author: CARVER, J.

text:
    No. 2228
    Second Circuit Appeal
    J. T. ELLINGTON v. ELLIS & DORSETT ET AL.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Petitory and Possessory — Par. 27.
    Under Code of Practice Article 163 a suit which is an action of slander of title converted into petitory action by an answer of a defendant can be brought either at the defendant’s domicile or in the parish where the land is situated.
    2. Louisiana Digest — Corporations — Par. 295, 301.
    The word “resides” in Articles 163 and 375 of the Code of Practice means, in the case of a foreign corporation with an agent resident in the state, the parish where the agent resides.

      3. Louisiana Digest — Possession—Par. 1, , 3;- Prescription — Par., 46, 47. ,
    Possession of a part of land upder control of the whole is possession of the whole, subject however, to the limitation that the land claimed' by constructive possession must be such as ■ is included in the title included that al,so actually possessed and cannot be extended to land claimed under separate title even though such land be contiguous.
    4. Louisiana Digest — Notice—Par. 1, 2.
    Actual possession of a tract of land different from another’s land though adjoining it, is not notice to the other party of any claim to his tract.
    5. Louisiana Digest — Possession—Par. 5; Prescription— Par. 46, 47.
    “Limitations of title” under Article 3498 • of the Civil Code means limits of that title which covers the land whereof actual possession of a part is taken and not other titles covering different land even though this different land adjoins that of which possession ■ of a part is taken.
    6. Louisiana Digest — Prescription—Par. 12, 20.
    Under Article 3487 of the Civil Code, civil posession must be preceded by corporeal possession, in order to give title by prescription.
    7. Louisiana Digest — Prescription—Par. 12, 20, 34; Registry — Par. 7, 8.
    In view of Articles 2264, 2266, 3437, 3487 and 3498 of the Civil Code an unrecorded deed cannot support the ten years prescription acquirendi causa as to a tract not actually possessed but only regarded as constructively possessed by reason of the actual possession of another tract which is separate from it as to ownership though contiguous to and forming one body of land covered = by the same deed.
    8. Louisiana Digest — Appeal—Par. 181,509.
    A, petition for an appeal stating that a plea of ten years of prescription had been sustained and all calls in war■ranty dismissed does not, nor does the bond for appeal thereunder, show any acquiescence in ■ that part of the judg- ■ ment sustaining the plea of prescription or limiting the appeal to the judgment : ■ rejecting the demands against the warrantors.
    App'eal from Eighth Judicial District Court of Louisiana, Parish' of Franklin^ Hon. S. R. Holstein, Judge. '•
    The purpose of this suit at fii'st was the partition of 280 acres of landv Thé main question- decided however, "was the title to 80 acres of land executed by -one Kesterson, in favor of the ’West Virginia Timber Company. The West Virginia-’Tim!ber Company called Vincent and Hayne in warranty. Vincent and Hayne filed fouf exceptions which were overruled. • A-petition was later filed for Dan Buie • alleging that he had acquired the interests O'f all the original parties to the suit except' dhosS claiming 80 acres held adversely by' the West Virginia Timber Company and its warrantors. Buie claimed possession of the land for over 30 years and pleads preácrip* tion of ten years and 30 years. The--lower court gave a judgment sustaining the plea! of 10 years’ prescription advanced by; Buie; and the West Virginia Timber Company appealed.
    Judgment of the lower court reversed and the plea of 10 years’ prescription by Buie overruled, the case remanded fon further proceedings according to law.
    Ellis - and Ellis, of Rayville,’ attorneys for plaintiff in plea of prescription-. • •
    T. V. Berry, of Rayville, attorney for West Virginia Timber Company. ‘ Hudson, Potts, Bernstein and Sliolars, of Monroe, attorneys for warrantors,' Vincent and Hayne.
   CARVER, J.

This suit was brought id 1911 by J. T. Ellington against C. J. ElliS, E. N. Dorsett, Tensas Delta Land Company^ Limited, J. W. Kesterson and Fred. Buskin.

Its main purpose was the partition of 280 acres .of land in which the plaintiff claimed an undivided one-third interest and Buskin, Ellis and Dorsett the other two thirds, and incidentally to have decreed null as to plaintiff’s interest the, claims of Tensas Delta Land Company, Limited^ and Kesterson who, plaintiff alleged, claimed the whole of some of the land.

The Tensas Delta Land Company, Limited, filed a general denial, and the record does not show that it ever owned or claimed any of the land. It is thus eliminated from the suit.

Subsequently plaintiff filed an amended petition alleging that the Tensas Basin Levee Board claimed some interests in the land; but the Levee Board thereafter executed a quitclaim -deed to the successors of plaintiff and his co-claimants; thus eliminating- the Levee • Board also from the suit.

Pending the suit, Kesterson, who- claimed 80 acres, executed a deed in favor of the West Virginia Timber Company, conveying it to that company. Thereupon plaintiff filed a supplemental petition making the West Virginia Timber Company a party. That . company answered, setting up its title under its purchase from Kesterson and alleging that it obtained from Kesterson subrogation to his rights of warranty against his vendors and that said vendors, Vincent and Hayne, had warranted the title, wherefore it called them -in warranty.

Hayne and the representatives of Vincent who had died, filed exceptions as follows:

1. Improper joinder of defendants.

2. Improper cumulation of demands.

3. Vagueness.

4. No cause or right of action.

These exceptions were apparently overruled, whereupon Vincent and Hayne answered denying that they had warranted Kesterson’s title or that he had subrogated the West Virginia Timber Company to his rights of warranty. They also set up their chain of title as follows;

Document 48. Tax Collector to J. M. Dresser in the year 1900 for taxes of 1899 assessed . to Levis Brothers.

Dresser to North Louisiana Land Csompany; July 10, 1903.

North Louisiana Land Company to Blair Bierson; December 16, 1906.

Blair Bierson to .Simon Goldman; October 7, 1,907.

.Simon Goldman to Wesley Halliburton; July 6,' 1909.

Wesley Halliburton to Vincent and Hayne; February 3, 1910.

They also asked that their vendor, Halliburton, an absentee, be called in warranty and cited through a curator ad hoc.

This, was ordered by the Judge. E. B. Moóre, an attorney, was' appointed curator and served. We find no answer either -by the'curator or any one else for Halliburton.

On March 2, 1917, Fred. S. Boughton filed a petition alleging that he had acquired the interest- of Ellington, Ellis and Dorsett, and asking to be made a party.

On July 6, 1920, Dan Buie filed a petition alleging that he had acquired the interests of, all. the original parties to the suit except those claiming 80 acres of the land adversely to him and his authors.

This -80 acres -in N% of NEÜ of Sec. 18 Tp. - 16 ■ N. R. 8 -E. and the adverse claimants are the West Virginia Timber Company and its warrantors.

Buie further alleged that he and his authors had been in possession of all the land for over 'thirty years, wherefore hé pleads the prescription of 10- and 20; probably meaning 30; years. ■’

Thus the contest narrows down now to one between Buie on the one side and the West -Virginia • Timber Company and its warrantors on the other.

Bui-e's-title traces to the heirs of D. C. Henderson-who died in 1869 owning all of the 280 acres, having acquired it as follows :

■January 10, 1859; E% of NW% of Section 17, with Other lands from the State.

December 15, 1859; SE% of SW% of Section 8, with other lands from the State.

The W% of NW% of Section 17 in 1858 from the Succession of Mary Burns.

The N% of NE1/^ of Section 18 from A. W. Best and Lucinda Best his wife on December 3, 1860.

A. W. Best acquired the N% of NE% of Section 18, and other land, from the State in 1857.

The land lies in one body but Big Creek runs between the 80 acres described as N% of NE% of Section 18 and the rest of the land, though there is, according to Scott, a surveyor, a bare possibility that some small portion of this 80 acres lies east of the creek.

The creek is the boundary line between Franklin and Richland parishes, Franklin parish lying east of the creek and Richland parish west of it.

The deeds forming the West Virginia Timber Company’s chain of titles were as alleged in the answer of Vincent and Hayne, but further deeds were introduced carrying that chain further back as follows:

No. 46. Tax Collector to Patrick Mathis in 1881 under Act No.-of 1880 providing for the sale of property formerly forfeited or adjudicated to the State. The deed recited that the property had previously been forfeited to the State for unpaid taxes due by Lucinda Best, though for what years is not stated.

No. 47. Patrick Mathis, by the sheriff, to Levis Brothers in 1884.

The deed adjudicating the property to the State does not appear to have been introduced in evidence.

The plea of prescription filed by Buie was set down for trial separately and judgment .was rendered sustaining the plea and rejecting the demands “of all parties claiming any part of the real estate in controversy which are adverse to the claims of ownership as set up in the original petition”.

The demand in warranty was not passed op, but the costs were taxed against the warrantors.

The West Virginia Timber Company alone appealed but Hayne and the representatives of Vincent file a motion insisting on the exception filed by them. This motion, though, cannot be considered, as the judgment cannot be amended as between appellees.

See Louisiana Digest, volume 1, pages 579-580.

Their counsel say that the court should on its own motion dismiss the suit for lack of jurisdiction in the court a quo because the suit was brought in Franklin parish and the 80 acres now in contest is situated in Richland parish.

Code of Practice, 163, provides:

“In actions of revendication of real property * * * the defendant may be cited * * * either within the jurisdiction where the property revendicated * * * is situated, though he has b-is domicile or residence out of that jurisdiction, or in that where the defendant has his domicile, as the plaintiff chooses.”

In Williams vs. Zengel, 117 La. 610, 42 South. 153, the Supreme Court says:

“The action of slander of title is a form of the possessory action. Dalton vs. Wickliffe, supra; Cross on Pleading, No. 262. In all its forms the possessory action is an action of revendication, for it has for its object the assertion of rights to real estate. It involves real estate.”

This suit, so far as the 80 acres in contest is concerned, is an action of slander of title converted into a petitory action by the answer-of the West Virginia Timber Company. The suit, therefore, could be brought either at the defendant’s domicile or in the parish where the land is situated.

Kesterson, the original defendant, lived in Franklin parish so could be sued there.

The West Virginia Timber Company has its main domicile in West Virginia but has an agent in Franklin parish who, plaintiff alleges, was authorized to receive services of legal process and who accepted service herein.

In its answer the West Virginia Timber Company did not deny his authority.

We think that Franklin parish must be considered as the Louisiana domicile of that company, and that therefore the action of slander' of title could be brought against it there.

In Texas & Pac. Ry. Co., vs. Chatwin, 135 La. 143, 64 South. 1017, the court says in its syllabus:

“The word ‘resides’ as used in Code Prac. Art. 375, refers, with reference to a foreign corporation, to its chief office or place of business, or where its authorized agent in the state, upon whom process may be served, ‘resides’.”

We think that the word “resides” in article 163 must equally mean, in the case of a foreign corporation with an agent resident in the state, the parish where the agent resides.

The sole remaining question to be determined on this appeal is whether the plea of prescription was properly sustained.

We are unable to agree with our learned brother of the lower court ■ on this question. It is not pretended that Buie or his authors have now or ever have had any actual, corporeal possession of the 80 acres in dispute. The claim is that it. was a part of the Henderson place, consisting of the 280 acres described above, which 280 acres was acquired by Henderson by four' different deeds, and. that actual possession. of part of this 280 acres was actual possession of the whole.

The proof shows that in 1868 and prior thereto Henderson lived on the Northwest quarter of Section 17 where he had a considerable clearing and several buildings, his clearing probably touching all four 40’s of this quarter section but not extending to the land in Section 18 which was across the creek from that in Section 17.

He, and his heirs after his death, which occurred in 1869 continued occupation, either personally or through tenants, down to and including the year 1879 after which it was apparently no longer in the actual possession of any one until about January 1907, When Ellington moved on it, cleared about 32 acres, fenced about 50 acres and built several buildings; all these improvements being where the old Henderson improvements were. Since that time he and his successors in title have remained in actual possession.

On February 19, 1907,. he obtained and recorded in Franklin parish but,' so far as the record shows, not in Richland parish, where the 80 acres in question are situated, a deed from Mrs. Mecklin, one of Henderson’s three heirs, the deed covering her one-third interest in the whole 280 acres.

The answer of the West Virginia Timber Company setting up its title thereby converted the action into a petitory action was filed January 23, 1918, more than ten years after Ellington had gone into possession under his recorded deed. Of course this constituted an interruption of prescription and pending the suit also a suspension thereof.

In 1888 one of Henderson’s daughters sold her one-third interest in the whole 280 abres to H. Block who, in 1906, sold it to Ellis and Dorsett; but no possession seems to. have been taken under these deeds which were recorded in Franklin parish but" so far as the record shows- not in Richland parish.

The other Henderson heirs did not sell their interests until 1910 and afterwards.

Buie’s counsel claim that although the Hendersons and their successors in title did not continue actual occupation after 1879, yet that there remained vestiges of the former improvements and that these, together ' with some payments of taxes, sufficed to continue civil possession.

In our opinion the actual possession by Henderson and his heirs of the land in Section 17 did not amount to constructive possession of that in Section 18. They were separate tracts, having been segregated from the public domain by separate entries, acquired by Henderson under separate deeds and being situated in different parishes. . The mere fact that the two tracts were contiguous and belonged to the same owner, while it may have made them one estate, in a sense, did not, we think, make them one in the sense of the law providing that actual possession . of a, part under title to the whole is possession of the whole.

Although we have discussed the question of possession claimed, to have been enjoyed by Henderson and his heirs yet really • that possession prior to the time of -the adjudication tq the state of the 80 acres ip question ,for , the taxes of L. :Best, even if such possession be regarded- as extending, constructively, to that 80 acres, is immaterial so far as concerns the - plea of prescription advanced by Buie. Up . to ’ the time of the adjudication the- title of the Hendersons Was good without reference tp prescription.. Whether- they had possession-or ,not up to and at, the time,.of the tax sale to Dresser in 1900, may also be immaterial on the question of Buie’s plea.

Such possession may be of importance when it comes r t.o considering the validity of-:this tax sale and .the three years’ prescription advanced in support of them, but it cannot avail to establish Buie’s plea because if either one of these tax sales was valid and at present we cannot presume otherwise — its effect was to oust the Hendersons of their possession and divest them of their title as well. On this view’, too, it is clear that the civil posséssion claimed for Buie’s predecessors in the title prior to Ellington cannot at this stage of the proceeding avail £o establish his plea which, therefore, must rest along upon the possession taken by Ellington in 1907.

It must be borne in mind- that in the present attitude of the case we cannot pass on the validity of the tax sales or the pleas of prescription advanced in their, support, being confined to a consideration of Buie’s plea of prescription which was the only question decided below and therefore the only one of which we can take cognizance on this appeal.

The principle that possession of a part under title to the whole is possession of the whole .is, as shown above, subject to the limitation that the land claimed by' constructive possession must be such as i£ included in the title including that also actually possessed and cannot be extended tp land claimed under separate titles even though such land be contiguous.

It strongly might be argued that the principle is within another limitation, namely: that the land to which possession is thus constructively extended must be such as legally may -be regarded as' part of the same tract as -that actually possessed not an entirely separate tract.

It was held in Gulf Refining Co. vs. Jeems Bayou, etc., Club 129 La. 1021, 57 South. 322, that tlie principle does not apply so as to’ operate constructive possession of a tfaet Widely separated in space from another actually possessed although the two tracts were included in the Same deed.

Reasons might he conceived for regarding two tracts as legally separate though contiguous to each other and included in the same deed. They might have been separately severed from the public domain or, if severed as one body, might have been separated by subsequent subdivision and in either case purchased by different owners.

If one should obtain a deed calling for a whole parish it could hardly be contended that by taking actual possession of -a part he would be getting constructive possession of the whole. Nor would actual possession of a part give constructive possession of a whole township which had been subdivided and sold to different purchasers.

So, if a tract be divided into town lots and blocks and these sold off to different purchasers, it could not- well be claimed that actual possession of one lot under a deed calling for a whole block the other lots' in. which were owned by different purchasers would operate as constructive possession of the whole block.

One having a perfect title to a tract of land should not be obliged to take actual possession to guard against the danger- of losing it by a hostile posses: sion merely constructive of which he could have no knowledge except by reading the deeds of everybody in the neighborhood to see whether his land was included in any of them or not.

If no one pretended to take actual possession of his tract he should be able to rely on this apparent respect of his title as safe assurance that no one was claiming adversely to him. His title gives him a right to possession and the argument is quite persuasive that it carries a constructive possession which though it may be ousted by an adverse actual possession cannot be ousted by a possession merely constructive like his own but unlike his own not rightful. Such a possession hardly measures up to the standard of openness, publicity and notoriety required by law. Such constructive possession could certainly not overcome the constructive possession which an owner would enjoy of his whole tract if he were in actual possession of any part of it. Actual possession of a tract different from his though adjoining it is hardly notice to him of any claim to his tract.

However, in the case of Leader Realty Co. vs. Taylor, 147 La. 286, 84 South. 648, and Leonard vs. Garrett, 128 La. 543, 54 South. 984, the lands to which constructive possession was held applicable were separate tracts from those actually possessed, in the sense that they were severed from the public domain separately and belonged to different owners.

It must be observed, though, that in neither’ one of those cases were the above considerations adverted to. Also it must be observed that in the Leonard case the title under which prescription was sustained was one emanating from the United States Government and covered the land in controversy which, though, it appeared really belonged to the State by virtue of its sovereignty.

We have seen that the deeds in Buie’s chain of title were not recorded in Rich-land parish where the land is situated.

In Duplessis vs. Boutte, 11 La. 342, the Supreme Court held that an unrecorded deed could not support the plea of ten years’ prescription, giving as the reason that such a deed could have no effect as to third persons unless recorded in the parish where the land is situated, which was required by an Act passed in 1810.

Prevost vs. Ellis, 11 Rob. 56, virtually reaffirms this doctrine, though not so squarely.

Our present law provides, Civil Code 2264:

“No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in - the office of the parish recorder or register of conveyance of the parish where such immovable property is situated.”

Civil Code, 3437, provides:

“It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries.”

In Leader Realty Co. vs. Taylor, 147 La. 266, 84 South. 648, the Supreme Court, referring to this article, says:

“The word ‘boundaries’ in that article means the limits or marks of inclosures if the possession be without title, or the boundaries or limits stated in the title dee'd if the possession be' under a title. That is made plain by article 3498, which declares that—
“When a person has a title and possession conformably to it, he is presumed to possess according to the title and to the full extent of its limits.”

We think it clear that “limits of title” means limits of that title which covers the land whereof actual possession of a part is taken and not other titles covering different land even though this different land adjoins that of which possession of a part is taken.

On this view Buie’s authors must be held not to have shown any' possession of the 80 acres in question- prior to 1888. Up to that time they had no title under which actual possession of other land could be regarded as constructive possession of that in Section 18-.- In 1888, as we -have seen, Rosa Baskin, one of Henderson’s daughters, sold to H. Block her one-third interest in the whole 280 acres, and in 1906 Block sold this to Ellis and Dorsett.-■ The deeds conveying this interest were promptly recorded in Franklin parish but as far as the record shows not in Richland parish. The deed to Block covering onei-third interest in the whole 280 acres wad 'the first one under which it plausibly, could be claimed that possession of part was possession of the whole. At that time the Hendersons had been out of possession some eight years or more, though retaining civil possession of the land in Section 17 because of the remaining vestiges .of the former improvements. Did this,;deed to Block, conveying as it did all the rights of Rosa Baskin including such right of possession as she had and such possession, actual or civil, as she had, operate to give civil or constructive possession of ■ the 80 acres in Section 18? We think not. Not having had possession of that 80 acres herself, either actual or constructive, none was conveyed to Block.. For : the- same reason no possession of that 80 acres followed the sale by Block to Ellis and Dorsett, and we have already seen that neither Block nor Ellis and Dorsett took actual possession of any of the land. But civil possession of the land in Section 17 which had not theretofore operated as constructive possession of that in Section 18 could not, we think, thereafter so operate. Besides, civil possession, in order' to give title by prescription, must be preceded by corporeal possession.

Civil Code, 3487, provides:

“To enable one to plead the prescription treated of in this paragraph, it is necessary that the possession be distinguished by the following incidents:
1. That the possessor shall have held the thing in fact and in right, as .owner; when, however, it is only necessary to complete a possession ' already' begun, the civil possession, shall, suffice, - provided it has been proceeded by the corporeal possession.” .

The: first deed, under which the principle under discussion could avail to give constructive possession of the tract in Section 18 was that, of date February 19, 1907, from. Mbs. Mocklin to Ellington who did fake agufal possession of a part under title not indeed to the whole but to an-undivided .one third, of the whole.

Did the actual possession of the tract in Sec'tioh 17' which he took under that deed give him constructive possession of the 80 acres in Section 18 so as to ripen after ten years into a prescriptive title as to his one third interest? If so, did it also ripen the title of those buying from Ellis and D'orsbtt- whose title as well as Ellington’s called for an undivided interest in the whole 280 acres, and if this be so, then, finally, did it also ripen the title of the Henderson heirs who, up to 1910, had not sold their interest and whose title, therefore, to the land in Section 18, was a different 'one from their title to that in Section 17?

We think this last question must be answered in the negative for the reasons given. The deeds to the purchasers from these last named Henderson heirs though covering an interest in the whole 280 acres were less than ten years old when prescription was interrupted by the West Virginia .Timber Company’s answer. If, therefore, the possession of Ellington and his successors could ripen into a prescriptive title, as to the 80 acres in question, this would be true only as to the interests acquired by him and by Ellis and Dorsett.

Without deciding, for the present, how the first .two. of the above questions should be answered, we pass to another consideration. . ..

Civil .Code, Art.'2266, provides:

“All sales, contracts and judgments affecting immovable property, which shall not be so recorded; ■ shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.
“The recording shall have effect • from the time when the act. is deposited in the proper office, and endorsed by the proper officer.”

Other articles provide how the registry shall be made.

These provisions are substantially those contained in acts passed in 1855 with some changes made in the revision of the .Code in 1870, all looking to making the requirement of registry more rigid.

In Hudnall vs. Watts, 8 La. Ann. 5, being an action for the recovery of a slave, the prescription of which, under title was five years, the court said:

“We are of opinion after careful examination of the law and the authorities cited in argument that there is nothing in the registry laws which precludes a title not registered from being the basis of the prescription mentioned in article 3444 Civil Code (this was five years) when it is accompanied by actual possession with the incidents prescribed in article 2453.”

In Bracy vs. Buck, 11 La. Ann. 10, the Supreme Court reaffirmed the Hudnall case.

Both of these decisions were rendered in 1856, after the act of 1855 was passed; but the Hudnall case was instituted In 1850, so of course was not affected by that act. The report does not show when the Bracy case was instituted, but we are satisfied that the act of 1855 did not affect it either.

In Winston vs. Prevost, 6 La. Ann. 164, the court said:

“The defendants have proved that they held the land under a private act the date of which is made certain as far back as 1818. This action was not commenced until April, 1814, thirty years after that date. Our impression is, that it was not necessary that this private act should be recorded in the parish where the land is situated, in order to enable the defendants to regulate their possession by it. They were in actual possession of a portion of the land; this was sufficient to put the plaintiffs upon inquiry as to the nature and extent of that possession.”

In Bernstine vs. Leeper, 118 La. 1099, 43 South. 889, the Supreme Court, without citing any authorities, seems to have followed the doctrine of the Hudnall and Bracy cases, saying with respect to a plea of prescription under an unrecorded deed—

“But we do not find that registry plays an important part in- the matter. It would be important only if plaintiff were relying upon the sheriff’s deed as conveying the property; but hr is relying upon it merely as showing rem ij)sam, namely: that he had a title — a title which fixed the boundaries of the land and which justified him in believing that he was the owner. A trespasser ‘acquires possession inch by inch only the part he occupies’. (See Hennen, page 1205, No. 2) but the person who goes into possession by virtue of a title acquires possession of the entire estate the former possessor abandons to him.”

It must be noted, though, that in the Hudnall, Bracy, Prevost and Bernstine cases the parties claiming prescription were in actual possession, either in whole or in part, of the very property as to which the prescription applied and not merely claiming constructive possession of that property by reason of their actual possession of adjoining property. The Hudnall and Bracy cases involved slaves which, of course, were not susceptible of possession merely in part.

In Succession of Dougall vs. Fos, 14 N. O. App. 322, being suit by Dougall’s heirs to recover real estate sold more than ten years before the suit was filed by Dougall to Fos, by deed which plaintiffs had not recorded, the court said:

“Whatever defect there was in the title which plaintiffs acquired at the time of the sale has been cured by the prescription of ten y.ears.”

The court cited the Duplessis, Hudnall and Bracy cases and followed the last two as being the last expression of the Supreme Court. The court held also that Dougall’s heirs had accepted his succession and were enjoying property acquired throjjgh it, wherefore they could not attack Dougall’s act, being hound, as he was, as warrantor to Fos.

This last ground being fully decisive of the controversy, the other holding was really not necessary to a decision.

In the Dougall case, too, there was actual possession of the very property claimed by prescription.

The case of McDuffie vs. Walker, 125 La. 152, 51 South. 100, did not involve a question of prescription but- was an exhaustive examination of our laws of registry. Attention was called to the many decisions in which the registry laws had been relaxed and the conclusion of the court was that this relaxation was improper and that the law-maker should be obeyed when it stated that unregistered deeds should have no effect except as between the parties thereto.

It seems to us that inasmuch as a possessor without title can only acquire ownership in thirty years whereas one with title can acquire it in ten years, it is giving very considerable effect to an unrecorded deed as to a third person to hold that it can support the ten-year prescription. Such third person, the true owner, only loses his land on thirty years by suffering the adverse claimant to continue his possession if the deed is of no effect. To say that the deed may reduce this term to ten years is to make it very effective indeed.

If, though, as held in the. Leader and Leonard cases, constructive possession may be obtained of one tract though separately owned by virtue of a- deed calling for it and another tract the actual possession of which is taken, and if, as held in the Hudnall, Bracy, Winton, Dougall and Bernstiñe cases an unrecorded deed as well as a recorded one can be made the basis of ten years’ prescription where the land actually possessed is the same as that sued for, we have been referred to no decision and have not ourselves found any which hold that an unrecorded deed can support the ten years’ prescription acquirendi causa as to a' tract not actually possessed but only regarded as constructively possessed by reason of the actual possession of another tract which is separate from it as to ownership though contiguous to it and in respect of space forming with it one body of land covered by the same deed.

The land in question here, the N% of NE% of Section 18, having been segregated from the public domain separately from the land in Section 17, having been acquired by Henderson under a different deed from those by which he acquired that in Section 17, having been the subject of two tax sales which, if valid, divested the title of those claiming under Henderson, being across the creek from the land in Section 17 and in a different parish, we do not think that the posession held by Ellington and his successors in title of the land in Section 17 was constructive possession of the land in dispute. The actual possession of that in Section 17 under a deed not recorded in Richland parish, was not, in our opinion, such open, public and notorious possession of that 80 acres in question as is required by law.

Buie’s counsel argue that the appeal of the West Virginia Timber Company was not from that part of the judgment sustaining the plea of prescription but only from that part rejecting its demand in warranty. We do not, though, concur in this view.

It is true that in the argument of counsel before this court he complained' mainly of this feature of the judgment, but the petition for appeal stated in paragraph 5 is as follows:

"That said judgment was rendered sustaining the plea of 10 years’ prescription and dismissing all calls in warranty, and without your petitioner having been granted the relief prayed for in - his call against Vincent and Hayne in warranty, and your petitioner is aggrieved and injured by said judgment and desires an order for a devolutive appeal returnable, etc.”
“The prayer is for an order, for a devolutive appeal from the judgment rendered on the 2nd day of November, 1923, in the suit, etc.”
And further, “that the necessary citations of appeal be given to all parties at interest herein, etc.”

Service and citation of appeal were accepted by Buie’s attorneys.

The bond states that the appeal is “from a final judgment rendered against it in the suit of J. T. Ellington versus, etc.”

Nothing in this petition or bond shows any acquiesence in that part of the judgment sustaining the plea of prescription or limits the appeal to the judgment rejecting the demands against the warrantors.

Buie’s counsel also argue that a small part of the land may be in Franklin parish, but we think the proof sufficiently shows that practically all of it and perhaps entirely all of it is in Richland parish.

He also advances the argument .that inasmuch as the West Virginia Timber Company’s title rests upon a tax sale made in Franklin parish it does not lie in its mouth to argue that the land is in Rich-land parish. As said above, though, we cannot now deal with the validity of the tax titles but only with Buie’s plea of prescription.

It is decreed that the judgment of the lower court be reversed, the plea of ten years’ prescription advanced by Buie be overruled, and the case remanded for further proceedings according to law.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2187.
    Second Circuit Appeal.
    ARTHUR LEMOINE v. E. O. DUPUIS. E. McILHENNY'S SONS, Intervenors.

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 461, 473, 518, 572.
    Where the clerk’s certificate in a case says that the record contains all evidence adduced in .the case, and the record contains no evidence at all, the certificate means that no evidence was adduced. The surrounding circumstances in this case show this to be a fact.
    2. Louisiana Digest — Evidence—Par. 173, 177; Taxation — Par. 382.
    Act 43 of 1870, concerning records of courts as evidence, applies only to court records and not to tax deeds. The tax deed or a certified copy thereof must be proven by plaintiff where it is made the basis of a suit.
    3. Louisiana Digest — Appeal—Par. 727, 729, 733, 744.
    Where' the record shows that the district judge overruled defendant’s exception and immediately proceeded to render final judgment against him without any default, without allowing him to file any defense to the merits, and apparently without any evidence, the case will be ■ remanded for further proceedings according to law.
    4. Louisiana Digest — Pleading—Par. 62; Taxation — Par. 381.
    Under Act 101 of 1898 regarding tax sales, it is not necessary for the plaintiff or intervenor to state the date of record of the tax deed in order to state a cause of action. Therefore, an excep-' tion of no cause of action aimed against plaintiff’s petition should be overruled.
    5. Louisiana. Digest — Taxation—Par. 336, • 377.
    Where the plaintiff, suing to quiet a tax title; does not give notice in his petition of the book and page' number and date of registry of tax sale nor of a correction deed which was . afterward filed, the petition is insufficient to start the prescription of six months provided by Act 101 of 1898.
    - 6. Louisiana Digest — Taxation—Par. 376, 377.
    ' At the expiration of twelve months after the registry of the tax deed, the plaintiff suing to quiet his tax deed has the right to proceed under Act 101 of 1898, and therefore, his -suit is not premature.
    7. Louisiana Digest — Taxation—Par. 372.
    The words 'in Act 101 of 1898 stating that the “purchaser may institute suit * * * against the former proprietor or proprietors”, clearly implies that the suit shall be brought against all of the former proprietors. Therefore, an exception of non-joinder is properly filed where all of the former proprietors are not made defendants.
    8. Louisiana Digest — Intervention—Par. 5, 12, 13. '
    Plaintiff cannot cut intervenor off from joining in the defense of the defendant by obtaining an erroneous ruling from the district judge not allowing defendant to make any defense.
    9. Louisiana Digest — Taxation—Par. 381; Pleading — Par. 62, 63.
    The lapse of six months provided by Act 101 of 1898 might extinguish a cause . of action by a plea to that effect. An exception of no cause of action cannot be made to do service as a plea of prescription.
    (Note: See Mcllhenny’s Sons vs. Couvillon, p. 734 herein.)
    Appeal from Fourteenth Judicial District Court .of Louisiana, Parish of Avoyelles, Hon. S. Allen Bordelon, Judge.
    This is a suit brought under Act 101 of 1898 to quiet a tax title.
    Defendant filed an exception of ■ no cause of action, a plea of prematurity and exception of non-joinder.
    E. A. Mcllhenny’s Sons filed an intervention.
    Plaintiff • thereupon filed an exception of no cause of action and a plea of estoppel to the intervention. Intervenor dismissed the intervention and filed another one to which the plaintiff filed the same exception which he had filed before.
    There • was judgment for plaintiff and defendant and intervenor appealed.
    Judgment reversed and set aside and case remanded to the lower court to be proceeded with in accordance with the law.
    Weeks and Weeks, of New Iberia, and Porterie and Bordelon, of Marksville, attorneys for plaintiff, appellant.
    L. P. Gremillion, of Marksville, and W. E. Couvillon, of Marksville, attorneys for defendants, appellees.
   CARVER, J.

Plaintiff brings this suit under Act 101 of 1898 to quiet a tax title which he alleges was made by the Tax Collector of Avoyelles parish covering property described in the deed as follows :

“A certain tract or parcel of land situated and being in the Second Ward of the Parish of Avoyelles, Louisiana, containing 33 acres, more or less; being W% of 72 from Mellhenny tract.”

He alleges that the property was adjudicated to him on August 27, 1921, for taxes of 1920 assessed to E. O. Dupuis and that the Tax Collector by 'error made the deed to W. F. Couvillon but that by act passed subsequently the Tax Collector and Couvillon admitted the error and corrected it by inserting plaintiff’s name in the deed instead of Couvillon’s.

He does not give the date either of the tax deed or the correction deed, but says the tax deed was recorded in alienation book A24 at page 140 and that “more than twelve months have elapsed since the date of registry of said deed”, and that the corrective act is recorded in alienation book -------- at page _________ The petition leaves these blank.

He alleges that he annexes certified copies of the tax deed and corrective act and make's them part of the petition; but they were really not annexed. He does not allege when the corrective act was recorded.

Suit was filed November 8, 1922, against E.’ O. Dupuis alone, and on the same day Dupuis’ attorney accepted service and waived citation.

No other steps were taken in the suit by either side until September 6, 1923, when defendant filed an exception of no cause or right of action and also a plea of prematurity based on the averment; that the period of twelve months allowed: by law for redemption of the property did; not begin to run until after the corrective deed, the date of which defendant gives as October 20, 1922, and that the right to proceed under Act 101 of 1898 did not accrue until October 20, 1923.

On November 17, 1923, defendant filed another exception, alleging that the property in question did not belong to him alone but to him and Armand Dupuis in indivisión and that under Act 101 of 1898_ all co-owners were necessary parties and that Armand Dupuis had not been made a party or cited.

On September 12, 1923, E. A. Mcllhenny’s Sons, a. corporation, filed an intervention alleging that it had a mortgage and vendor’s privilege on the property involved and, therefore had an interest in attacking the tax sale. It then alleged various grounds of nullity, substantially the same as those set up in its separate suit against Lemoine this day decided. It also alleged the tender made in that suit. It further alleged, paragraph XIV, as follows:

“that a suit has been brought by it and on its behalf and is now pending to have the said tax sale declared absolutely null and void, and of no effect, and that the bringing of said suit is an absolute bar to any further judgment being rendered in this suit, quieting or confirming any title in the said Lemoine.”

On October 17, 1923, plaintiff filed exceptions to the intervention as follows:

1. No right or cause of action, in that intervenor can only join plaintiff or defendant or oppose both, but did none of these.

2. In the alternative, no right or cause of action, because more than six months had elapsed since the institution of the suit to confirm and more than one year from recordation of the tax deed.

3. Also. in the alternative, that intertervenor was estopped from attacking the tax sale by the tender alleged in its intervention.

On November 17, 1923, no trial having been had of these exceptions, intervenor voluntarily dismissed its intervention, but on the same day filed another one, substantially the same, but containing a formal allegation, which the other one lacked, that it joined the defendant in opposing the plaintiff’s demand.

On January 17, 1924, plaintiff filed exceptions to the new intervention identical with those filed to the old one.

The minutes of court show as follows:

“January 16, 1924. Plea of no cause of action and prematurity and exception and motion filed by Arthur Lemoine to the intervention taken up and argued. Plea of prescription also taken up and argued.
“March 8, 1924. Exception of no cause of action and plea of prematurity filed by E. O. Dupuis on September 16, 1923, overruled. Plea of misjoinder filed by E. O. Dupuis on November 17, 1923, overruled. Intervention filed November 19, 1923, by E. O. Dupuis (meaning, of course, Mcllhenny & Sons) ordered stricken out and dismissed. Exception filed by Arthur Lemoine January 17, 1924, sustained and Arthur Lemoine ordered and authorized to take judgment quieting and confirming titles to property described in petition.”

The minutes show nothing between March 8, 1924, and March 14, 1924, on which day they show as follows:

Arthur Lemoine vs. No. 5203 E. O. Dupuis.

Counsel for E. O. Dupuis, defendant in the above numbered and entitled case and for E. Mcllhenny’s Sons, intervenors in the above numbered and entitled cause, object to the language used in the preamble of the judgment in said case, because said judgment attempts to show that no plea of any nature whatsoever was filed by either the defendant or the intervenors, which is erroneous and misleading, and not in keeping with the records in the matter. „

Objection overruled.

Judgment signed ordering and decreeing that plaintiff’s title to the property described therein be and the same are hereby confirmed and quieted,^ and the said plaintiff, Arthur Lemoine, recognized as the sole and only owner of said property, enjoining and prohibiting the defendant, E. O. Dupuis, as well as his heirs, administrators and assigns, from setting up any right, title or interest to the said property or any part or portion thereof. See decree.

The judgment signed was as follows:

“Arthur Lemoine vs. E. O. Dupuis, No. 5203.
“Fourteenth Judicial District Court, Parish of Avoyelles, State of Louisiana.
“The Honorable S. Allen Bordelon, presiding.
“In the above numbered and entitled case, the defendant having failed to appear and answer or make any defenses or attacks upon plaintiff’s title to the property hereinafter described within the period of six months allowed him from date of notice within which to do so under the law, and the law and the evidence being in favor of the plaintiff, Arthur Lemoine and against the defendant, E. O. Dupuis, it is by reason thereof:
“Ordered, adjudged and decreed, that plaintiff’s title to the property described as follows:
“ ‘A certain tract of land situated and being in the Second Ward of the Parish of Avoyelles, Louisiana, containing thirty-three (33) acres, more or less, being west half (W%) of seventy-two (72) acres from Mcllhenny Tract.’
be and the same are hereby confirmed and quieted, and the said plaintiff, Arthur Lemoine, recognized as the sole and only owner of said property, and the said defendant, E. O. Dupuis, be enjoined and prohibited, as well as his heirs, administrators and assigns, from setting up any right, title or interest in or to the said property or any part or portion thereof.
“Thus done, read and signed in open court at Marksville, Louisiana, on the 14th day of March, A. D., 1924.
“S. Allen Bordelon,
“Judge.”

Prom this judgment defendant and intervenor appeal.

The clerk’s certificate to the record lodged in this court reads as follows:

“State of Louisiana, Parish of Avoyelles, Office of Clerk of Court.
“1 hereby certify that the foregoing thirteen pages contain a true, correct and complete transcript of all evidence adduced, documents filed and proceedings had in the case wherein Arthur Lemoine is plaintiff and E. O. Dupuis defendant, being No. 5203 of the docket of this honorable court; that the following cases, viz:
“No. 5204, entitled Arthur Lemoine vs. Armand Dupuis;
“No. 5499, entitled E. Mcllhenny’s Sons vs. W. F. Couvillon et al;
“No. 5302, entitled E. Mcllhenny’s Sons vs. Arthur Lemoine et al. annexed to this transcript, form a part hereof, said four cases having been consolidated by order of court for the purpose of an appeal to the Second Circuit.
“Clerk’s Office, Marksville, La., May 2, 1924.
“(Seal) J. D. Lecour,
“Deputy Clerk of Court.”

T'he consolidation ’ mentioned in the clerk’s certificate was made by the district judge ex proprio motu.

It has been mentioned that certified copies of the tax sale and corrective act, though declared annexed to the plaintiff’s petition, were not annexed. After the record was lodged in this court certified copies of these instruments were placed therein; but it is admitted that not having been filed below they form no proper part of the record.

We call atention to the evident error in the date of the tax deed, which is given as August 30, 1922.

OPINION.

Plaintiff’s counsel in this court argue that as the record contains no note of evidence the court should presume that the judgment was rendered on proper evidence and therefore affirm it.

They cite:

Boyd vs. Bradley, 134 La. 223, 63 South. 883, and Chenault vs. Howard, 151 La. 991, 92 South. 587.

The clerk’s certificate in this case says, amongst other things, that the record contains all the evidence adduced in the case, and as it contains no evidence at all it would seem that his certificate means that no evidence was adduced which, we are, satisfied from other circumstances shown by the record, is the fact.

In the Boyd case the clerk’s certificate as copied in the report did not state that the record contained all evidence adduced but only that it .contained “all documents filed and proceedings had”.

We have examined the cases cited in the Boyd case, namely:

Graham vs. Rice, 23 La. Ann. 393.

State vs. Campbell, 23 La. Ann. 445.

State vs. DeMonasterio, 26 La. Ann. 734.

Hefner vs. Hesse, 26 La. Ann. 148.

Parham vs. Ogle, 22 La. Ann. 73.

Citizens Bank vs. Ogle, 22 La. Ann. 119.

Nugent vs. Stark, 34 La. Ann. 631.

In re Fazende & Seixas, 34 La. Ann. 1145.

In none of these cases except the Fazende case does the report show whether the clerk certified to the inclusion of all the evidence or not. The reasonable presumption is that he did not so certify. If not, room was left to presume without discrediting his certificate that testimony was adduced which was not placed in the record, perhaps because not taken down.

In the Bringier case, the appeal was by a judgment debtor, not from the judgment against him but from the judgment of his creditor against a garnishee. The garnishee' had confessed judgment, and the court says that defendant introduced no evidence at all.

In the Fazende case, 35 La. Ann. 1146, the clerk’s certificate did not say that the transcript contained all testimony and evidence adduced and although the record did not contain any evidence the court applied the presumption contended for by plaintiff herein. It cited as authority the cases above mentioned.

In the Fazende case, though, and also in the Boyd case, it is apparent that the presumption . was indulged respecting oral testimony and not documentary evidence.

In the Chenault case, the report does not show whether the clerk certified to inclusion of all evidence or not, but the minutes of court recited that evidence was adduced on confirmation of default and the judgment recited that the evidence was in plaintiff’s favor and proved his demand in full.

The court on the original hearing held that inasmuch as the documentary evidence necessary to establish plaintiff’s demand (a deed from Stickney to plaintiff) was part of the court records it was not necessary under Act 43 of 1870 to produce and file a copy in the record of the case; such documentary evidence, so far' as the record was concerned, being on ■ the same footing as parol evidence and hence the absence of the document from • the record did not warrant the presumption that it was not introduced in evidence and there being no note of evidence, it was proper to apply the presumption that the judge had acted on sufficient evidence.

But on rehearing the court held that the document in question was not of the kind covered by Act 43 of 1870, wherefore the presumption could not be applied, and remanded the case for a new trial.

In this case plaintiff could not prove his demand without the tax deed or a copy thereof, and although such deed is a part of the archives of the clerk of the court, who is ex-officio recorder, it is not a part of the court records and the Act of 1870 by its terms applies only to court records.

We think, therefore, the plaintiff’s contention on this score must be rejected.

Furthermore, in both the Fazende case and the DeMonasterio case the court did consider and correct errors apparent on the face of the record.

Such an error appears here, namely, the action of the judge in overruling, defendant's exception and immediately proceeding to render final judgment against him without any default, without allowing him to file any defense to the merits, and apparently without any evidence.

EXCEPTION OF NO CAUSE-OF ACTION.

Defendant’s counsel urges that plaintiff’s petition fails to allege a cause of action because it fails to state the date of record.. of. the tax deed which, they claim, ,i¡3:..sacramental under Act 101 of 1898.

They cite Wiener vs. Scordino, 157 La. 801, 103 South. 159.

We do not understand this case as holding that notice of this date of registry is • necessary in order to state a cause bf action linder Act 101 of 1898. The h'oldih'g merely is that notice of such date is necessary to start the prescription of six months, so that if that notice is not given, the prescription of six months is not available to plaintiff and the way is left open for the former owner to attack the sale not only on the ground permissible after six months from such notice but a}so on any other ground to which the tax, sale may be subject.

The cause of action is, we think, the allegation . that plaintiff has a tax sale and is'entitled.to confirm it.

We think, therefore, the district judge properly overruled the exception of no cause or right of action.

The Wiener case, though,' does decide, as said above, that in order to start the six months’ prescription to running the notice prescribed by the statute, including the date of recording the tax deed, must be given. Unless, therefore, it can be regarded as given in the present case, defendant may still avail himself of any ground of nullity.

, Plaintiff contends, though, that his allegation that the tax deed had been recorded more than twelve months before the suit to confirm was filed is a substantial compliance with the requirement of the' statute in this respect.

We need not express any opinion as .to whether this would have been a sufficient, compliance if the deed had been made,.to plaintiff. It was not made to him and became one in his favor only by virtue of the corrective act subsequently .filed. As to this act, the petition gives neither the date nor the book or page of registry.

In requiring notice of book and' page and date of registry to be given the lawmaker intended, we think, to require these particulars respecting that act, if only one, or all of those acts, if more than one, which purported not only to divest the former owner of the property but to invest the new claimant with title thereto.

Counsel correctly argue that the adjudication is what transfers the ownership, the deed being merely evidence thereof. Where, therefore, the deed first given is erroneous as to the adjudicatee and a second deed is drawn correcting it, it takes both deeds truly to show the doings of the tax collector which effectuate the transfer of the former • owner’s title to the tax purchaser.

In requiring notice to' be given of book, page and date of registry of taxation the object of the law is, we think, to enable the former owner to find on the record, without having to search for .it himself, all the .evidence of the tax collector’s act which are claimed to transfer his property to the tax purchaser. This object is not accomplished by giving notice of book and page and date of registry of the erroneous act and then merely stating that another act was passed correcting the error without giving book and page of the corrective act or any. information whatever as to the date of its registry.

Our conclusion, therefore, is that the notice given in the, petition in this case was insufficient to start the prescription of six months and that defendant is free to assail the tax deed on any ground of nullity to which it may be subject.

PLEA OF PREMATURITY.

We think the district judge properly overruled this plea. Whether correct or not as to the adjudicatee, the tax deed showed a divestiture of defendant’s title and the time of redemption began to run, we think, from the date of registry. Defendant had the right to act on the faith of the public record and treat Couvillon as the purchaser, and redeem or offer to redeem the property from him. The fact that the act needed correction in this respect and was afterwards corrected did not, we think, operate to extend the period during which defendant was entitled to redeem. At the expiration of twelve months after registry of the tax deed we think plaintiff had the right to proceed under Act 101 of 1898.

EXCEPTION OF NON-JOINDER.

We think defendant’s exception that the property did not belong to him alone but in indivisión to him and Armand Dupuis and that said Armand Dupuis was a necessary party to the suit, entitled him to a hearing on that question of fact and. if found true entitled him either to a dismissal of the suit or at least to a stay of proceedings for the purpose of making Armand Dupuis a party. It is true the act does not in express terms require that all co-proprietors be made parties but in saying that the tax purchaser “may institute suit * * * against the former proprietor or proprietors” we think it clearly implies that the suit shall be brought against them all. A good reason for this requirement is that one of the co-proprietors might know of some reason why the tax sale is invalid which is unknown to the others and each is entitled before the tax purchaser obtains judgment against him to require the purchaser to give the proper notice to the others in order to have the benefit of their assistance in the suit without being obliged to notify them himself. It is certain that the judgment would not be binding on any co-proprietor who was not notified, and we think the lawmaker intended that the tax sale should be dealt with as an indivisible entirety and not in such fashion as that it might be held valid as to some and invalid as to other co-proprietors.

In overruling this exception, without hearing evidence, we think the lower court erred.

INTERVENTION.

We think plaintiff’s exception that the petition of intervention disclosed no right or cause of action should have been overruled.

One ground of this exception -was that it could only intervene to join plaintiff or defendant or oppose both but it did neither of these.

The intervenor stated in its petition that it desired to join defendant in resisting plaintiff’s -demand. It is true defendant had not yet filed any defense to the merits but he had filed preliminary pleas which in our opinion he had the right to file, and was evidently intending to file, and we think had a right to file them with a defense on the merits if the plea should be overruled.

Plaintiff could not, we think, cut intervenor off from joining ih the defense by obtaining an erroneous ruling from the district judge disallowing defendant to make any defense.

Another ground of this exception was that six months had elapsed since the suit was filed.

The lapse of six months might extinguish a cause of action but when it does it is by virtue of some law establishing that period as a term of prescription which must be specially pleaded.

We do not understand that the exception of no cause of action can be made to do service as a plea of prescription. If, however, the plea be construed as one of prescription, it cannot prevail as to intervenor, not only for the reasons given above in the discussion of defendant’s exception, but also because the petition of intervention alleged that intervenor had brought a suit to annul the tax sale, without saying when it had been brought.

From all that appears in this record to the contrary it might have been brought before the suit to confirm was filed. As a matter of fact, it was not. But that suit while ordered consolidated with this for the purpose of appeal was not consolidated for the trial in the lower court and neither suit was introduced in evidence in the other.

The district judge, therefore, could not act in this suit on facts shown only in the other.

PLEA OF ESTOPPEL.

This plea was fully discussed in our opinion in the case of Mcllhenny vs. Couvillon et al., this day decided, and it is unnecessary, therefore to repeat the discussion here.

For the foregoing reasons it is decreed:

1. That the judgment of the lower court be set aside.

2. That defendant’s plea of no cause of action and prematurity be overruled.

3. That defendant’s plea that the property was owned in indivisión by him and Armand Dupuis be set down for trial on the question of fact therein alleged.

4. That' plaintiff’s exception of no cause of action to the intervention be overruled, without prejudice to plaintiff’s right to plead prescription.

5. That the case be remanded to the lower court to be proceeded with in accordance with law and the views herein expressed.

6. That plaintiff pay the costs of appeal; those of the lower court to await the final judgment.


text:
    No. 2187.
    Second Circuit Appeal.
    E. McILHENNY'S SONS v. ARTHUR LEMOINE ET AL.
    (June 6, 1925, Opinion and Decree.)
    (This case consolidated with Arthur Lemoine vs. E. O. Dupuis, E. Mcllhenny’s Sons, Intervenors, reported on p. 726 herein.)
    Weeks & Weeks, of New Iberia, and Porterie & Bordelon, of Marksville, attorneys for plaintiff, appellant.
    L. P. Gremillion, of Marksville; W. E. Couvillion, of Marksville, attorneys for defendants, appellees.
   CARVER, J.

This case is between the same parties as the case of E. McIlhenny’s Sons vs. W. F. Couvillon et al., No. 5499 bn the docket of the Fourteenth Judicial District Court of Louisiana, Parish of Avoyelles, this day decided, and involves the same facts, except that the tax sale in this case covered property assessed to Armand instead of O. E. Dupuis, described as follows:

“A certain tract or parcel of land situated and being in the Second Ward, Parish of Avoyelles, Louisiana, containing 39 acres, more or less, being E% of 72 from Mcllhenny.”

The district judge sustained an exception of no cause of action as was done in the other case.

For the reasons given at length in that case, it is now decreed that the judgment •of.the district court be set aside, the plea of- no cause or right of action overruled, .the plea of prescription referred to the merits, and the case remanded to the lower court for further proceedings according to law.


text:
    No. 2187.
    Second Circuit Appeal.
    ARTHUR LEMOINE v. ARMAND DUPUIS. E. McILHENNY’S SONS, Intervenors.
    (June 6, 1925, Opinion and Decree)
    (This case consolidated with Arthur Lemoine vs. E. O. Dupuis, E. Mcllhenny’s Sons, Intervenors, reported on p. 726 herein.)
   CARVER, J.

This case is precisely similar to the case of the same plaintiff against Armand Dupuis this day decided, except that it involves different land and is against E- O. Dupuis instead of Armand Dupuis and Armand Dupuis did not appeal though the intervenor did.

Armand Dupuis not having appe’aled, the judgment of the lower court cannot be disturbed as to him.

But as between plaintiff and intervenor, for the reasons given in the case of Lemoine vs. E. O. Dupuis, it is decreed:

1. That the judgment of the lower court be set aside.

2. That plaintiff’s exception of no cause of action to the intervention be overruled, without prejudice to his right to plead prescription. .

3. That the- case be remanded to the lower court to be proceeded with in accordance with law and the views expressed in the above mentioned case of Arthur Lemoine. vs. E. O. Dupuis.

4. The costs of this appeal to be paid by plaintiff; those of the lower court •to await the final judgment.


text:
    No. 2187
    Second Circuit Appeal.
    E. McILHENNY'S SONS v. W. F. COUVILLON ET AL.
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 729.
    Where the description in a tax deed and other papers taken to the Court of Appeal were insufficient to show just what land was assessed and sold at the tax sale, the case will be remanded for further proceedings according to law if it appears that such proceedings will clarify matters.
    2. Louisiana Digest — Taxation—Par. 381; Estoppel — Pár. 22.
    The defendant is not estopped from pleading or proving the illegality of some of the taxes merely on the ground that his own title was based upon taxes levied by virtue of the same election as were the taxes against which he plead, which is especially true where the taxes were levied for the payment of different installments of the same bond issue.
    3. Louisiana Digest — Estoppel—Pár. 51.
    Defendants cannot avail themselves of the defense of estoppel unless they especially plead it, nor is plaintiff’s allegation of a tender such an allegation of the validity of the tax sale as to destroy plaintiff’s case.
    4. Louisiana Digest — Estoppel—Par. 51; Tender — Par. 7.
    The utmost effect of a tender by a former proprietor to the tax purchaser of the price paid by the purchaser at a tax sale could possibly have would be to estop the former proprietor from disputing amount of the taxes and could not estop him from showing the nullity of the tax sale.
    Appeal from Fourteenth Judicial District Court of Louisiana, Parish of Avoyelles, Hon. L. P. Gremillion, Judge.
    This is a suit to annul a tax sale. An exception of no cause. of action and a plea of prescription were filed by tbe defendant. The exception of no cause of action was sustained and suit dismissed.
    Plaintiff appealed.
    Judgment of the lower court reversed and set aside.
    The plea of no cause of action and the plea of prescription referred to the merits and the case remanded for further proceeding according to law.
    Weeks & Weeks, of New Iberia, and Porterie & Bordelon, of Marksville, attorneys for plaintiff, appellant. /
    L. P. Gremillion, of Marksville, and W. E. Couvillion, of Marksville, attorneys for defendants, appellees.
   CARVER, J.

Plaintiff sues W. F. Couvillon and Arthur Lemoine to annul a tax sale alleged to have been made by Amet Guillott, Tax Collector of Avoyelles Parish, on August 21, 1921, for taxes, of 1920 assessed to E. O. Dupuis.

Plaintiff alleges that the deed was made to Couvillon but that an instrument was afterwards filed, signed by Couvillon and by Guillott, not as sheriff but personally, reciting that it should have been made to Lemoine and consenting'that'Lemoine’s name be inserted' therein instead of Couvillon’s.

The deed is alleged to describe the property thus:

“A certain tract or parcel of land situated and being in the Second Ward of the Parish of Avoyelles, Louisiana, containing 33 acres, more of less, being W% of 72 from Mcllhenny Tract.”

Plaintiff further alleges that by virtue of said deed Lemoine is claiming a part and under another like deed is claiming the remainder of a tract of land sold by it on July 25, 1918, on partial terms of credit to E. O. Dupuis and Armand Dupuis in indivisión, on which it reserved and still has a mortgage and vendor’s privilege, to secure' the credit portion of the -price, which land is still owned in indivisión by E. O', and Armand Dupuis and is described' as follows:

A certain tract or parcel of land sit-' uated in Avoyelles Parish, Louisiana, located about two miles north of the town of Marksville, and containing seventy-three and 70-100 arpents, being lots 10, 11, 12 and 13 of a plat of survey of the sub-division of what is known as the Mcllhenny plat, made by W. F. Messick, and on file in the recorder’s office of Avoyelles parish; bounded north by lands of C. F. Bordelon, on the south by lots 5, 6, 7, 8 and 9 of said Mcllhenny tract, and on the east by land of * » * and on the west by. public road.

And that said Lemoine is seeking by virtue of said tax deeds to dispossess said E. O. and Armand Dupuis from the' property covered by its mortgage and vendor’s privilege.

Plaintiff also alleges that within less than twelve months after the instrument substituting Lemoine for Couvillon as the tax purchaser he made a tender to Lemoine to redeem the property and that Lemoine had agreed to accept the tender and drop the proceedings which he had commenced, but that upon the tender being made he refused it, which action is alleged to constitute a fraud ,upon petitioner.

The grounds of ’ nullity alleged against the tax sale involved in this case are hereafter mentioned.

Defendant filed an exception of no cause or right of action and afterwards a plea of six months’ prescription.

The district judge sustained the exception of no cause of action and signed a judgment dismissing the suit upon that express ground.

From the minutes it would ■ appear that he has also sustained the plea of prescription, but the judgment as signed is' sileiit ■ as to this.

In the. able brief filed by defendants’ counsel in this court he discusses some of the various grounds alleged as nullities as follows:

1.

Insufficient description of the property sold.

He refers to the following cases as holding that the description is sufficient if it serves to identify the property, namely:

Schwartzenburg vs. Schwartzenburg, 138 La. 294, 70 South. 230.

Weber vs. Martinez, 125 La. 663, 51 South. 679.

Coaux vs. Beaulieu, 123 La. 684, 49 South. 285.

Board of Commissioners vs. Concordia Land Co., 141 La. 247, 74 South. 921.

In our opinion, none of these cases meet the issue as presented at present. It may be that after trial on the merits it will appear that the description in the tax deed is sufficient to identify the property; but we cannot say that it appears to be such on the face of the papers, and plaintiff’s counsel allege that it is not sufficient.

It is true the description in the deed locates the land in the Second Ward of Avoyelles parish, but presumably this- ward contains many square miles so that this part of the description means little in the way of identifying any particular 33 acres.

It is true also that it says the 33 acres, more or less, is the west half of the Mcllhenny tract. We cannot surmise whether this means lot 72 of the Mellhenny tract or 72 acres of the Mellhenny tract.

It is conceivable, too, that the Mellhenny tract may comprise a great many acres of land. If so, and the “72” means acres, it would be, in our opinion, a very insufficient description, because an undefined 72 acres to be taken out of a larger tract might be taken anywhere in the tract.

2.

That the tax collector did not sign the deed.

Counsel says that this is refuted by the -deed attached to the petition in another suit. Neither this deed, though, nor the petition in the other suit was filed in this suit, and there is nothing in this suit to show that the deed was signed by the tax collector but, per contra, the petition herein alleges that the deed was not signed by the tax collector, which allegation, on trying an exception of no cause of action, must be taken as true.

3 and 4.

That the Police Jury failed to adopt a budget for the year 1920 as a basis for the levy of parochial taxes.

Revised Statutes, 2745, provides:

“The police jury of the several parishes of the State, before they shall fix and decide on the amount of taxes to be assessed for the current year, shall cause ,to be made out an estimate, exhibiting the various items of expenditures required; and cause the same to be published in the official newspaper published of the parish, or in parishes where an official newspaper is not published, then by posting up written statements of said estimates in at least three of the most public places in such parishes, at least thirty days before their meeting to fix and decide on the amount of taxes to be assessed as aforesaid.”

In the case of Waggoner vs. Maumus, 112 La. 229, 36 South. 332, the court held that the failure to comply with this section of the Revised Statutes was fatal to the validity of the tax sale.

Counsel for defendants cite the case of Duffy vs. Peneguy, 148 La. 414, 87 South. 25, in which the court says:

“In a large number of cases this court has held that a tax sale is equivalent to a sheriff’s sale in execution, and that, where a part of the taxes for which the sale is made, although actually levied by the proper authority, is illegal, and the owner of the property allows it to be sold for taxes, he cannot, after the sale has been consummated, set the sale aside for that reason, any more than the owner of property sold under a writ based on a judgment, where part of the debt is not due, can set aside a sheriff’s sale for that reason.”

Citing various authorities.

In. our opinion, though, this case does not overrule the Waggoner case, above cited, nor do we find any other decision overruling it.

The facts in the Duffy case were that both parties were claiming under tax sales based upon the same kind of taxes. When defendant sought to introduce proof as to illegality of some of the taxes, plaintiff’s counsel made a formal objection, pleading, amongst other things, that defendant was estopped from questioning these taxes on the ground that his own title was based upon taxes levied by virtue of the same election. as were the taxes against which he plead illegality. The taxes in question were taxes in support of an issue of drainage bonds for one installment of which he or his authors had bought the property. The plaintiff was claiming under a tax sale made in part for taxes levied to pay a later installment of the same bonds.

Besides these alleged grounds of nullity, plaintiff alleges others, the merits of which defendants’ counsel does not discuss. These are as follows:

1. That the assessment of the property was erroneous,’ being'to E. O. Dupuis alone, although ' it was owned in indivisión by E. O. Dupuis and Armand Dupuis.

The Constitution of 1898, Article 233, and the Constitution of 1921, article X, section,.11; contemplate that property shall be assessed to it.s.true, owner.

Section 19 of the .revenue act, Act 170 of 1898, requires that it be so assessed. We take the following extract from Louisiana Digest, volume VII, page 150, section 333:

“It is well established on principle and by authority that a tax sale of property assessed in the name of one who is not the owner, without service of any notice of seizure on the real owner, is an absolute nullity and passes no title.”

2. That no legal notice was given to the owner that the taxes were due.

The above cited articles of the Constitutions of 1898 and 1921 as also section 50 of Act 170 of 1898 require this notice.

3. That the tax collector, instead of offering the least quantity of the property that the purchaser would take and pay the taxes, offered and sold all the property' for $10.51 more than the amount assessed against it; thereafter refunding the surplus of $10.51 to the tax purchaser.

The above mentioned articles also require that the property be offered for sale, not to the highest bidder in money but to the bidder who will take the least amount of the property and pay the taxes.

This is also the requirement of section 64 of the revenue act.

Defendants’ counsel apparently relies on shutting out inquiry into theáe ■ matters by arguing that plaintiff is estopped not only from urging these alleged nullities but also from attacking the sale at all by reason of the tender which it alleges in its petition it had made.

Defendants did not plead estoppel and for that reason if for no other reason could.not avail themselves of such defense even if it were good. However, if the contention of defendants’ counsel 'be that they are relieved of the necessity of pleading estoppel because plaintiff’s allegation of a tender amounts, to such a recognition of the validity of the tax sale as destroys its own case, we do not think the contention sound.

Counsel for plaintiff cite a decision of the Orleans Court of Appeal, namely, Richardson vs. Vahn, Orl. App. 382, as holding:

“The right to redeem property sold for taxes and the action to annul the tax sale exist concurrently and are not exclusive of each other.”

We have not verified this citation hut it seems to us correctly to express the law.

The above mentioned articles of the Constitution require refundment to the tax purchaser of the price he paid for the property including all taxes and costs with ten per cent per annum interest before any judgment annuling the tax sale shall have effect. They also recognize his right to redeem within the time mentioned.

We have been referred to no authority which holds that an offer to redeem is such a recognition of the validity of the tax title as to deprive the tax debtor of the other right which the articles contemplate he shall have, namely,. to annul the sale if there a,re any grounds for which it should be annulled.

The case cited by counsel for defendant, State vs. Ross, 144 La. 898, 81 South. 386, defining the meaning of “redeem”, “repurchase”, etc., afford no support in our opinion, to his contention on this score.

In tendering the price, the utmost effect it could possibly .have, in our opinion, would be to estop the former owner from disputing the amount of the taxes.

The holding in Davis vs. Millaudon, 17 Ann. 97, is simply to the effect that a tender is an admission that the thing tendered is due. The thing tendered here was money which may have heen due whether the sale was good or bad.

In Cooley vs. Broad, 29 La. Ann. 345, and Machine Co. vs. Newman, 107 La. 712, 32 South. 38, the holding is that where all the conditions exist which, by law, create a legal relation, the effects flowing legally from such relation will follow whether the parties foresaw and intended them or not.

In these cases the parties had made contracts, one of which contained all the elements of a partnership and the other all the elements of a sale. The court held that the contracts did make, in the one case a partnership and in the other a sale, although the contracting parties may not have had the affirmative intention that the contracts should so result.

We do not perceive how this doctrine can preclude the plaintiff from asserting one legal right because of his previous effort to avail himself of another legal right.

Defendants’ couhsel apparently relies also on the plea of six months’ prescription as curing all the nullities alleged against the tax sale.

This prescription cannot, in the present state of the record, be sustained, whatever may be the decision on it when the case is tried on its merits.

That prescription only begins to run from the time notice has been given of the sale, which notice must not be given until the period of redemption has expired.

See Constitution of 1898, Section 233. Constitution of 1921, Article X, Section 11, Act 101 of 1898.

In the petition in this case it is true some allusion was made to efforts of Lemoine to dispossess Dupuy of the property (see paragraph 6) and also allusion is made in paragraph 23 of the petition to a suit brought hy' Lemoine to quiet his tax title, which suit, says this paragraph:

“was filed well within the redemption period”.

Nowhere in the record, though, was it stated when, if ever, the notice was served which was required to start the six months’ prescription.

It is true that this case comes up on one appeal with three other cases from the lower court which, after separate trial and rendition of separate judgments, were ordered by the judge, on his own motion, to he consolidated for the purpose of an appeal. We do not think, though, that this makes these other suits a part of the record in this case so as to justify us in taking notice of anything in those cases.

We will not, in the present state of the case, pass on the plea of prescription at all; hut we are of the opinion that our learned brother of the lower court erred in sustaining the plea of no cause or right of action.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be set aside, the plea of no cause or right of action overruled, the plea of prescription referred to the merits and the case remanded for further proceedings according to law.


author: MOUTON, J.

text:
    No. -.
    First Circuit Appeal.
    JOE BATON v. HAMMOND LUMBER COMPANY, LTD.
    (June 12, 1925, Opinion and Decree.)
    (June 30, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Negligence—Par. 25.
    Where one who had been in the employ of a lumber company but was not acting in the course of his employment at the time of the accident, was injured by logs falling on him after he had attempted to force himself onto a lumber train against the orders of the brakeman, he is contributorily negligent and not entitled to damages.
    2. Louisiana Digest — Railroads—Par. 54, 55.
    Where one attempts to force himself onto a lumber train against the orders of the brakeman and against the rules of the company, he is similar to a trespasser, even though he was an employee of the company and allowed certain privileges around the camp and the commissary of the company; and therefore, the company is not liable for damages resulting from the accident which followed.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Judicial District Court of Louisiana, Parish of Livingston, Hon. Columbus Reid, Judge.
    This is a suit for damages for personal injuries caused by the falling of logs from a log train.
    There was. judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    W. A. Benton, of Baton Rouge, attorney for plaintiff, appellant.
    S. S. Reid, of. Amite, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff received serious injuries from a log which fell on him from a train of defendant company on the 2nd day of April, 1923. He sues defendant for $10,000.00 based upon various items of damages declared upon in his petition. His demand was rejected.

The accident occurred in the morning alongside the track of a logging road of defendant company. Plaintiff had been in the employ of defendant for some time prior to the occurrence, but on the day of the accident was not in the employ of the company, as it is by him alleged. On the day he was injured, had gone to the commissary department of the company to buy a few articles he needed. In company with one, Simly Hughes, he went to the house of Mattie Hughes which was situated a short distance from the track of this logging road. He had gone there with his companion on a friendly visit. There was a large camp of railroad laborers there or in that vicinity. Plaintiff had been many 'years an employee of the company and obviously there was no objection to his presence at the camp or the commissary. He 'certainly had not gone there in the discharge of the duties as an employee on that day, nor at the invitation of the company. His presence at the Mattie Hughes’ house, as far as the record shows, was not known to the defendant. Clearly, he was not an invitee.

The log train had stopped about opposite the Mattie Hughes’ house to take some water. Plaintiff and his companion, Simly, who were in the house at that time, proceeded to walk towards the train. Simly was in the lead. He says, he get next to the train, so close he could have put “his hand on it;” that he looked back, saw plaintiff as near to the train as he was, coming towards him, walking fast, and “right by the train.” He says that the train started to move and that he walked back from the track as he knew it was dangerous to be that close to a train when moving. He says, he then hollered to plaintiff to “look out,” and that instead of plaintiff running back from the track, he ran in the same direction the train was going. He explains that there was only a little mud on the side of the track where they were standing which plaintiff could have easily jumped if he had attempted to get away from the train. Plaintiff admits in his testimony that Simly hollered at him to “look out”. In this respect these witnesses agree. There can be no doubt that plaintiff remained in dangerous proximity to" this moving train, because if he had stepped aside which he could have easily "done, he would have escaped injury as was the case with Simly, his companion.

Anthony Magee, the brakeman on the log train in question, says, plaintiff came up 'close to the train which had started after taking water, and made a motion or attempt to catch it as it was moving on. He says, he told him to get back, that he stepped aside about one foot, still-remaining close to the car. Magee explains he was then on the ground taking- water, and was at a distance of about five feet from plaintiff. He says, after plaintiff had thus stepped aside, he again tried to catch on to another car of that train, and this, after he had- warned him from the top of the car, not to attempt it. He testified, that “time and again” prior thereto, he had told plaintiff that it was against the rules of the company to ride on log trains, with the exception of those of the crew employed to operate trains of that character. Jenks, manager of the log department of the company says that such are the rules of the company. Plaintiff unquestionably knew these rules existed when he thus tried to board the train. The proof shows besides, that for five years prior to the accident he had been working on logging trains as a member of the steel gang. He admits that he had seen where a log had fallen alongside of the track, but disclaims that he knew there was any danger of. logs falling from such trains, and causing damage to persons that might be walking along railroad tracks. In his rebuttal testimony, he says, however, that he was trying to get where Simly, his companion, was, because he did not know what would happen, and he was afraid the log would roll over him. It is therefore plain that plaintiff, when hurt, whs acting in direct violation of the rules of the company, and also with full knowledge of- the danger and risks incidental to the position in which lie placed himself at the time of the accident. Plaintiff said that the logs on that train had not been properly tied or chained, as the rules of prudence and safety required. Defendant made a strenuous effort to prove that they were not. If that be "true, as plaintiff was aware thereof, the greater became his negligence, in thus attempting to board that train under such a perilous situation. In the case of Walker vs. Nona Mills Co., 151 La. 738, 92 South. 318, it appears that the plaintiff was killed by a log falling on him from a conveyor while he was passing under it in a cart in which he was carrying slabs from a pile on the premises of a sawmill company. The' court found he had worked at and about the conveyor for many years and had full knowledge of the danger of logs falling therefrom. The court said the danger was or should have been obvious to him because logs which were laying around could have fallen there only from the conveyor. Here, plaintiff knew of the danger as appears from his own testimony, and which from his long service as an employee of the company he was obviously bound to know. In addition to this, he had been warned of the danger when he was repeatedly told that riding on these log cars was against the rules of the company, and also when at the very moment of the accident, and a little while before, he was ordered by the brakeman to step back, and not to get on the car. Counsel for plaintiff refers us to the case of Price vs. Lee Lumber Company, 125 La. 888, 51 South. 1025. In that case the evidence showed that plaintiff had had experience in the logging business for more than three years, and had been employed in arranging logs loaded on a logging car. It was shown in that case that a log had rolled off the car and falling on plaintiff inflicted injuries for which he brought suit in damages. The court found that the danger to be apprehended from the accidental rolling off of the logs was as apparent to him as to any one else, and dismissed his action. Here, the danger was not only apparent to plaintiff but he had furthermore been warned thereof prior to the day of the accident, and actually on that very occasion. There are therefore stronger reasons for the dismissal of this claim than appeared in the case just above quoted. Counsel for plaintiff cites Strickland vs. Louisiana Ry. & Navigation Co., 134 La. 238, 63 South. 888. In the case a railroad company had given the use of its track for the operation of the logging trains of a lumber company. The court held that the employees of the lumber company were not trespassers on the property of the railroad company; that it was negligence for the railroad company to allow its cars to stand on its tracks at night without any lights to warn or any one to give notice to any train of the lumber company which might be using the tracks, and if for failure to give, the proper warning, an employee of the lumber company was injured, the railroad company was liable. Obviously, the defendant company here was in no sense a trespasser, and was responsible for no act towards plaintiff, that could bring it within the rule announced in that case. In the Nona Mills suit, 151'La. 738, 92 South. 318, very similar to this case in most of its essential particulars, the court said that plaintiff’s husband was a mere, licensee. At most that is. what plaintiff is in this case. In reality, his conduct in attempting to force himself on the train against the orders of the brakeman makes him appear more in’ the light of a trespasser than of a licensee. He is not entitled to damages as was held by the district judge.