text:
    No. 802
    First Circuit
    SLIMAN v. MAHTOOK
    (October 7, 1931. Opinion and Decree.)

      Williams & Blackshear, of Oberlin, attorneys for plaintiff, appellee.
    L. J. Mayeux, of Oberlin, attorney for defendant, appellant.
   LeBLANC, J.

In a former suit between these same parties, judgment had been rendered in favor of the plaintiff, K. Sliman, decreeing him to be the owner of certain property, but there also was a moneyed juugment in favor of the defendant, B. Mahtook, on a reconventional demand, in the sum of $411.65, with interest and costs. Mahtook then obtained a writ of fieri facias on his judgment, under which Sliman’s property was seized and advertised for sale. The latter paid all costs involved in the former suit, and also paid the sum of $150 on account of said judgment. He had in the meantime ¡purchased two certain bank checks made and drawn by Mahtook, one for the sum of $146.73 and the other for $146.35, both in favor of Elias Bakery in payment of liquidated claims, on both of which the respective banks on which they were drawn refused payment on the ground that there were not sufficient funds to meet them. These two checks, as well as the amount paid by him as costs, Sliman pleaded in compensation against the judgment which Mahtook. was attempting to execute against him. He obtained a rule for a preliminary injunction which does not seem to have been contested, and the court accordingly granted the injunction arresting the sale of the property. Mahtook then appeared to answer to the merits, and urged in defense that the two checks could not be pleaded in compensation, as the purported obligation they were said to represent was not liquidated, and also that, not having been acquired by Sliman in due course, he had a right to plead the same defense against them as he had against the original holder who could not have enforced any obligation on them as they were given in payment for syrup which turned out to be bad and worthless. ■

From a judgment in the lower court which held that the two checks could properly be pleaded in compensation, and which rejected the other defense that they were without consideration as having been given in payment of defective syrup, the defendant, Mahtook, has appealed.

The ruling of the court that compensation could be pleaded b(y this plaintiff was ' undoubtedly correct. Compensation is a form of payment which takes place by mere operation of law, witnout the knowledge of the debtor, and “the two debts are reciprocally extinguished, as soon as they exist simultaneously, . to the amount of their respective sums.” Civ. • Code, arts. 2207, 2208; Caldwell v. Davis, 2 Mart. (N. S.) 135. Civil Code, art. 2210, further provides that it takes place “whatever be the causes of either of the debts.” The law makes no distinction between the different forms of debt; the principal requirement being that they be “equally liquidated and demandable.” Civ. Code, art. 2209. In Caldwell v. Davis, cited supra, it was the creditor’s note which the debtor had purchased and was pleading in compensation. In Pattison et al. v. Edmonston et al., 4 La. Ann. 157, it was their judgment creditor’s own judgment which the judgment debtors had bought and successfully pleaded in compensation. In the very recent case of Hart v. Polizzotto, 16 La. App. 444, 171 La. 493, 131 So. 574, the Supreme Court held that a person, although only sec- • ondarily liable on a note which he had paid, could plead the same in compensation- against a judgment rendered against him for costs of court. If the forms of obligations relied on in the eases referred to constituted debts equally liquidated and demandable with a judgment, it would seem that a bank check, which is an unconditional order to ¡pay money and constitutes an assignment of the funds it is drawn against the moment the bank is notified of the drawing, creates a debt which is as fully liquidated and demandable and is of equal dignity with the others.

Compensation may be pleaded at every stage of the proceedings, provided it be specially pleaded, and it may be pleaded either in answer to the principal demand or claimed in a separate and distinct demand. Code of Practice, arts. 367, 368. In Pattison et al. v. Edmonston et al., cited supra, it was made the basis of an injunction, as in this case, to prevent the execution of a judgment against which it was being pleaded. This case alone seems to be sufficient authority to support the ruling of the lower court on this question.

This brings us to a consideration of the second ground of defense urged by the defendant that he owes nothing on the checks held by plaintiff as they were given in payment for syrup which he bought from Elias Bakery at New Iberia, most of which turned out to be sour and spoiled and was returned by him. He avers that under an agreement between them he was to be given credit for the amount returned, all of which credit had accrued long prior to the purported sale of the two checks to the plaintiff.

It does not appear that Sliman claims to have acquired the checks in due course, as he alleges in his petition that payment on both had been refused by the bank. Besides, the notarial act by which they were transferred to the plaintiff shows that this was done long after their respective- dates. They are therefore subject to the same defenses as they would have been in the hands of the original payee, and Mahtook may properly avail himself thereof.

This last defense he makes involves a question of fact oh which there is much conflicting testimony. The defendant testifies that he had been buying syrup by the truckload from Elias Bakery, to whom he gave his check for each truckload, but that they were not to be presented for payment until the syrup had been retailed, when he would return for another truckload.' The two checks here involved were issued under the same conditions and with the same understanding, but it turned out that some of the syrup for which they had been given, as well as some previously purchased, soured, and he was obliged to take back a large amount of it from his customers. He states further he returned on one occasion 215 gallons of it and on another 43 gallons to Elias Bakery, who agreed to credit his account or checks for that much, and that, on the return of the last 43 gallons, Elias, proprietor of the bakery, told his truck driver not to return any more of the spoiled syrup, but to keep account of what was returned by his customers, and he would be given credit for it. He claims that the total amount of credits thus due him would more than balance the amount of the two checks in question.

Defendant’s son and other witnesses also testify about the return of the 215 and the 43 gallons of syrup to Elias Bakery in New Iberia on two different occasions, and those of them who speak it say that Elias told them in the Syrian language to tell Mahtook that he need not return any more of the sour syrup but to take credit therefor according to his own accounting.

All of this is flatly contradicted by Elias, proprietor of Elias Bakery, who also denies that he ever agreed to allow any credits for the return of defective syrup. It is somewhat singular that the first complaint' made about the syrup arose with the filing of this suit. Elias had frequently made demand on Mahtook for payment of the checks, and, although given other excuses for the delay in payment, never was told anything about the syrup being bad. It • is also significant that, in the face of the agreement which he says he had with Elias he would be given credit for these checks, Mahtook would have left them outstanding for so long a period, during which time they came into the possession of the plaintiff. The latter, after he acquired them, also demanded payment, and again there is no complaint made to him that they were given in payment for syrup that was not merchantable. Finally, we have the testimony of Mr. Bennett Yoorhies, prominent attorney of Lafayette, La., taken under commission, from which we learn that at one time he held the checks for collection, and that, on demand being made, defendant called at his office, and, after admitting that he owed the checks,' pleaded with him for more time in which to pay, because he had been ill. He made no complaint about the claim; merely stating that he was unable to pay and asking further indulgence.

The rule is that, in cases where there is a conflict of. testimony, much reliance will be placed on the finding of the trial judge. We do not think that it can be said that the learned judge erred in holding that the circumstances and presumptions in this case produced a preponderance of evidence in favor of the plaintiff.

The judgment sustaining the plea of compensation and perpetuating the injunction which had issued was correct, and is therefore affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,370
    Orleans
    REINER v. POTTER
    (October 19, 1931. Opinion and Decree.)
    Max Schaumburger, of New Orleans, attorney for plaintiff, appellant.
    Chas. V. Gonzales and' James O’Conner, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The plaintiff in this case, Morris Reiner, alleging the defendant, William J. Potter, to be indebted tó him in the sum of $903.78, caused a writ of attachment to issue, and garnished certain funds in the hands of the Jefferson Parish Fair, Inc.

There was judgment dismissing plaintiff’s suit and dissolving the writ of attachment. Plaintiff has appealed.

Reiner conducts a loan office in the city of New Orleans, and Potter is either the owner or trainer of race horses, which, at the time that this claim is said to have originated, were running at the Jefferson Race Track. An agreement was entered into by virtue of which Potter would supply Reiner with certain information, or tips, on horses trained by him and Reiner would bet a certain amount for himself and a certain amount for defendant, advancing the money for both bets. When the horses won, as they sometimes did, the winnings would be divided on a pro rata basis and, when the horses lost, as they frequently did, a check would be given by Reiner to cover the amount of the losing bets.

There is no dispute concerning this arrangement, except that plaintiff claims that defendant had often asked that a larger sum be wagered for his account than the agreement called for, and it is for these alleged additional advances that plaintiff claims a balance due him in the sum of $700.

On the record before us we are unable to say that there is any amount due Rein-er on account of their horse racing venture. No account appears to have been kept by either party, and each claims a balance in his favor. Certainly the evidence does not preponderate in plaintiff’s favor.

The balance claimed, $203.78, is said to represent the value of a trunk sold to Potter by Reiner. Potter says that this trunk together with a watch was given to him as part payment of his share of a large and successful bet collected by Reiner. This statement is vigorously denied by Reiner, who insists that he sold the trunk to defendant, who purchased it for account of his wife. It appears, however, that after the alleged purchase and sale of the trunk Reiner continued to pay off winning bets without deducting the price of the trunk and on one occasion paid him in that way as much as $500 without asking or reserving payment for the trunk. Under the circumstances we are of the opinion that plaintiff has also failed to establish his claim for this item.

Our conclusion is that the judgment of the trial court is correct; consequently and for the reasons herein assigned the judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 13,665
    Orleans
    R. P. FARNSWORTH & CO., INC., v. CHOPIN
    (October 19, 1931. Opinion and Decree.)

      F. Carter Johnson, Jr., of New Orleans, attorney for plaintiff, appellant.
    Hopkins & Talbot, of New Orleans, attorneys for defendant and plaintiff in re-convention, appellee.
   HIGGINS, J.

Plaintiff brings this action for damages to its. Ford automobile, and defendant reconvenes for damages .to his Chrysler car alleged to have resulted from an intersectional collision between them at the corner of Maple and Adams streets, on December 25, 1929, at 10:30 a. m.

There was judgment dismissing both demands, and plaintiff only has appealed. Defendant and plaintiff in reconvention has not answered the appeal, and therefore the judgment of the lower court denying the claim in reconvention is final.

The remaining issues are: First. Was the driver of defendant’s car at fault and if so, second, was the driver of plaintiff’s car guilty of contributory negligence?

Plaintiff charges that defendant’s driver was at fault in operating the Chrysler car at an excessive rate of speed, without keeping a proper lookout, and in failing to accord •to the driver of its automobile the right of way provided by traffic ordinance 7490 C. C. S., plaintiff’s car having pre-empted the intersection, and thereby acquiring the right to continue on its course.

Defendant contends that the driver of plaintiff’s automobile was negligent in not keeping a proper lookout; in driving at an excessive rate of speed; and in not respecting the right of way granted to defendant’s car by traffic ordinance 7490 C. C. S., since it was approaching from the right.

Plaintiff’s Ford car was being driven by its employee, a boy of fifteen and one-half years of age, in the direction of the lake on Adams street, which is a graveled roadway running from the river towards the lake. Defendant’s Chrysler car was proceeding uptown on Maple street, which is a paved thoroughfare extending from uptown to downtown, and was being driven by his. employee, a boy seventeen years of age. The streets intersect at right angles, and neither is a right of way street under the traffic ordinance. The cars collided in the intersection, causing the damages complained of.

There were three eyewitnesses to the accident, the two drivers and a Mr. Manmelli, a disinterested witness. The testimony of the two drivers is hopelessly in conflict,, both claiming that they had the right of way under the traffic ordinance, charging each other with excessive speed, and each denying that he was going too fast, but both admitting that they did not sound their horns.

Mr. Manmelli, plaintiff’s witness, stated that he was standing on the uptown river corner of the two streets, and observed the approach of the two automobiles; that both cars approached the intersection at about 25 miles per hour, without either driver sounding his horn or slowing up; that there was a two-story building on the downtown river corner which prevented both drivers from seeing each other until at the corner; that the cars entered the intersection at about the. same time, and collided slightly past the middle of Maple street towards the lake; that the driver of defendant’s car attempted to avoid the accident by swerving to his right, but that plaintiff’s car practically went straight across; that the left front fender and wheel of defendant’s car struck the right rear fender and wheel of the Ford; that the Ford car. then ran into the curbing and turned over on its side on the uptown lake sidewalk of Adams street, about ten feet from the corner; and that the Chrysler came to rest several feet further than the Ford on Adams street towards the lake.

We do not think it is. necessary to determine which car had the right of way under the traffic ordinance, because that right would not relieve either driver of the duty of exercising due care and precaution in approaching the intersection. The traffic ordinance, after providing for certain right of way streets, provides in article 1, subsection G, as follows;

“The right of way herein given shall not be construed to mean that vehicles may be driven through street intersections in a reckless manner or at a speed beyond control, nor that they may take advantage of such right of way to drive through intersections regardless of the rights of vehicles on intersecting streets. The right of way given applies only where two vehicles approaching intersecting streets arrive at the intersection at approximately the same time, and does not authorize the vehicle traveling on the right of way street to disregard the rights of vehicles which have already entered the intersection from an intersecting street.’’

The ordinance after fixing certain speed limits further provides, in article 2, section 6, as follows:

“Nothing in the foregoing sections shall be so construed as to mean that vehicles shall not at all times be driven with due regard to the rights and safety of others on the public streets, or that the speed may at any time be greater than is safe and proper under the conditions then obtaining.
“Any person who shall drive any vehicle in a manner to endanger the safety of others, on public streets or in disregard of the rights of others shall be deemed guilty of reckless driving, and be subject to the penalties provided for the violation of this ordinance.’’

We are convinced that the cars approached the intersection at about the same time, and that each driver was guilty of negligence which proximately contributed ■to the accident. They were both at fault in not sounding their horns and in driving at an excessive rate of speed while approaching the intersection when their view of traffic crossing their respective paths was obstructed by the building on the corner. We are also of the opinion that neither driver slowed down as he approached the intersection, and that they were not keeping a proper lookout. Therefore, the collision was the result of the joint and concurrent negligence of both drivers. Hyman v. Salzer Plumbing Co., 18 La. App. 96, 135 So. 703; Tarleton-Gaspard v. Malochee, 16 La. App. 527, 133 So. 409, 411.

For the reasons assigned, the judgment appealed from is affirmed.


author:
MOUTON, J. LeBLANC, J.
      ELLIOTT, J.

text:
    Nos. 729 and 816
    First Circuit
    T. AUCOIN & SONS v. NAPOLEON YOUNG (TRICHE, Intervener)
    (January 26, 1931. Opinion and Decree.)
    (March 3, 1931. Rehearing Granted.)
    (June 16, 1931. Opinion and Decree on Rehearing.)
    (July 17, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    (November 3, 1931. Judgment of the District Court and Judgment of the Court of Appeal on Rehearing Avoided and Set Aside and Case Remanded for Further Trial.)
    ELLIOTT, J., dissenting.

      Pecot & Bauer, of Franklin, attorneys for plaintiff, appellant.
    Borah, Himel & Borah, of Franklin, and W. T. Gilmore, of Morgan City, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff alleges in its petition that on August 20, 1929, it acquired by authentic act of sale recorded August 21, 1929, in the book of conveyances of the parish ■ of St. Mary, a lot of ground from Aureluis Montet, who, it is averred, acquired title thereto by act of donation in 1904, from his. mother, Mrs. Gauthreaux, also, duly recorded; that Paul Triche, a resident of St. Mary, is in actual possession of the property without any title whatsoever thereto* on whom plaintiff immediately after its acquisition served notice to vacate the premises, but which he refuses to do.

Other allegations are made, but are left out of this opinion, not being pertinent to the issue presented for decision.

In his answer to plaintiff’s petition, Triche disclosed the fact that he held possession as tenant of Napoleon Young, who claimed to be owner, and who was substituted as defendant in the place of Triche, the latter intervening in the case on a claim for improvements he had made on the property.

Upon a motion for a writ subpoena duces, tecum filed by defendant, Napoleon Young, the following escrow agreement between plaintiff and Aureluis Montet, its alleged vendor, was produced, to-wit:

“Know all men by these presents: That T. Aucoin and sons, a commercial partnership composed of Joseph S. Aucoin and Albert N. Aucoin, residents of the parish of St. Mary,' Louisiana, and herein acting through and represented by Albert Au-coin; and Aureluis Mpntet also a resident of the Parish of St. Mary. .
“That T. Áucoin and Sons having this day by act of sale before L. O. Pecot, Notary Public, for the Parish of St. Mary, acquired a certain lot situated on the Public Road along the West bank of Bayou Boeuf and which said lot was acquired by Aureluis Montet in an act of donation from his mother, Mrs. M. A. Gauthreaux, and whereas the vendor has to deliver possession of the above described property to the vendee herein.
“It is agreed that until the said T. Au-coin and Sons obtain possession of said property from the present occupant; Paul Triche, whether the same be obtained by amicable delivery or by judicial proceedings, that the purchase price of $75.00 paid by the said Aucoin and Sons should re"main in escrow in the hands of the People’s State and Savings Bank of Morgan City, Louisiana; the purchase price to remain in escrow until the bank should have been informed in writing by L. O. Pecot to deliver said check to the said Aureluis Montet or his heirs.”

Upon the production of the foregoing document, Young and Triche filed an exception of no right and no cause of action, which was sustained below, and the suit was dismissed.

Plaintiff appeals.

In substance, the contention of defendants is that, under the stipulations of the contract, above reproduced, there was not a translation of the ownership of the property from Montet to plaintiff, who has therefore no legal title thereto, and consequently cannot bring this, a petitory action.

Judging from the citations of counsel for defendants, we understand their defense to be that the escrow agreement showed that there was not a sale, but a mere promise of sale, and hence there has been no transmission of title from Montet to plaintiff. This contention, we understand, is. based on the stipulation in the escrow agreement that the purchase price of $75 should remain in escrow in the hands of the Bank of Morgan City until plaintiff obtained possession of the property from Paul Triche, then the occupant; the position of defendants being that, until the price was paid, ■there could be no transfer of ownership to plaintiff, and hence no divestiture from Montet in whom the title remained.

Counsel for defendants cite Peck v. Be-miss, 10 La. Ann. 160, as the leading case on that proposition. In that case the land was sold “at ten dollars per acre; one-■third of which is to be paid cash, when possession is given, and the balance in one and two years,’’ etc. The court in commenting on that contract, said that Over-ton, who appeared as vendor through Sims, an a'gent, had “engaged himself to sell the land to Peck at a future time, and Peck engaged himself to purchase it when possession should be given, on the terms, of cash and credit designated in the instrument.” The court said that, until there was a voluntary execution of the agreement by Oyerton, or a forced execution “of the promise, the ownership did not pass to Peek.”

The court then enters into a discussion of the legal effects of a promise of sale, and quotes Marcade on this question where he justly remarks, says the decision, that:

“La promesse de vendre vaut vente, e’est a dire, oblige á passer le contrat.’”

In the Peck case, above cited, it will be noted that Peck bound himself to pay the one-third cash oí the price “when possession is given.” Possession, before payment of the cash, was made an essential stipulation of the contract.

In the escrow agreement above referred to it will be observed that it says that plaintiff, by a notarial act of sale passed the same day, had acquired the lot in contest. The agreement also says that the purchase price of $75 paid by plaintiff, Au-coin & Sons, should remain in escrow with the bank until notification by Pecot to deliver the check to Montet.

The escrow agreement, it will he seen, says until Aucoin & Sons, plaintiff, obtained possession from Triche, occupant of the premises, the purchase price should remain in escrow in the bank. There is. no stipulation, however, that the check of $75, the purchase price for the lot as fixed in the escrow agreement, should be paid when “possession is given,” which is the distinctive feature in the case of Peck v. Bemiss, supra, which evidently gave it the character of a promise of sale.

Counsel for defendants refer to other decisions in line with the Peck case, and which we find unnecessary to discuss in passing on this issue.

Let us suppose in the instant case that Triche had removed from the premises, and that Montet, claiming to have delivered possession, brought suit against plaintiff if the latter refused to pay the price. The demand of Montet could not be for anything else than for a dissolution of the sale or for the purchase price. Evidently, if brought on the resolutory condition for a rescission, the contract would be stamped as a sale. On the qther hand, if he sued for the purchase price and recovery was obtained on that demand, it is manifest that no decree would be needed requiring the execution of a sale to plaintiff to transfer ownership and possession, for the obvious reason that there had been a sale, and duly recorded, which being by public act for an immovable, carries tradition or aelivery. Civ. Code, art. 2479.

Counsel, in support of the contention that plaintiff did not acquire title, refer to Capital Building & Loan Association v. Northern Insurance Co., 166 La. 179, 116 So. 843; and to Lapene v. Badeaux, 36 La. Ann. 194.

The case in the 166 La. refers to judi-^ cial sales, where it has .been uniformly held that the adjudicatee must comply with the terms of the adjudication or else he is considered as never having been the owner. The same ruling is found in Lapene v. Badeaux, 36 La. Ann. 194.

These decisions hold that, where there is a refusal or a failure to pay the purchase price by the adjudicatee, he does not become the owner by the adjudication.

Conceding that the same rule applies in private sales, the escrow agreement in question does not show or indicate in the slightest degree that there was either a refusal or failure to pay the price by Au-coin & Sons, plaintiff and purchaser. On the contrary, it appears from the terms of the agreement that a check was deposited in the bank for the price which was. to be delivered to Montet on the written order of Pecot.

The defendants are undertaking to champion the supposed rights of Montet in urging the defense that he has not received the price for his lot of ground, while it appears from the allegations of plaintiff’s petition, which must be accepted as true under the exception, that Montet has made an authentic sale of his property which is now on file in the public records of the parish of St. Mary. •

In West v. Negrotto, 52 La. Ann. 381, 27 So. 75, the court held that defendant in a petitory action can set up an outstanding Title in a third person, but such title must be a valid, legal, subsisting title, better than that of the plaintiff.

Under plaintiff’s averment that he acquired the lot by an act of sale duly registered on the public records of the parish of St. Mary, and that the price had been paid and was deposited in escrow, all of which must be taken as true under the exception, it would scarely be logical to hold that Montet has an outstanding title legal, valid, and better than that of the plaintiff. In such a situation it must be held that the respective rights to that title which defendants are seeking to challenge is a matter which concerns plaintiff and Montet, and which cannot be. taken advantage of by defendants in a petitory action. Leathem & Smith Lumber Co. v. Nalty, 109 La. 325, 33 So. 354.

Counsel for defendants may contend that the decisions above cited apply to contests by defendants in a petitory action in reference to relative nullities, but that their defense is that the pretended .sale, as shown by the escrow agreement, was absolutely without effect as to transmission of ownership to plaintiff; that this involves an absolute and not a relative nullity. For the reasons hereinabove' given, we find that there was a sale, and not a mere promise of sale, under the alleged sale and escrow agreement which evinces a translation of ownership, and that therefore there is no merit in the contention of defendants to support their exception under their plea that the nullity referred to is absolute. Our ruling applies whether the defense be grounded on relative or absolute nullities.

Counsel for defendants refer to the case of Dover v. Atlas Assurance Co. of Lon. don, England, S. R. vol. 130, No. 10, Dec. 18, 1930, p. 828. In that case a deed be? tween Dover, plaintiff, and McDaniel was placed in the Sabine State Bank at Many, La., with a letter attached to the deed, as follows :

“Herewith annexed is deed from J. Dover to J.' L. McDaniel, which is. deposited with you to be delivered to said J. L. McDaniel, upon payment by him, of the sum of $12,000.00, which amount is to be placed to. the credit .of J. Dover, Florien, Louisiana.
“Signed, J. Dover
“J. L. McDaniel.”

In that case McDaniel failed to pay the $12,000, and the court held, under the facts, as therein presented, that there had been no sale or transfer of ownership.

. In commenting on the evidence, the court said:

“We have the uncontradicted testimony of both .the vendor and vendee that delivery of the deed should be concurrent with the payment of $12,000.00, and the further evidence of the written letter to that effect attached to the deed.”

Further the court says:

“And the failure to pay the price and receive the delivery of the deed fails to change the ownership of the property.”

This is not the situation here, where it clearly appears by the escrow agreement that the price was paid by check placed in the bank where it was to remain in escrow subject to the written order of L. O. Pecot, and where it is shown also that Montet had, by authentic act of sale duly recorded, transferred ownership of the property to plaintiff.

In order to get at the meaning of the parties so as. to make a correct application of the principle of law which should govern this case, it is proper to refer to the wording of the escrow agreement where it says that: “It is agreed that until the sa5d T. Aucoin and Sons obtain possession of said property from the present occupant, Paul Triche,” whether obtained amicably or by judicial proceedings, the purchase price of $75 paid by the said Aucoin & /.Sons shall remain in escrow in the hands of the bank. This stipulation in the escrow agreement shows that plaintiff had taken upon itself to obtain actual possession from Triche, amicably or judicially. The suit by plaintiff herein shows that it undertook to obtain that possession by judicial process from Triche which by the allegations of the demand plaintiff considered a mere occupaht or trespasser.

The vendor of the plaintiff, Aureluis Montet, had certainly done as much as was in his power to transfer his possession to the lot by the authentic act of sale which he had permitted to be spread on the public records, and also his ownership therein by that deed. It was-, not possible, for him to do more for the transmission of title thereto.

The contract, as. appears by the escrow agreement, imposed on plaintiff the duty of obtaining the actual occupancy of the premises from Triche. This part of the agreement created reciprocal rights and obligations between Montet and plaintiff, in case plaintiff failed by negligence or from some other unjustifiable cause to obtain that possession, amicably or by judicial process, if it could not be otherwise arranged. On the other hand, if posses: sion was obtained by one method or the other, as directed in the contract, and plaintiff refused to order the delivery of the check by the bank, in either contingency above pointed out, plaintiff and Montet would be the only parties concerned. Such issues cannot be taken advantage of by defendants in a petitory action under the authorities above cited to which the issues of the case logically revert. The contract between Montet and plaintiff was a sale, and was not a promise of sale or other contract, as above stated.

Por the foregoing reasons, we hold that the exception of no cause and right of action was improperly maintained.

It is therefore ordered, adjudged, and decreed that the judgment be avoided and reversed, that the exception be overruled, and the case be remanded for trial on the merits, and be proceeded with according to law; appellee to pay the cost of appeal, those of the lower court to await the final decision of the case.

ON REHEARING

LeBLANC, J.

Our further consideration of the question raised under the exception of no cause of action, in this case, leads us to the conclusion that our former judgment was erroneous. The judgment of the lower court which sustained the exception was. correct and should have been affirmed.

The only issue is that involved in the effect that is to be given to the escrow agreement entered into contemporaneously with the act of sale from Aurelius Montet to the plaintiffs herein, T. Aucoin & Sons. That agreement is quoted in full in the original opinion (132 So. 133) which we rendered. Granting that it is properly before the court, and that the question of its admissibility in evidence is no longer an issue, we are now of the opinion that'the case was properly disposed of by the lower court on the exception of no cause of action.

- Counsel for the plaintiffs contend that we have before us all the essentials of a valid contract of sale,'which proposition is not questioned. There is no doubt a binding agreement between ■ these plaintiffs, and Aurelius Montet which can be made the subject of specific perfQrmance. With the escrow agreement before us, however, which shows on its face that the purchase price agreed, on has not passed as yet to the vendor, but is held in a bank subject to further instructions, from the notary before whom the purported act of sale had been passed, we are constrained to hold that the, ownership of the land has not passed to these plaintiffs and they can exercise no dominion over it. If they have not the capacity of owners and have no dominion over the property, then they are without right to maintain a petitory suit against this defendant, who apparently holds under a deed which on its face is translative of property. The decision in the case of Peck v. Bemiss, 10 La. Ann. 160, is controlling on this point and supports the ruling of the lower court on the exception. It is true that in this ■ case there was an authentic act of sale executed by the parties, but that deed has to be construed in connection with the escrow agreement entered into simultaneously with it, and when that is done, there results the same form of agreement as is found in the case of Peck v. Bemiss, supra, which the Supreme Court held constituted merely a promise of sale under which the ownership of the property did not pass. The wording of the escrow agreement in this case and that of the agreement between the parties in Peck v. Bemiss inay be different, but in substance their meaning is the same. The effect of both is to show that the purchase price agreed upon has. not been paid, and will not pass to the vendor until there is an assurance that lie can transfer possession. Under a condition such as this, there results only an agreement to sell which can be enforced, but no sale in which title, possession, and control and dominion over the property passes. The principle that no complete title under which the purchaser may be said to be the owner of the property passes until he has paid the purchase price seems, to be well imbedded in óur jurisprudence. It is derived from article 2487 of ithe Civil Code which reads as follows:

“The seller is not bound' to make a delivery of the thing, if the buyer does not pay the price and the seller has not granted him any term for the payment.”

We find an interesting history of the development of the principle stated under the articles of our Code in the case of Lapene v. Badeaux, 36 La. Ann. 194, wherein we are told that it comes to us from the Code Napoleon, being embodied in article 1612 of that Code. A similar provision exists in the Spanish law, “which like the French, once prevailed here.” As stated further, .the principle is found in Patrida III, tit. XXVIII, law 46, where it is expressed in these words:

“The property in the thing sold will not pass to the buyer until he has paid the price thereof.”

The theory has its origin in the Roman law, and, as “finally consecrated by our law has been applied by.the courts. Washburn v. Green, 13 La. Ann. 332; Doll’s Heirs v. Kathman, 23 La. Ann. 486; Mazoue v. Caze, 18 La. Ann. 31; Losee v. Sauton, 24 La. Ann. 370; Haynes v. Breaux, 16 La. Ann. 142; Hills v. Jacobs, 7 Rob. 406; Osterberg v. Union Trust Co., 93 U. S. 424, 23 La. Ed. 964.” To these may be added Wells v. Blackman, 121 La. 394, 46 So. 437; Kessler & Co. v. Manhein, 114 La. 619, 38 So. 473; and Centreville Bank v. Boudreaux et al., 133 La. 75, 62 So. 412.

Counsel for plaintiffs questions the right of the defendant in this case to challenge the validity of the act of sale between the parties to it, claiming that he is without interest to do so. But the plaintiffs themselves, and their vendor, in the agreement of escrow, recognize the fact that Paul Triche is in possession of the property, and he is so alleged to be in the original petition filed by the plaintiffs. Then, on a showing made by Triche that his possession is as agent for his father-in-law, Napoleon Young, and that Young is the real party defendant, the plaintiffs voluntarily come into court and ask that the ■ latter be substituted as defendant in place .of Triche whom they had at first cited. Moreover Young’s answer sets up title to the property which he alleges is derived from the same author under whom plaintiffs claim. We are of the opinion, therefore, that he has shown much interest and is in a position, at least as possessor of the property, to challenge the rights of the plaintiffs under their alleged sale from Aurelius Montet. It is elementary, besides, that in an action of this kind, the plaintiff has to rely on the strength of his own title and not on the weakness of his adversary’s.

All of the foregoing considerations convince us, as already stated, that we were in error in our former opinion and that the judgment and decree rendered should be set aside and annulled.

It is therefore now ordered that the judgment and decree herein handed down on January 26, 1931, be and the same are hereby set aside and annulled, and it is further ordered that the judgment of the lower court, sustaining the exception of no cause of action, and dismissing the plaintiffs’ suit, be now affirmed.

ELLIOTT, J.

(dissenting). Triehe, the first defendant, filed an exception of no right or cause of' action, which was overruled. This ruling is not questioned.

Triehe then filed an answer putting at issue plaintiff's alleged title, alleging among other defenses that plaintiff had not paid the price ’of the land to Montet.

Triehe, tenant of Young, retired from the defense and Young tdbk his place as defendant.

Mr. Young filed an answer admitting that plaintiffs had bought the property from Montet, but denies that their title is good, because of non-payment of the purchase price to Montet; admits that Montet had title from Mrs. Gauthreaux, but urges that Montet’s title is in the form of a donation inter vivos; that defendant’s title is superior to plaintiffs’, for the reason that Mrs. Gauthreaux, the common author, after donating the property to Montet, sold the same property to Ross, defendant’s author, and her title to Ross was recorded in the conveyance book before the donation from her to Montet was. recorded in the book of donations.

The averments in the petition of the plaintiffs and in the answer of Young forms the issue between the parties, the new matters alleged in the answer of the defendant being regarded as denied by the plaintiff. Codg Prac. art. 329.

Before the case was fixed for trial, the defendant, under subpoena duces tecum, obtained from plaintiffs an escrow agreement which had been entered into between them and Montet. This escrow purports to support defendant’s averment that the purchase price stipulated in the act from Montet to Aucoin & Sons, the plaintiffs, had not been paid, and if plaintiffs should lose the suit the price would not be paid.

Upon the production of this escrow agreement Young filed an exception of no right or cause of action based on the agreement.

The lower court sustained the exception and dismissed the suit.

This is the judgment before us for review.

Plaintiffs merely produced the agreement; the result of the production is a matter for the merits.

Defendant’s so-called exception of no right or cause of action is not in fact, such, but is rather a supplemental answer, because it brings, into the case as a defense that Montet remains the owner and that plaintiffs are not the owners of the land claimed in their petition and of which defendant is in possession. The exception states that, “the petition taken and considered in connection with the escrow agreement * * * discloses no right or cause of action.”

The escrow agreement does no.t take from the right or cause of action alleged in the petition, but constitutes a fact which is a matter for the merits. It does not question plaintiff’s right to stand in judgment on the question of ownership; it questions, his ownership.

The present situation is like that which existed in McCall v. Irion, 40 La. Ann. 690, 4 So. 859. The following is from the syllabus :

“In a petitory action, exceptions, filed by a defendant, the allegations of which, to be sustained, require the introduction of evidence of title upon which the exceptor must rely to maintain himself in the possession and ownership of the' property, should be referred to the merits.”

In the opinion it is stated that as plaintiff could not introduce evidence in support of their title, none could be offered by defendant. That an exception of the kind should be referred to and considered with the merits.

In Robbins v. Martin, 43 La. Ann. 488, 9 So. 108, the court said:

“What is termed a plea of no cause of action, ceases to be such, and degenerates into an answer, if it presents an essential averment of fact not stated, or admitted in the petition.”

In Commercial National Bank v. Sanders, 132 La. 174, 61 So. 155, the court said (quotation from the syllabus):

“The exception of no right of action which goes to the merits of the cause, and is not aimed at the right of plaintiff to stand in judgment, should be overruled, and defendant ordered to answer.” Citing authorities.

The case of Peek v. Bemiss, 10 La. Ann. 160, is not applicable to the present situation. That was a petitory action and based on a promise to sell and as to which the case .was tried on the merits and the promise held not sufficient to support the action.

In this case plaintiff is not suing on a promise to sell, but an absolute unqualified title on its face. This escrow agreement is a matter which concerns Montet and. T. Aucoin & Sons personally.

The defendant Young is not biased nor prejudiced, by it in his defense. He can urge any defense against T. Aucoin & Sons that he could urge against Montet. The fact that as between Montet and plaintiff the price was not paid does not concern Young. Civil Code, art. 2456.

In Viguerie v. Hall, 107 La. 767, 31 So. 1019, 1021, the court decided the very question involved in the present case. It was a petitory action in which an exception of no cause of action was urged on a similar ground. The court said:

“Defendants’ first contention is that the action brought by the plaintiff is a petitory action; that such an action can only be brought by one having title to the property he seeks to revendicate; that the instrument upon which the plaintiff declares is not a sale vesting title to the property in the possession of the adjudicatees at a judicial sale,” etc.

The court on page 775 of Viguerie v. Hall, 107 La., 31 So. 1019, 1022, held concerning the defense urged:

“As matters stand, simply on an exception of no cause of action we must assume it to be a legal act. Defendants have as yet shown equities in the premises, and there is nothing to indicate that a single right or defense which they had or have against Mrs. Viguerie could not be as ef; fectually set up against the present plaintiff as against her. Defendants have no legal interest in inquiring into the relations between the plaintiff and his transferor, or the motives or purposes which may have influenced them in passing the act, further than in seeing that she is 'not legally injured thereby. The same defenses which would have been available to defendants as against a demand made by Mrs. Viguerie to annul the judicial sale appear to be open to .them as against the plaintiff. They can ask no more. It is not an unusual occurrence for parties- to place their property and rights in the name and under the' control of others, without any consideration whatever, and without the intention of ownership being actually transferred. Such acts are permissible, and cannot be gainsaid, unless they carry injury to someone. A simulation is not necessarily a fraud. It is only so when injury to third persons is intended.”

The holding in Viguerie v. Hall is cited with approval and followed in Hunter v. Chicago Lumber & Coal Co., 156 La. 19, pages 33 and 34, 100 So. 35.

Smith et al. v. Richland Compress & Warehouse Co., 153 La. 820, 96 So. 668, is another case involving the identical question before the court, except that the suit was for the recovery of damages on account of the loss of cotton (quotation from syllabus):

“One to whom legal title to cotton damaged by compress company was assigned could sue for the damages, for his own account or for that of the assignors, and it was no concern of the compress company that he had not paid the assignors.
“In action against compress company for damage to cotton, brought by one to whom legal title to the cotton had been assigned, all defenses available against the assignors were open to the defendant.” Citing Rawle, to Use of Russell v. Skipwith, 19 La. 207; Moore & Browder, for Use of Alter v. Bres, 18 La. Ann. 483; Smith v. Atlas Cordage Co., 41 La. Ann. 1, 5 So. 413; Viguerie v. Hall, 107 La. 767, 31 So. 1019; Hanton et al. v. New Orleans & C. R. Light & Power Co., 124 La. 562, 50 So. 544, and other cases.

The cases Leathern & Smith Lumber Co. v. Nalty, 109 La. 325, 33 So. 354, and Ruddock Cypress Co. v. Peyret, 111 La. 1019, 36 So. 105, were also petitory actions in which like defenses were urged in the answers of the defendants, considered on the merits, and the court considered that the matters urged were personal matters of no concern to the defendants.

The escrow agreement will not prevent defendant from urging against plaintiffs any defense available against Montet. The plaintiffs hold under the agreement and title all the rights of Montet in the land and in the suit for the recovery of the same. The plaintiffs are before the court the same as if Montet himself was the plaintiff. See West v. Negrotto, 52 La. Ann. 381, 27 So. 75; Adolph v. Richardson, 52 La. Ann. 1156, 27 So. 665.

The first opinion and decree of this court herein is in my opinion correct; I think it should be reinstated and made final.

I respectfully dissent.


author: ELLIOTT, J.

text:
    No. 764
    First Circuit
    SCHULTZ ET AL. v. KELLAR ET AL.
    (June 16, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)

      See 10 La. App. 138, 120 So. 232.
    Hiddleston Kenner, of Lacombe, attorney for plaintiffs, appellants.
    Victor E. Planche, of Covington, attorney for defendants, appellees.
   ELLIOTT, J.

Mary Smallwood Schultz, Louisa Smallwood, and Augustine Small-wood Cherry claim as the heirs of Paul Smallwood and of Juliet Batiste, his wife, to be the owners of 80 acres of land situated in the parish of St. Tammany, in a petitory action against Henry Kellar, A. J. Planche, Sr., Madeline Planche Burns, Victor E. Planche, August J. Planche, Jr., and Felix A. Planche.

The land- is described as the S. % of S E. % Sec. 8, Tp.s9 S., R. 13 E., in the district of lands subject to sale1 at- New Orleans, La. The case has been previously before us on a question of nonjoinder of parties defendant, and was remanded, in order that further parties might be made. Upon the remand, the plaintiffs proceeded under an amended and. supplemental petition making August J. Planche, Sr., Madeline Planche Burns, . Victor E. Planche, August J. Planche, Jr., and Felix A. Planche, parties defendant, upon which these new parties called on the plaintiffs to elect whether they would, as to them, proceed as plaintiffs in a petitory action or under the provisions of Act 38 of 1908.

The lower court required plaintiffs to elect which they declined ,to do, and thereupon their suit was dismissed. This court set aside that dismissal, and the case was again returned to the lower court.

Upon this last return, the defendants interposed against plaintiffs’ suit the prescription of one year, under section 5 of Act 80 of 1888. *

That of three and ten years under Act 185 of 1904.'

That of” three years to validate tax titles.

That of ten years under good and valid title in good faith translative of ownership coupled with possession.

That of thirty years under good and valid title in good faith translative of ownership coupled with possession. v

The minutes of the lower court concerning the present proceedings were not brought up, but the record indicates that these pleas of prescription were referred to the merits. The defendants then under reserve of their exceptions filed an answer. The case was tried on the merits and submitted to the court for decision, when .the court, taking up first the pleas of prescription, sustained them all except that of one year, as to which the court did not rule.

The prescriptive defenses acted on again brought about the dismissal of plaintiffs’ suit.

The plaintiffs have appealed. The defendants, without answering the appeal, urge that the judgment be affirmed.

Defendants in their answer, reiterating their pleas of prescription, allege ownership and actual possession under duly recorded titles which they deraign back through mesne and intervening conveyances to an adjudication made to the state for taxes assessed against Paul Smallwood during the year 1882.

The judgment appealed from being entirely based on defendants’ pleas of prescription of three, ten, and thirty years, our review must be limited to the questions acted on by the lower court.

The plaintiffs are the children and sole heirs at law of Paul Smallwood and Juliet, his wife. Paul Smallwood homesteaded the land in question as an actual settler under the Acts of Congress, receiving a patent therefor dated December 1, 1876. The patent was obtained during the lifetime of plaintiffs’ mother, but within a few years thereafter she departed this life.

Paul Smallwood lived on the land, fenced and cultivated a field, but the evidence indicates that at the time of his death, which took place about 1891, 1892, he had ceased to live on the land, but continued to live nearby.. A possible reason on his part for leaving the land may have been the adjudication to the state and the sale by the state to Julian Atlow, which had taken place previous to his death.

Mary Schultz, one of the plaintiffs, testifies on this subject:

“Q. Up to the time of his death where was his home?
“A. We took him to the city when he was sick and he died in the city.
“Q. Before he died?
“A. The old place but he was living at the brick yard close to his work.”

This plaintiff living in New Orleans, came back to visit the old place; the evidence does not enable us to state exactly the time of her return, but it must have been about 1895. At that time she says the house, fences and improvements were gone and no one lived there.

Other testimony indicates that for fifteen or twenty years after Paul Smallwood died the place where his improvements and field had been grew up in bushes, and actual possession was not evidenced any more until about 1917, when defendants inclosed it as part of a pasture of several thousand acres.

In speaking of plaintiffs’ suit against the defendants, we have called it a. petitory action because the evidence shows that the plaintiffs, are out of possession and have been for twenty-five or thirty years or more, and that the defendants are in actual possession under just title duly recorded, and have been since about 1917, when the property in question was by them inclosed in a pasture. It is shown that defendants deraign title back to an adjudication to the state of Louisiana made April 21, 1883, on account of state and parish taxes due by Paul Smallwood for the year 1882 for the property described as follows:

“160 acres of land and improvements east of Bayou Lacombe situated in the Parish of St. Tammany, assessed in the name of Paul Smallwood.”

The adjudication is evidenced by an authentic act in the form of a title dated July 5, 1883. The Act of Adjudication refers to Acts 77 of 1880 and 96 of 1882 as, authority for the adjudication to the state.

Act 96 of 1882, sec. 52, directs the sheriff, in case no bid is made for the, amount of taxes due, .to bid in the property for the state.

The record shows a tax receipt offered in evidence by the plaintiffs showing the payment of state and parish taxes on the property in question by Paul Smallwood for the year 1889; but the date of the receipt inclines us to the view that it does not show a payment of the taxes due on thisr land for this year by Paul Smallwood himself, but is in some way connected with the payment of the taxes due on the land by Julian Atlow, who in buying the property from the state was bound to pay all the taxes due thereon by Smallwood. It is not claimed in the petition of the plaintiffs that Paul Smallwood paid the taxes due ón the land, or that the adjudication to the state was ever redeemed.

The record shows that the sheriff of the parish of St. Tammany, proceeding under Act 80 of 1888, advertised and offered for sale the property in question under the same description whereby it had been adjudicated to the state, and at this offering the property was sold to Julian Atlow. (Spelled in the deed, Atto.) This sale was made December 21, 1889.

The original title to the state and from the state to Atlow was not produced, but the conveyance books of the parish of St. Tammany in which the titles had been recorded were offered in evidence showing the registry of these titles therein. Plaintiffs objected, urging that the conveyance books were not admissible in evidence. The objection was overruled. The ruling was correct. The adjudication to the state and the sale from the state to Atlow could be and was proved in the way stated. Act 43 Ex. Sess., of 1870, Civil Code, art. 2270.

Julian Atlow, after buying the property from the state, departed this life some 8 or 10 years afterwards, and Mathilda At-low, his wife, died later; each leaving a number of heirs who inherited the land in question from them. Julian Atlow and his estate are shown to have been assessed for the property from 1902 to 1916. During the year 1917, a number of the heirs transferred their interest in the land to Henry Kellar by titles duly recorded. All of the heirs did not sell to Kellar however, so he brought an action against the remaining heirs to compel a' partition of the property by licitation. Judgment was rendered accordingly, and at the sale made for the purpose by the sheriff- on October 13, 1917, the property was sold and adjudicated to Whitaker Riggs. In this sale the property is described as being the S. % of S. E. % Sec. 8, Tp. 9 S., R. 13 E.

Whitaker' Riggs sold the property by title dated February 1, 1918, to A. J. Planche, Sr., and A. J. Planche by title dated November 25, 1918, sold an undivided one-half of the property to Henry Kellar.

Mrs. Planche, wife of August Planche, Sr., departed this life after the sale to Kellar, leaving the other defendants, her children, sole heirs born of her marriage with A. J. Planche, Sr.

This suit was' filed June 12, 1926. At that time ten years had not elapsed, counting from the time the property was adjudicated by the sheriff to Whitaker Riggs, and previous to which the property had not been inclosed nor within the actual possession of the defendant, nor of Julian Atlow and his heirs. Therefore, the prescription of thirty years, and of ten years acquirendi causa pleaded by defendants cannot prevail.

The. defendants commenced an actual possession by inclosure of the entire tract about the time Whitaker Riggs sold to A. J. Planche, Sr.; consequently, defendants are in position to urge in bar of plaintiffs’ claim as heirs of Paul Smallwood and wife the prescription of three years under Act 105 of 1874, section 5; also that of three years under Act 185 of 1904; Art. 210 of Constitution of 1879; article 238 of the Constitution of 1898 and section 11 of art. 10 of the Constitution of 1921, barring actions after .three years.

Act 105 of 1874, section 5, provides that:

“Any action to invalidate the titles to any property purchased at tax sale under or by virtue of any law of this State, shall be prescribed by a lapse of 3 years from ■the date of such sale.”

The effect of this act is to bar suits to set aside tax sales. The question in cases involving issues like the present under this act is whether or not the description in the tax title is sufficient to reasonably identify the property as being that of the tax debtor for vwhose taxes it was sold. Barrow v. Wilson, 39 La. Ann. 403, 2 So. 809, and McDougall v. Monlezun, 39 La. Ann. 1005, 3 So. 273. There are many other cases to the same effect.

' Then came the Constitution of 1879, art. 210, providing that:

“No sale of property for taxes shall be annulled for any informality in the proceedings until the price paid, with ten per cent interest shall be tendered to the purchaser. All deeds of sale made, or that may be made, by collectors of taxes, shall be received by courts in evidence as prima facie valid sales.”

This provision of the Constitution of 1879 is not inconsistent with Act 105 of 1874, section 5, the purpose of which was to bar actions to invalidate tax titles three years after the sale..

Act 80 of 1888 under which the state sold the property to Julian Atlow contains in section 1 a provision making titles acquired from .the state under the act in question good and perfect. Section 5 of the act contains further provisions making perfect the titles of purchasers from the state. The only attack made by the plaintiffs on the adjudication to the state in this instance is the objection made to it when it was offered in evidence, that the description 160 acres east of Bayou Lacombe assessed to Paul Smallwood is too indefinite to constitute a safe; that Paul Smallwood owned but 80 acres.

The next provision in the course of time was Act 140 of 1890. Sections 1 and 2 define what shall constitute a valid assessment for the purpose of a tax sale.

Section 3 provides:

“That no assessment or tax sale shall be set aside or annulled for any error in description or measurement of the property assessed, in the name of the owner, provided the property assessed or sold can be reasonably identified.”

Section 4:

“That the tax sale shall convey and the purchaser shall take the entirety of the property, neither more nor less, intended to be assessed and sold and such as it was owned by the delinquent tax payer; regardless of any error in the dimensions, or description of the property assessed and sold and the tax collector in the advertisement or deed of sale may give the full description according to original titles.”

The Constitution of 1898, art. 233 provides that:

“No sale of property for taxes shall be set aside for any cause, except on proof of dual assessment, or of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceedings to annul is instituted * * * within three years from the adoption of this Constitution, as. to sales already made.”

The Act 185 of 1904, sec. 1 provides:

“That any person or corporation holding, or claiming immovable property under a deed made by a Sheriff, or a Tax Collector, or other State or parish officer, which has been on record for more than ten years, and is or purports to be, founded on a forfeiture for taxes theretofore had or made, or conveys or purports to convey an interest or title in such property acquired or pretended to have 'been acquired by the State, under a tax forfeiture, whether any such forfeiture actually took place or not, shali after the expiration of three years from the passage of this act, be held and deemed to ■ be the absolute owner of the property described in such deed, provided, they-or their authors shall have paid, or do pay all taxes assessed against said property for such period of thirteen years; and no Court in this State shall thereafter entertain any suit to cancel or in any wise affect the title of any person or corporation claiming by, through or under such deed.”

Defendants and their authors have met ■the requirements of this act in the matter of the payment of taxes on the land in question.

The Constitution of 1921, art. 10, sec. 11 provides that:

“No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted. * * * within three years from the date of the recordation of the tax deed,” etc.

Applying these constitutional and statutory' provisions to the description 'in the adjudication to the state, the description reasonably identifies the property as being the S. yg of S. E. % Sec. 8, Tp. 9 S., R. 13 E., which belonged to Paul Smallwood at the time of the adjudication to the state. It is situated east of Bayou Lacombe and is the only property he owned. The adjudication there stands as legal, and the prescriptive periods mentioned stand as an absolute bar to plaintiffs’ suit.

The description under which this adjudication was made to the state and by the state to Atlow is not more definite than existed in the following cases, in which it was held that the property was sufficiently identified as that which the tax debtor owned at the time of the assessment and tax sale, and that identity appearing, the action of the former owner or his heirs to annul the sale and recover the property from the purchaser was barred by the prescription of three years under these statutory and constitutional provisions urged against the action. Geddes v. Cunningham, 104 La. 306, 29. So. 138; In re Lockhart, 109 La. 740, 33 So. 753; Gouaux v. Beaullieu, 123 La. 684, 49 So. 285; Weber’s Heirs v. Martinez, 125 La. 663, 51 So. 679; In re Perrault’g Estate, 128 La. 453, 54 So. 939; Vannetta et al. v. Busbey, 131 La. 681, 60 So. 76; Landry et al. v. McWilliams, 135 La. 655, 65 So. 875; Board of Com’rs v. Concordia Land & Timber Co., 141 La. 247, 74 So. 921; Board of Com’rs v. Concordia Land & Timber Co., 149 La. 1053, 90 So. 402; Hollingsworth v. Schanland, 155 La. 825, 99 So. 613; Hollingsworth v. Poindexter, 156 La. 622, 100 So. 790; Nebraska-Tensas Co. v. Moritz, 157 La. 174, 102 So. 195; Pierson v. Castell Land & Harbor Co., 159 La. 158, 105 So. 274; Blanchard v. Estate of Hy. Garland, 6 La. App. 509.

The defendants urge in their brief, citing many authorities, that the adjudication set up against them cannot support a valid adjudication of the property owned by Paul Smallwood, because it calls for 160 acres east of Bayou Lacombe, without any further description. That Paul Small-wood owned but 80 acres.

The fact that the adjudication calls for 160 acres when Paul Smallwood only owned 80 acres is unimportant. The Act 140 of 1890, see. 4 expressly provides that error in dimension shall not be ground for setting aside an assessment and -tax sale. Therefore, the statement' in the adjudication to the state, that the tract contains 160 acres, when in fact it contained but 80, did not prevent- a valid adjudication to the state taking place for the 80 acres which Paul Smallwood actually owned, nor could that fact prevent the state from passing that 80 which it thus, acquired to Julian Atlow, nor the same by mesne and intervening conveyances from him and his heirs to the present defendants.

The opinion and decree of the lower court sustaining the prescription of three years and dismissing plaintiffs’ suit is correct.

Judgment affirmed. Plaintiffs and appellants to .pay the cost in both courts.


author: JANVIER, J.

text:
    No. 13,813
    Orleans
    THALHEIM v. CITY OF GRETNA ET AL.
    (July 1, 1931. Opinion and Decree.)
    (July 20, 1931. Rehearing Refused.)
    (October 15, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Andrew H. Thalheim, of Gretna, in propria persona, attorney for plaintiff, appellant.
    John E. Pleury, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

On July 2, 1929, the “May- or and Board of Aldermen of the City of Gretna” adopted an ordinance, being numbered 422, under which plaintiff, Andrew H. Thalheim, was selected as city attorney for a term of four years “from July 1st, 1929,” at a salary of $50 per month.

On July 2nd, the said Thalheim entered upon his duties as city attorney ^for the City of Gretna and performed the same until, by verbal resolution adopted by the mayor and board qf aldermen on March 3, 1931, the “office” of city attorney was declared vacant.

Thalheim, by this suit, seel!s.to enjoin any interference with him in the performance of his duties and in the collecting of the regular monthly salary provided for in ordinance No. 422. In the alternative, and in the event that it be held that he is not entitled to the injunction prayed for, then plaintiff alleges that the adoption qf the said ordinance created a contract between him and “the city of Gretna for a term of four years and that he is entitled to the remuneration which he would have earned had he been permitted to perform the duties for which, by the said ordinance, he was selected. He fixes the amount of salary to which he would have been entitled during the remainder of the term at $1,400 and he also claims that, by special employment he acted in certain other matters in which he earned further fees totaling $1,354.97, which, when added to the $1,400 salary item, makes the total amount which he claims in the alternative, $2,754.97.

So far as is concerned the alternative claim for the amounts to which he says he is entitled under the contract, if he is not entitled to an injunction maintaining him in the position, it is apparent that the amount involved, to-wit: $2,754.97, is beyond the jurisdiction of this court.

In answer to the application for injunction the mayor and those members of the board of aldermen who voted to declare the office vacant aver that the position of city attorney is not an “office” in the sense that the incumbent has a right thereto which may be protected by injunction, and that one who is employed to fill such position is a mere employee and may be removed at will, his only remedy being to seek to collect any salary or remuneration to which he may be entitled as a result of the contract of employment.

It is conceded that the city of Gretna was incorporated under Act No. 136 of 1898 and that the rights and duties and powers of the mayor and board of aider-men are fixed and controlled by that statute and by the various amendments thereof.

The most serious contention made by defendants is that although the mayor and board of aldermen by section 23 of Act No. 136 of 1898, as amended by section 2 of Act No. 97 of 1900, and as further amended by section 2 of Act No. 306 of 1908, are authorized to employ an attorney when necessary, the term for which such attorney may be employed is, by the said statutes, fixed at one year, and that thus . in adopting ordinance No. 422 the mayor and board of aldermen exceeded their authority. That their act in selecting the attorney for four years was ultra vires. In section 2 of Act No. 306 of 1908, which is the last of the. amendments to the section as it originally appeared in the act of 1898 we find the following:

“The Board of Aldermen may annually appoint an attorney-at-law for the municipality, prescribe his duties and fix the compensation, or it may employ counsel to represent the interest of the municipality should occasion require.”

Plaintiff, however, maintains that since section 38 of Act No. 136 of 1898 as amended by section 1 of Act No. -2'2 of 1928 provides that in case of a vacancy in any municipal office to which the officer is selected or appointed by the mayor and board of aldermen the said vacancy may be filled for the term by the mayor and board of aldermen at any regular or special meeting, the said mayor or board of aldermen are given the right to employ the attorney for the term for which they themselves have been elected.

We do not agree with counsel in this suggestion and for-two reasons: First, because we are of the opinion that the position of city attorney is not one of the municipal officers referred to in section 38 of Act No. 136 of 1898 and in Act No. 22 of 1928 and, second, because we believe that, in the case of such office, as is contemplated by those sections, a vacancy may be filled by the selection of a new incumbent, not for the term remaining to the mayor and ■ board of aldermen, but for the term which would have remained to the original incumbent in the particular office. It follows, then, that if the authority of the mayor and board of aldermen is limited to the selection of a city attorney for a term of one year, or “annually” as the act provides, then if the,: office of city attorney becomes vacant, it may be filled by the mayor and board- of aldermen not for the unexpired term remaining to them, but for the unexpired term which would have remained to the original incumbent in the position of city attorney.

That the position of city attorney is not such an office as is referred to in section 38 of Act No. 136 of 1898 and as amended by Act No. 22 of 1928, -appears from the fact that in the act of 1898 it is pro-Tided that “the officers of every municipality shall he a mayor, aldermen, a marshal, tax-collector and a street commissioner, of whom the mayor and aldermen and marshal shall be elected by the people and the other officers by the hoard of aider-men.” Sec. 19. Nowhere do we find mention of an attorney to represent the mayor and board of aldermen, except in that section of the act to which we have referred and which limits the term of the attorney to one year. Necessarily, then, the mayor and board of aldermen had no auth'ority to select such attorney for more than one year and necessarily, also, at the expiration of that year his térm of office came to an end. If thereafter he was permitted to discharge the duties of that position, he was entitled to the salary so long as he was permitted to perform the duties, but thereafter, unless he was again selected for another term of one year, which it is not contended he was, the mayor and board of aldermen had the absolute right to remove him at will and without cause.

Plaintiff argues that inasmuch as he was employed by the adoption of a formal ordinance he can be discharged only hy an ordinance of equal dignity. It was not necessary that he be employed by ordinance and, therefore, it follows that it i>was not necessary that an ordinance be adopted declaring the office vacant.

Plaintiff further contends that the authority for his employment for such term as the mayor and board of aldermen might deem proper appears in Act No. 231 of 1924, which amends paragraph 15 of section 15 of Act 136 of 1898, and which authorizes the mayor and board of aldermen to enact ordinances to provide, among other things, for the selection of such municipal officers other than those required by the original statute and amendments as may be found necessary. If the position of city attorney, or attorney for- the city, or special attorney, or whatever designation may be given to such position had not been provided for in Act No. 136 of 1898 and in the amendments thereof, then it might be said that the position was one of those which the mayor and board of aldermen might fill if necessary, but inasmuch as such position is specially provided for, we cannot see how it can be said that the position is one other than those required by the act. Even if it be conceded that the- attorney is one of those contemplated, since no term is fixed in the act of 1924, nor in paragraph 15 of section 15 of the act of 1898, it would follow that the term of one year, which is fixed in section 23 of the Act of 1898 would govern and that the authority to employ the attorney would he so limited.

Nor do we concur with the views of plaintiff that, since' paragraph 16 of section 15 of Act No. 136 of 1898, as amended hy Act No. 231 of 1924, provides for the enactment of ordinances “for the removal of officers and discharge of employees for misconduct or neglect of duty,” there was no authority to discharge plaintiff except for cause and after proper trial. Such an argument might well be made in the case of an officer or an employee during the term authorized by the statute, if, during that term, an attempt should be made to remove him from his position, but here the term for which the plaintiff had been employed had come to an end and he was merely “holding over” and his salary was payable to him only from month to month and for so long as his employers permitted him to discharge his duties.

If, during the first year of his employment, an attempt had been made to remove him, he undoubtedly would have been protected by the sections of the statute to which he refers and could have been removed only for cause and after trial, but after his term had expired it was within the power of his employers to discharge him instanter, and without the assignment of any reason.

Whether "or not plaintiff has lost his rights to the injunction prayed for by reason of the fact that he has appealed only devolutively and has made no effort to maintain the status quo by taking such action as might have protected his rights is a question which we find it unnecessary to discuss in view of our conclusion that he is not entitled to an injunction maintaining him in office, even if, as a matter of fact, it be conceded that he is still occupying the position and has not lost his rights by failing to maintain his status.

We have not discussed the claim of ¡plaintiff made in the alternative for the reason that, as we have already stated, that claim exceeds the jurisdictional limit of this court. It is true that to eliminate the salary claimed amounting to $1,400 leaves in dispute the remaining items which are within our jurisdictional limit, but jurisdiction is determined by the amount placed in dispute, by the pleadings, which amount was $2,754.90. Furthermore, in view of the fact that plaintiff in his main contention sought to enjoin the may- or and board of aldermen from interfering with him in performing his duties as city attorney, it would seem that his suit for fees earned in special employments could not properly be cumulated with the injunction proceeding. If plaintiff is entitled to compensation for any special services rendered, he, of course, may, by proper proceeding, assert his rights thereto. The judgment of the trial court refusing. the injunction was, in our opinion, correct, and it is, therefore, ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed.

HIGGINS, J., takes no part.