succession sale of his wife, he made a vente ó. réméré of the property to J. Freyhan & Co. for one thousand dollars. This act was really a pledge as security for advances made and to be made to the vendor. Aronstein remained in possession. He paid back no part of the one thousand dollars, but instead received further advances of eight hundred dollars from Freyhan & Oo., and in consideration thereof the following year executed another act in which he renounced his right of redemption and consented that the title of Freyhan & Co. to the plantation be considered absolute. But still the pretended vendor remained in possession, paid no rent, and was permitted to use the revenues of the place toward settlement of his indebtedness to his vendees, represented by the purchase price of the sale.

This condition of affairs continued down to the beginning of the year 1885, when Freyhan & Co. conveyed their interest in the property to defendant for eight hundred and ninety-five dollars, without warranty.

It is shown that this eight hundred and ninety-five do lars was the balance due Freyhan & Co. by Aronstein. In other words, he had ■ returned to them all of the eighteen hundred dollars which figured as the price of their purchase of the property, except this eight hundred and ninety-five dollars.

Irvine paid this, not in cash, as alleged in the deed, but later met his notes given for same, and became the nominal owner of the plantation.

But Aronstein remained in possession still. He had become largely otherwise indebted to Irvine, and the conclusion is irresistible that the latter paid the remaining claim of Freyhan & Oo. on the property and took title, the better to secure his claim against Aronstein if not for the sole purpose of protecting it. Something over a year after Irvine had thus acquired title to the Neville place from Freyhan & Oo. he executed an act of sale of it to Aronstein for five thousand dollars, all on a credit, in notes with mortgage retained. The evidence shows that this price was arrived at by calculating the amount which Aronstein owed Irvine at that moment.

The latter appears to have paid nothing on the notes representing this purchase price and in 1891 the mortgage was foreclosed, and at the sale defendant became the purchaser of the plantation for two thousand two hundred and fifty dollars. Then, for the first time, he tookact ual possession, and from that time, March, 1891, until now lias enjoyed the revenues of the place.

In the act of sale from Freyhan & Co. to defendant of this property, January 14, 1885, it is stated that the property sold (after describing it) is the same transferred by J. Aronstein to the vendors on April 28, 1880. And, looking at this latter transfer, we find it there stated that the property sold is that acquired by J. Aronstein at the succession sale of his deceased wife.

None of these transfers can be regarded as otherwise than absolute nullities. Meyer vs. Farmer, 36 An. 788; Chaffe vs. Meyer, 34 An. 1031. Freyhan & Co. must be held as charged with full knowledge that Aronstein had no title when they bought from him, even if we consider that transaction a sale, for the reason that not only does the act of sale itself show the origin of their vendor’s pretended title, but Morris Wolfe, one of the partners, was one of the appraisers appointed in Louisa Aronstein’s succession, and, as such, officially participated in appraising the Neville plantation as the separate property of the wife, and as such listed on the inventory of her succession.

A fortiori must the defendant be held as knowing absolutely the want of title in both J. Aronstein and Freyhan & Co. Not only did the recitals of the sale from his vendors, Freyhan & Co., give him notice that they derived title from Aronstein and sold to him without warranty, but he (defendant), as under-tutor, was bound to know that this property was the separate property of the wife’s estate, and that the tutor of the wife’s minor heirs was forbidden by law to purchase it at succession or tutorship sale.

It follows that whatever possession Freyhan & Co. had of this property was in bad faith, and that at no time has defendant, Irvine, ever had the shadow of a claim to be considered a possessor in good faith. C. C. 3452; Chaffe vs. Farmer, 34 An. 1020. Both must be held to be buyers aware, at the time of their respective purchase, of the danger of eviction, and, -thus, to have purchased at their peril and risk.

As a consequence, neither can claim restitution of the price of these sales. C. C. 2505; Railroad Company vs. Jourdain’s Heirs, 34 An. 648; Meyer vs. Farmer, 36 An. 789.

Defendant, being in the sense of the law a possessor in bad faith, is bound to restore the fruits and revenues of the property, dating from the time of his possession, which, in this ease, was the beginning of the year 1891. Heirs of Wood vs. Nicholls, 33 An. 750.

Though a possessor in bad faith, he is entitled to have reimbursed to him all he necessarily expended for the preservation of the property. C. C. 2314.

As to constructions and works of improvement made upon the plantation by defendant with his own materials, the restored owner, keeping the same, must pay defendant the actual present value of the materials and workmanship. Heirs of Wood vs. Nicholls, 33 An. 745; C. C. 508.

The judgment appealed from compensates plaintiffs’ claim for rents and revenues against defendant’s claim for improvements and bet-terments and for taxes paid, and we think this does substantial justice between the parties.

It was urged in defence that the father and mother of plaintiffs were not separate .in property. The record of a suit for separation of property and for judgment in the wife’s favor for paraphernal funds which passed into the husband’s hands is found in the record. This suit was filed in 1868, and there was judgment in favor of the wife on her demands, on which judgment a writ of fi. fa. issued, etc.

It is also urged as defence that Joseph Aronstein, father and tutor, was not the person who purchased the real property at the wife’s succession sale.

The sheriff who sold the property as auctioneer, executed deed to J. Aronstein, and the evidence establishes conclusively that J. Aron-stein was Julius Aronstein, alias Joseph Aronstein, the father and tutor. It was this same father and tutor who, after his purchase at the tutorship or succession sale, sold the property to J. Freyhan & Co., who, in turn, later, sold to defendant. There has been in the parish another person by the name of Julius Aronstein, a nephew of the father of plaintiffs, who became demented, was interdicted and sent back to Europe. The testimony negatives any idea that he was the purchaser at the succession sale of the wife, and the identity of Julius Aronstein as the father and tutor of plaintiffs, and also as the Joseph Aronstein, who appears as vendee in a sale from defendant, is sufficiently established.

Under the view of the case hereinbefore announced, it is clear that the prescriptions of three, four, five and ten years, invoked by defendant, have no applicability.

It would not be equitable to allow plaintiffs to recover the property of their ancestor without making restitution of their proportionate share of whatever sum of money may have been actually realized from its pretended sale and applied to the payment of the debts of the deceased. It was so held in Heirs of Burney vs. Ludeling, 41 An. 632.

Plaintiffs recognize this, as shown by the following excerpt taken from the brief filed on their behalf:

“ In this case Aronstein paid money for the benefit of these heirs, which freed their property from a vendor’s privilege, and he should be reimbursed. If the suit were against him, he would no doubt reconvene for the amount. Defendant has not done so. We are willing that he, as the last transferee of this property, should have the benefit of this payment, and have returned to him an amount of money equal to that paid the Metropolitan Bank, without interest. * * * * We will not urge that defendant shquld look for relief to his true warrantor, Aronstein, as we might. We will not insist that this case does not come within the doctrine of Daquin vs. Coiron, 6 M. N. S. 684, where it was said that the several vendors having been cited in warranty, the case stood as if the suit had been brought against the first purchaser, and the heirs should repay the money which had been applied for their benefit.”

Accordingly, we will, in our decree, apply the principles of equity referred to, and give effect to the willingness expressed by plaintiffs in this regard. •

It is therefore ordered and decreed that the judgment appealed from, in so far as it decrees recovery by defendant of the sum of eight hundred and ninety-five dollars, with five per cent, interest from January 14, 1885, and costs, against J. Preyhan & Go., on the call in warranty, be annulled, avoided and reversed, and that the demand of the defendant on this call in warranty be rejected at his costs.

It is further ordered and decreed that in other respects the judgment appealed from be amended by permitting the defendant to hold possession of the Neville plantation until the plaintiffs herein and the minors represented by Robert Montgomery, tutor ad hoc, pay over to him, without interest, a sum of money equal to their proportionate share of the amount, say, the sum of five hundred and one dollars, applied in the succession of Mrs. Louisa Aronstein to payment on the note secured by special mortgage and vendor’s privilege on said plantation held by the Metropolitan Bank of New Orleans, as shown by the account and tableau of distribution filed in said succession, and that as thus amended the said judgment be and is hereby affirmed, costs of appeal to be borne by defendant.

Nicholls, O. J., absent; ill.