source: Caselaw Access Project

author: MoNROe, J.

license: Public Domain

text:
    No. 13,236.
    Union Oil Company vs. L. H. Marrero, Sheriff and Ex-Officio Tax Collector, et al.
    Syllabus.
    1. So much oí Section 11, oí Act 171, of 1898, 'as undertakes to reqhirfe tie ■payment of license for tlie business of manufacturing cotton seed oil cake, and cotton seed meal, is repugnant to the provisions of Article 229 of tlie Constitution, and is therefore void. These products are not to be regarded, for the purpose of the license law, as mere incidental resultants in the manufacture of cotton seed oil.
    2. Where a manufacturer is also engaged in business as a wholesale dealer, and buys and sells products other than those manufactured by himself, he is within the law, requiring a wholesale dealer’s license, as well ,with respect to the products -manufactured by him, 'and sold in the course of that business, as with respect to products bought by him on the market and so sold, and he owes the license upon the basis of his gross receipts from all sales.
    3. The business of refining crude cotton seed oil is not a manufacturing business within the meaning of the provisions of Article 229 of the Constitution, or within the meaning of the Statute law imposing a license tax on the business of “manufacturing cotton seed oil.”
    APPEAL from the Twenty-First Judicial District Court for the Parish of Jefferson. Rost, J.

      T. M. Miller for Plaintiff and Appellee.

      Robert J. Perkins for Defendant and Appellant.
   The opinion of the court was delivered by

MoNROe, J.

The evidence shows that the plaintiff paid $8730.00 for State and parish licenses (being $4375.00 for each) for the year 1899, and that said payment was made upon the basis of the follow^ ing statement of the business done in 1S98, to-wit:

GretNa Refinery.'

Receipts from sales of refined oil. .. .$1,657,524.38

Receipts from sales of refined soap. 85,749.51

Receipts from miscellaneous sources... 1,380.54

Total $1,744,654.48

Deduct — ■

¿Trade oil transferred from Union Oil Obmpany’s. Orescent Mill ...•..$ 248,154 11

Crudo oil purchased from Union Oil Company’s interior mills— Uidalia mill,,Hamilton mill, Monroe1 mill, Buukie1 mill. 221,556 00>

On which amount, taxes have been j)aid. Soap values, exempt from taxation.....- 85,149 51

Balance ...... .$1,188,594 81

Orescent Mill, total receipts ... 612,603 22:

Grand total .........$1,801,198 03.

The payment a-ppears to have been made agreeably to section 11, of Act 171, of 1898', which reads: “That for carrying on each business! of manufacturing' cotton seed oil, oil cake, or cotton, seed meal, the, license shall be based on the gross annual receipts, as follows * *

uFourth Ql'ass: When the said gross annual receipts are one million,- seven hundred and fifty thousand dollars, or more, and less than two million dollars, the license shall be four thousand three hundred and seventy-five dollars ($4375.00).”

it further appears that the payment was made by a representative ‘of the- plaintiff, who was instructed to pay what was legally due; and that he made the payment in anticipation of legal advice, which had. been asked, as to part of the amount, and against such advice, as to the balance, in order to avoid incurring the penalty of delinquency; and that, soon afterwards, the plaintiff applied to the tax collector, claiming that there had been an overpayment, in error; whereupon, that officer communicated with the 'State Auditor, and by his authority, retained the amount received for the State in order that the matter might be inquired into, and the error, if any should be found, corrected. The amount collected for the account of the Parish, had been turned over to the police Jury, but that body has been made party defendant, and' makes no objection on the ground of mis-joinder.

It is also shown that the business done at the Gretna refinery consists of refining oil (some of which is manufactured by plaintiff, at other establishments, but the greater proportion of which is bought ¿on the market), of manufacturing soap, and of selling the oil, so refined, and the soap, so manufactured, and other products.

Plaintiff’s gross receipts from all sales are shown ‘to b'e $2,108,-303.44. Of this amount, it appears that, $1,'144,634.48 is received from sales made at the refinery, including $248,754.00 received from sales of oil manufactured at, and transferred from, the Crescent' Mill; $221,-556 received from sales of oil manufactured at,-and transferred from, other mills owned by the plaintiff; and also including $85,'149.51 received from the sale of soap manufactured at said refinery. The remaining $363,849.11 (being the difference between the' $2,108,503.44 and the $1,744,654.43 as stated above) ■ represent the proceeds of sales of oil cake, meal, and linters, manufactured at the 'Orescent Mill. Whether these sales are made at the mill or the re* finery does not clearly and affirmatively appear.

The position of the plaintiff, in regard to its liability for licenses, may fairly be stated as follows, to-wit:

That it should pay a manufacturer’s license, based on the oil product of the Orescent Mill, under section 3 of Act -171 of 1898, and not under section 11 of that Act; that if is exempt from the payment of a manufacturer’s license with respect to the oil cake, meal, and lint* ers, manufactured at said mill, and that said section, in ;so far as it undertakes to impose such a license, is unconstitutional; that it is' also exempt from the payment of any license with respect to the soap manufactured at the refinery; and that, as to the oil refined, and sold, at said refinery, it is not liable as a manufacturer, but as a wholesale dealer.

The judge a quo found the plaintiff liable for a manufacturer’s license, with respect to the oil, and also the oil cake and meal, maau* factored at the Crescent Mill; holding that the latter products were incidental to the manufacture of the oil. The receipts from the sale of the oil, oil cake ,and meal, amounting to $612,603.22, the license was fixed, under the “Ninth Class”, in section 11 of the Act, at $1250.00.

The learned judge also found the plaintiff liable for a wholesale dealer’s license based on receipts from sales made at the 'refinery, amounting to $1,744,654.43, after deducting therefrom $248,549.11, as proceeds of sales of oil transferred from the Orescent Mill; $221,-556.00 as proceeds of sales of oil transferred from plaintiff’s other mills; and $85,749.51 as proceeds of sale of soap manufactured at the refinery; the receipts upon which the license is. based being $1,188,-594.81, and the license being fixed under the eleventh class, in section 6 of the Act, at $300, thus making the total for which plaintiff is held bound, to each the State and the parish, $1550.00.

From the- judgment thus rendered, the defendants, the sheriff and tax collector, and the pólice jury, have appealed; and the plaintiff has filed an answer praying that the judgment be increased in its favor. The able counsel who represents the appellants informs us, in his brief, that the appeal was taken “largely because the sheriff is loath to return an amount equal to $2825.00 which he has collected on behalf of the' State, without a judgment of the highest court of the State”, etc. ‘

The liability for the, manufacturer’s license, based on the oil product of the Crescent Mill, being admitted, the question which remains, in. that connection, is, whether such license is exigible under-section 3, or section 11, of the statute. The provisions in question read as follows:

“Sec. 3. Be it further enacted, etc.

“MANUFACTURERS.

“Par. 1. That for carrying on each business of manufacturer subject to license under article 229 of the Constitution, the license shall be based on, the gross annual receipts of the business, as follows, to-wit;

* -» * #■ * *•

“Fifteenth. When the said receipts are two hundred thousand dollars, or more, and under three hundred thousand dollars, the license shall be. one hundred and forty dollars ($140).

■A ■» -x- * *

“Section 11. Be it further enacted, etc. * * * That for carrying on each business of gas-light, electric light, water works,- * * * manufacturing cotton seed oil, oil cake, or cotton seed meal, the license shall be based on the gross annual receipts, as follows, to-wit: (and then follow twenty classes).

#*•»***

"Sleventh Class. When the said gross annual receipts are two hundred thousand dollars, or more, and less than two hundred and fifty thousand dollars, the license shall be five hundred dollars ($500).”

In this connection, it may be remarked that article 229 of the Constitution authorizes the imposition of license taxes, and, at the same time provides for the exemption therefrom of “manufacturers other than those of distilled, alcoholic, or malt liquors, tobacco, cigars, and cotton seed oil.”

It is not easy to understand why, since all manufacturers subject to license under the Constitution, were included in the general terms of section 3 of the Act, they should again be specifically provided for in section 11. We must accept the statute, however, as we find it, and, doing so, we are of opinion that for the reason that section 11 is specific, whilst section 3 is general, in its terms; and for the further reason that section 11 follows, while the other precedes, section 11 must be held to control, and therefore, that, upon the gross annual receipts, from the sale of oil manufactured in the Orescent Mill, amounting to more than two hundred thousand, and being less than two hundred and fifty thousand dollars, the plaintiff is liable for a' license of $500.00.

We are unable, however, to concur in the views expressed by the District Judge that cotton seed calce and cotton seed meal, are to be regarded, for the purposes of the present question, as merely incidental to the manufacture of cotton seed oil. The evidence shows that the whole product of the Crescent Mill yields $612,603.22, and that, of this amount, $248,154.00 represents the proceeds of the sale of oil, whilst $363,849.11 represents the proceeds of the sale of the other products mentioned. These different products, — the oil, the cake, and the meal, result from the subjection of the cotton seed to certain processes of manufacture, which are identical only up to a certain point. It is sufficient, however, for the present purposes, to say, that they are all resultant from a manufacturing process; that, under the Constitution, it is competent to impose a license tax upon a manufacturer with respect to one, and that it is not competent to impose such tax, with respect to the others, and hence, that so much of section 11, of Act 171 of 1898, as imposes a license tax for the manufacture of cotton seed cake, and cotton seed meal, is repugnant to the Constitution, and void. Manufacturers of soap are also within the exemption of the Constitution, and the statute makes no attempt to impose a license tax upon them.

The next question to be considered is, whether the plaintiff should pay a license, as manufacturer for the business of refining oil, conducted at its Gretna refinery? It is shown that no seed is crushed at this establishment, the business there conducted consisting in refining the crude oil transferred from plaintiff’s mills, where the crushing is done, and obtained elsewhere, by purchase, and in making-sales.

The process of refining is thus described by the first Vice-President of the plaintiff company:

“We buy crude cotton seed oil, which is the color — a dark red color, and, in the process of refining, we use caustic soda, which blends with the red coloring matter and is deposited in the bottom. The oil is then a straw color, being free from sediment -and other impurities. We then, by heat, treat the oil with hard fuller’s earth, and other chemicals ferment to bind the color and improve the odor. The coloring matter deposited at the bottom of the tank is called soap stock, and, with it, we make soap. The yellow oil is then ready for the market and is sold, in barrels or tank cars.”

Under the decision of this court in the matter of The State vs. American Sugar Refining Co., 61 Ann., 562, and the authorities there collated, the process thus described is not a manufacturing process within the meaning of the constitutional and statute law' upon the subject of licenses.

The final question is, ás to plaintiff’s liability as a wholesale dealer.

Where a corporation is engaged in a manufacturing business, which is exempt from the license tax, and confines itself to the sale of the products manufactured by it, the business of selling such products, so manufactured, may wrell be considered as covered by the exemption accorded to the manufacturer. Where, however, as in this case, the corporation, in addition to its manufacturing plants, maintains another, and distinct, establishment, where it is engaged in the business of a.wholesale dealer (selling other than its own products), which is not exempt from the license tax, it must, necessarily, pay the license imposed upon such business; and the amount of that license, under the law, is regulated by the gross receipts of the business. If, then, the corporation chooses to put into this business, of wholesale dealer, for which a license is required, products, as a manufacturer of which it is exempt from license, such a course does not, as far as we can discover, render it any the less liable for the license as wholesale dealer, nor does it change the law establishing the basis upon which that license is fixed. Or, to put the proposition in other language, if the manufacturer confined himself, so far as the business of buying and selling is concerned, to buying raw material, which he converts, by the process of manufacture, into something else, and selling such product, his buying and selling is legitimately a part of his business of manufacturer; but when, in addition to the, business of manufacturer, he conducts a distinct business, of buying and selling products or merchandise not manufactured, or intended to be manufactured, by him, then that distinct business is regulated by its own law and no part of it is properly part of the other distinct business of manufacturer.

' Under this view, the plaintiff should be held liable for a wholesale dealer’s license based on gross receipts exceeding- $2,000,000, and not exceeding- $2,500,000 (Sec. 6, class nine, Act 111, 1898, p. 393), the amount of which is fixed at $550.00. This being added to the $500 for which it is liable for license as manufacturer, makes a total liability to each, the State and parish, of $1050, and entitles it to be reimbursed the difference between that amount and the $4315 paid to each of said defendants.

It may be remarked here that it appears from the record, that the plaintiff has agreed to pay the costs of the lower court.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, the Union Oil Company, have and recover judgment against the defendant, L. IT. Mar-rero, sheriff and tax collector, in the sum of $3325.00, and against the defendant, the Parish of Jefferson, in the sum of $3325.00; and'that said plaintiff do further have judgment against said Marrero, sheriff and tax collector, directing that he take up the licenses issued to the plaintiff for the year 1899, and issue, in place thereof, State and parish licenses for said year, in accordance with the views expressed in this opinion. It is further ordered that the defendants pay the costs of the appeal and that plaintiff pay the costs of the lower court.

The Chief Justice partially dissents from the views expressed in this opinion.


author: Nicholls, C. J.

text:
    No. 13,093.
    Succession of Judah Hart.
    Syllabus.
    The heirs accepting a succession unconditionally may be compelled to give security for the debts of the succession or submit to an administration of the succession. C. C., 1011-1012. •
    The creditors’ right in this respect is not defeated by an ex parte order of court given within 'three months after the unconditional acceptance of the succession by the heirs, whieli, recognizing them as such, places them in possession thereof.
    The mere reference to themselves as “children and heirs” of a deceased person made in a petition by his children asking for the probate of his will and the placing of his succession under administration of executors selected by him, is not an unconditional acceptance of his succession.
    An unconditional acceptance of a succession by heirs does not date back by relation to the date either of the death of the author, or to the date of a prior acceptance under benefit of inventory, in computing the three months after unconditional acceptance during which the right of creditors exists under the law to exact security from heirs.
    Creditors of a succession are not estopped from demanding security from the heirs during the three months following their unconditional acceptance of the succession, because after an order of court recognizing them as heirs and placing them in possession they have sued them as such m their petition and referred to the order placing them in possession.
    APPEAL from the Civil District Court, Parish of Orleans. King J.

      Omer Tillere for Mrs. Hornor ei als., Plaintiffs, Appellants.

      Olegg & Quintero for the Heirs of Judah Hart, Defendants, Ap-pellees.
   The opinion of the court was delivered by

Nicholls, C. J.

Judah Hart died on the 26th of January, 1898, leaving three children, (Samuel J. Hart, Annette Hart, widow of Maurice Winehill, and Maurice J. Hart,) issue of his marriage with his predeceased wife, Jane Barnett.

He left a last will and testament in olographic form, in which he appointed Maurice J, Hart and Samuel J. Hart his testamentary executors, though whether with or without seizin does not appear as the will, though constantly referred to, is not in the record.

On the 15th of February, 1898, upon a petition of Maurice J. Hart and Samuel Hart, and Annette Hart, widow of Winehill, in which they recited that they were the children and sole and only heirs of the deceased, and that he had left a last will and testament, this will was probated and ordered executed and the petitioners Samuel Hart and Maurice J. Hart recognized and ordered to be confirmed as testamentary executors. On the same day these parties qualified as such and letters testamentary issued in their favor. It appears to be an undisputed fact that by this will Judah Hart constituted Samuel Hart and Helen H. Hart, wife of Maurice J. Hart, as universal legatee's; but mating a legacy of some kind to his daughter, Mrs. Wine-hill.

On the first of March, 1898, by an act before Quintero, Notary, Mrs. Annette Winehill accepted the legacy made to her in the will, but renounced any and all claims she had or could have against the Succession, save and except the legacy, and renounced the succession of her father, and consented that the instituted heirs be sent into possession thereof.

On the same day by another act before the same Notary, Maurice J. Hart renounced forever any and all claims he had or might have as forced heir to the succession of Judah Plart, and renounced his succession and consented that the instituted heirs be sent into possession.

Upon the same day, (March 1st, 1898), Samuel J. Hart and Helen H. Hart, wife of Maurice J. Hart, filed a petition in the District Court in which (after reciting the death of Judah Hart, the opening of his succession in the said court and the order of the same probating and ordering executed and registered the will of the deceased by which they were constituted universal legatees, and that they were entitled to the enjoyment and possession of the estate left them by the will), they alleged that Maurice J. Hart, Samuel J. Hart, and Annette Hart, widow of Maurice Winehill, Were the only surviving children of Judah Hart, and as such would be entitled to be the heirs of his entire estate; that Maurice J. Hart and Annette Hart had renounced the succession of their father; that there was no need for an accounting by the executors and they waived any claim therefor; that they were as testamentary heirs, instituted by the last will and testament of the deceased, entitled to be sent into possession of the entire estate; they, in view of the premises, prayed that they be recognized and declared to be the sole and only testamentary heirs and universal legatees of Judah Hart, and that they he by judgment of the court sent into possession of his estate.

On the same day this petition was filed the court, “considering the; allegations of the same and the affidavits and proofs in the record, and the renunciation of Maurice J". ITart, and Mrs. Annette Wine-hill”, ordered, adjudged and decreed that there be judgment recognizing the petitioners as the sole’ and only testamentary and instituted heirs and legatees of Judah Hart and that as such they be sent, into possession of his estate.

On the 2nd of March, 1898, Mrs. Harriet A. Horner, widow of Joseph P. Horner, and various other persons instituted suits in the Civil District Court, the suit of Mrs. Ilorner being- entitled Mrs. Harriet A. Horner vs. R. T. McDonald et al., and those of the other parties dffering only in the names of the- different plaintiffs, in which the plaintiffs averred that R. T. McDonald and the heirs of Judah Hart, namely Samuel J. Hart and Mrs. Helen H. Hart, wife of Maurice J. Hart, were in solido indebted to them in certain amounts by reason of a certain personal guarantee made to them by said McDonald and Judah Hart of a dividend of ten per cent, upon certain corporation stock which they purchased; that the succession of Judah Hart had been opened under the number 65,733, Civil District Court, Division “B”, and the parties aforesaid had been put in possession of said estate as heirs and accepted the succession of Judah Ilart purely and simply and became responsible for its debts.

In view' of the premises they prayed for the citation of McDonald, of Samuel J. Hart, of Mrs. Helen H. Hart, wife of Maurice J. Hart, and Maurice J. Hart to authorize and assist his wife, and that after due proceedings they have judgment against said parties in solido, for the amount alleged to he due to them in their petitions.

On the 29th of March, 1898, Mrs. Harriet Horner, widow of Joseph P. Horner, Mrs. Eva L. Parker, wife of James P. Parker, and her husband, Mrs. Mary B. White, widow of T. T. White, Isaac L. Lyons, Mark B. Spellman and Omer Villere, (the said parties being-plaintiffs in the various suits referred to) filed a motion in the Succession of Judah Hart, in which (after suggesting to the court that R. T, McDonald, and the late Judah Hart, had, by act before Gur-ley, Notary, on May 2nd, 1894, bound themselves in solido, to personally guarantee to said parties a dividend of ten per cent, upon cer'.tain shares oí stock held by .them; that for reasons stated their obligation upon said guarantee had become fixed and due and owing, and that the Succession of Judah Ilart and his heirs Samuel J. Iiart and Airs. Maurice J, Hart, who had accepted his Succession and been put in possession thereof, by an ex-parte order, were liable to petitioners (movers) for said dividends, and after further suggesting that they were creditors of the Succession of Judah Hart, for seven years’ dividends upon the shares of stock held by them respectively, and that in order to protect themselves they desired that an inventory be made <of the Succession of said Judah Iiart, and that Samuel J. Iiart, and Mrs. Maurice J. Hart, who had been put into possession of his estate, be compelled to give security or in default thereof that an administrator be appointed to administer the Succession;) they prayed that the court order Samuel J, Hart and Mrs. Helen H. Iiart to show ■cause why they should not be compelled to make an inventory of the ¡Succession of Judah Hart, and furnish security, according to law, ■or in default thereof, why an administrator should not be appointed to administer said Succession.

Mrs. Maurice J. Iiart and Samuel J. Iiart, prior to answering the rule served oil them to show cause as prayed for, excepted that the ■court was without jurisdiction to hear and determine the issue raised, for the reason that this was not a proceeding in the Succession of Judah Hart, but was a substantive and original demand and should be in the form of a petition and citation and duly allotted to a Division of the Civil District Court; secondly, that the attempted proceeding- was unknown to the law and the order to show cause wa's improvidently granted; thirdly, that if this was a demand for a separation of patrimony, then and in that case the suit should be by a petition and citation in the manner and form prescribed by the Code of Practice.

In the event those exceptions should be overruled, they excepted that the demand of the plaintiffs in rule disclosed no cause or right of action, in this, that it was not suggested or shown that the heirs of Judah Hart, viz., Mrs. Maurice J. Hart and Samuel J. Hart, were indebted to any one, or that the rights of the creditors of Judah Hart or the Succession of Judah Hart had been imperilled by the possession of the heirs or would be imperilled or endangered in ally degree by the possession of the heirs of the entire estate; that plaintiffs did not suggest or show or allege that there was any need for the giving' of security by the heirs or the incurring the expense of administration of the Succession of Judah Hart.

Under benefit and reservation of the exceptions and contingently upon their being overruled, defendants in rule answered that neither Mrs. Maurice J. Hart nor Samuel J. Hart was indebted to any one, that, as they were advised and informed, all the rights of creditors of Judah Hart remained without peril by their .possession; that they had exercised and were exercising only their rights as heirs and successors of Judah Hart and that none of the property of Judah Hart or of his Succession could be or would be exposed to any personal debt of the heirs of Judah Hart to the unlawful prejudice of plaintiffs in the rule.

The court dismissed the rule.

There appears to have been no attempt to appeal from this ruling, but on May 20th, 1898, the same parties who were plaintiffs in the rule presented a petition to the Civil District Court in the matter of the Succession of Judah Hart, in which they alleged the giving' to them by McDonald and Judah Hart of their personal guarantee as-above stated for a dividend of ten per cent, upon their respective holdings of stock in the New Consumers’ Ice Company; the fact that that company was hopelessly insolvent and had gone into the hands of a receiver; that seven years’ ten per cení, dividends were due to them upon the guarantee; that the Succession of Judah Hart and his heirs and legatees, Mrs.. Maurice J. Hart and Samuel J. Hart, who had accepted his Succession and been put in possession thereof by an ex-parte order, were liable to them for one-half of said dividends pursuant to said guarantee; that the said heirs and legatees had caused themselves to be put in possession of his estate upon the false allegation that he had left no debt, and said false allegation was.evidently made for the purpose of seeking to deprive petitioners, who were creditors of the estate, of their legal rights against said estate; that petitioners, who were a majority of the creditors of the Succession of Judah Hart and his heirs and legatees aforesaid, desired that the judgment putting Samuel J. Hart and Mrs. Maurice J. Hart in possession of the estate be annulled and revoked, in order that the court assume control of the Succession, cause an inventory to be made and order the heirs and legatees to give security.

They prayed for citation upon the parties and that after due proceedings there be judgment cancelling and revoking the judgment theretofore rendered putting them in possession of the estate of Judah Hart, and ordering them to make an inventory of the Succession and furnish security according to law, or in default thereof that an administrator he appointed to said Succession. John R. Fell, Mrs. Mary A. Henderson and husband, R. A. Torres, John D. Minor and Mrs. Annie L. Minor, widow of Henry 0. Minor, natural tutrix of Margaret and Mary Minor, Andrew L. Green and Henry W. Connor intervened in this proceeding and making- substantially the same allegations as to themselves as those made by the plaintiffs joined them in their prayer for judgment.

Mrs. Maurice. J. Hart and Samuel J. Hart,' before answering the petition and the petitions of interventions excepted, as to all of them to the jurisdiction of the court for this, that the principal petition and the petition of intervention were independent actions brought to annul a judgment and had not under the rules of the Civil District Court been regularly allotted and that Division “B” was without the right or power to hear the same.

In the event this exception should be overruled, they excepted that the principal petition and petitions in interventions disclosed no cause or right of action. In the event this exception should be over-' ruled, they excepted that theretofore, on the 29 th of March, 1898 the same petitioners, Mrs. Harriet A. ITorner, Mrs. Eva L. Parker, Mrs. Mary B. White, Messrs. Isaac L. Lyons, Mark R. Spellman, and Omer Yillere, did file a rule in the same court, wherein they demanded that an inventory be made and the legatees in-possession of the estate should furnish security, which rule was heard and determined and by judgment of the court was discharged, and that the thing demanded and the judgment prayed for in the aforesaid rule -was the same thing demanded and the judgment prayed for in the pending proceeding, and that the parties were the same, and that the matter was determined by judgment adversely to the petitioners, which judgment in the rule they pleaded as res adjudicata, and therefore petitioners were estopped from demanding the same thing or praying the same judgment.

The defendants further exeep+ed that these proceedings in the Succession of Judah Hart were intended simply and solely as, and were in legal effect, a suit for separation of patrimony; that the heirs had accepted the succession of the deceased Judah Iiart simply and unconditionally and were sent into possession more than three months before the filing' of the petitions herein, and to the demand of the same they pleaded the prescription of three months agreeably to Art. 1456 of the Civil Code.

In the event these exceptions were overruled, they further excepted that the plaintiffs and intervenors had sued the heirs and universal legatees of Judah Hart as such and in that quality and for the same cause of action attempted to be set up in the suits which were pending before the Civil District Court and had chosen to pursue their right, if any they had, for the cause of action they were attempting to allege (which they denied was properly alleged), and that they were thereby debarred and estopped from claiming as against the Succession of Judah ITart or by any proceedings in the Succession of Judah Hart judgment against any person for any cause.

That the Succession of Judah Hart was closed, that there was no person who could stand in judgment for Judah Hart or for his succession or who was authorized to represent it or upon whom process could be served; that the whole proceeding was coram non judice.

Defendants under reservation of their exceptions answered.

After pleading the general issue they denied that they had caused themselves to be put into the possession of the Succession of Judah Hart upon any false allegation or any allegations made for the purpose of depriving the creditors of the estate of the said deceased of any right against said estate; and averred that they were sent into posseession of the Succession of their deceased father under his last-will and testament in due course and form of law and they made application for the possession in the exercise of the right granted them by law; that the estate of Judah Hart was closed and that the defendants were not in any manner indebted to the petitioners, and they made part of their answer their answers in the various suits brought against them and pending in the court; that the petitioners were estopped from setting up any claim or demand in the proceedings in the 'Succession of Judah Hart, his estate being closed and no longer in existence, for this, that they had ‘ instituted distinct and separate suits in their own names against respondents for debts alleged to be due by them and that they were without right to judicially assert as against the Succession of Judah Hart a claim for debt which they had theretofore asserted against respondents;, that they having voluntarily chosen to pursue respondents for the alleged debt they could not lawfully assert the same as against the Succession of Judab Hart which was closed, and by .their own conduct they were estopped from asserting that for the same cause of action for which they had pursued respondents, they had a right of judgment against the said Succession and therefore they had no right to the judgment prayed for.

The court sustained the plea of the prescription of three months and rejected the demand of the-plaintiffs and intervenors. Mrs. Harriet A. Horner, Eva L. Parker, Mary B. White, Mrs. Annie L. Minor, tutrix, and Messrs. I. L. Lyons, M. R. Spellman, Omer Villere, R. A. Torres, A. L. Green, II. W. Connor and E. Roder appealed.

OPINION.

This court held in the Succession of Bray, 50 Ann., 1209, that “the heir accepting the Succession unconditionally may be compelled to give security for the debts of the Succession, or submit to an administration of the property of -the deceased (Civil Code, 1004, 1005, et seq.); that the creditors’ right in this respect was not defeated by the ex-parte order recognizing the widow and heirs of the deceased and putting them in possession of the Succession property” and “that the creditor is not estopped from the relief he seeks-because subsequent to the order recognizing the heirs ho dealt with them as liable for the debts of the Succession.” .

The court said: “They incurred that liability by their simple acceptance. We can not perceive that because the creditor received a payment from the heirs on account of his debt he lost the right to demand an administration of the Succession property”.

Defendants contend that the principle announced in that case has no application to the present one, that in the present litigation the right of the creditor is barred by reason of three months having-elapsed after the heirs had accepted the succession before the demand for security was made.

They contend that not only was the Succession closed on account of the fact of this delay but also closed by reason of an order of court which, recognizing- the heirs, had placed them in possession after the Succession had been under administration in the hands of executors.

They urged in addition to this that the creditors had acquiesced in and recognized the fact that the Succession had been closed by bringing direct actions in the District Court against the heirs as such, dehors the Succession proceedings, in which' action they alleged the existence of the order for the taking of possession by the heirs and their possession under the order.

The prescription which defendants invoke is that found in Article 1456 of the Civil Code under the heading of “The Separation of Patrimony.” The Article declares that “the suit of Separation of Patrimony must be instituted within three months from the express or tacit acceptance of the heirs; after'the expiration of this term it is not admitted.”

•Defendants’ position is that the ending of the term for the separation of patrimony simultaneously ends the existence of a succession, as such and that a succession once closed can not be re-established.

Starting from these premises they maintain that the right of a creditor of a succession to exact security for his debt from an heir who has accepted the succession simply and to compel him to make an inventory of the succession under Art. 1011, O. 0., can not be exercised after the succession is closed.

The Article referred to (which has been modified to some extent by Act of 1828, p. 156, now Art. 1012, C. C.), reads: ’

“The heir who has accepted the succession simply may be even compelled to make an inventory of the succession and to give security in the same manner as in the case of the benefit of an inventory, if a .majority in amount of the creditors either present or represented in the parish where the succession is opened require it; in default of such security there shall be appointed an administrator to administer the succession according- to the provisions of the section relative to the Benefit of Inventory,”

This Article clearly shows that the unconditional acceptance of a succession by an heir followed by an actual possession of the succession property does not per se close the succession, and also indicates that when the demand for security is made the situation must be such as to permit of the appointment of an administrator to an existing- succession. The remedy given by the lawmaker to the creditor whose demand for security is not complied with, contemplates the existence, at that time, of a succession to which an administrator is to be appointed.

Was the succession of Judah Hart closed when the creditors’ demand in this case for security was made? Defendants contend that the heirs accepted the succession on the 15th of February, 1898, in their petition to the court for the probate of Judah Hart’s will; that tlie creditors’ petition in this case asking security was filed on the 20th May, 1898, and Judah Hart died on the 26th of January, 1898; that not only did a period of three months elapse between the said acceptance and the application for security, but this acceptance, when made, related back, under Articles 946 and 987 of the Code, to the date of Judah Hart’s death.

The acceptance of a succession by the heirs, to which Article 1011 of the Oode refers, is not an acceptance under benefit of inventory, but an unconditional acceptance, for a possession of succession property by heirs under an acceptance under benefit of inventory is not a possession as owners, but as quasi detainers of the property, and as quasi administrators.

So long as matters are in that situation the right of the creditors as against the heirs to demand security from them for their debts, remains suspended, and takes date only from the time of their actual unconditional acceptance, and not by relation back either to the date' of their acceptance under benefit of inventory or to the death of Judah Hart.

We do not find in the recitals of the petition of the children of Judah Hart to have his will probated any evidence, of an unconditional acceptance of the latter’s succession, even if they could be held to evidence an acceptance of any kind.

It is true the petitioners refer to themselves as children and heirs of Judah Hart, but they do not do so in a proceeding looking to their taking possession of the succession as heirs, but, on the contrary, to the placing of the succession under administration in the hands of executors appointed by a will of the deceased which might seriously interfere with their rights as legal heirs.'

It has been held that the placing of a succession under the administration of an administrator has the effect, per se, of operating a sep“ aration of patrimony.

Under present laws, a succession under an executor is closely assimilated to one under an administrator. (12th Ann., 611, Succession of Boyd; McNeely vs. McNeely, 50th Ann., 823; C. C., 1192-1670; Ingram vs. Moore, 2nd Ann., 871.)

The words used were simply descriptive (Mumford vs. Bowman, 26th Ann., 413), and, so far from indicating an unconditional acceptance, would go to show that their right of ultimate election was being held in reserve and in abeyance (O. C., 946), the succession in the 'meantime going under administration.

It is an utterly untenable position to urge that when an election and declaration of election was made it went back by relation either to the date of Judah Hart’s death, or to the date of any acceptance which they'might have made of the succession as heirs under benefit of inventory.

Relation is a fiction of the law which is never permitted to be used (any more than is estoppel) for the purposes of wrong, injustice or injury.

The doctrine is always kept within restricted limits.

We think it very clear that the lawmaker did not intend to subject this particular matter to the doctrine of relation. To do so would be to enable the heirs to” lull and entrap creditors into inaction in presenting claims and making legal demands. ■

We do not think that the fact that a succession has been placed under administration, and subsequently thereto the heirs have been recognized and placed in possession by an ex parte order of court, has the force per se of closing the succession.

We so held in the Succession of Bray. .If it were otherwise, heirs would have had furnished them a ready method of evading the law. Coming before any one-else to a knowledge of the death of their ancestor, they could rush into court, open and immediately close the succession by an order, without a single act of administration having been done while the succession was under administration, which seems to have been the case in this succession.

We think the lawmaker contemplates, so far as the relations between creditors of the succession and the heirs are concerned, that the former should be accorded a period of three months from the time of the unconditional acceptance of the heirs in which to institute suits on their claims, and that the heirs can not cut this right off by being placed in possession under an ex parte order of court.

Should the heirs before the end of the three months succeed in getting into this position, they can not gain any advantage by urging that at the time of their obtaining this order of possession, the claims of the creditors were not then in court on “pending suits.”

It is said that an heir who has accepted under benefit of inventory is at Ifberty, at any time, to accept unconditionally' — that in fact he may, under differing circumstances, be forced into tbat position in dependently of bis consent.

Tbat is true, but he can not do this to the injury of creditors who have relied upon his status as being that of an heir under benefit of inventory.

The change from beneficiary to unconditional heirship is generally by way of infliction of penalty and loss, instead of acquisition of rights.

(Blondeau “Separation des Patrimones”, pages 510, 511 and notes.)

We do not attach the same legal consequences that defendants do to the fact that the creditors brought suit against the heirs as such, after they had been so recognized by order of court and placed in possession by order of court.

The heirs in a succession have the right, if they please, to accept unconditionally the succession of their ancestor immediately upon his death and to hold possession of its property, but they do so subject to the right of creditors during three months after this acceptance and this possession to demand security or exact an administration.

The creditors could very consistently have sued the heirs as such and made their prayer for security or an administration part of their demand.

'We held in the succession of Bray that the creditors were not es-topped, by reason of their having dealt with heirs as such after they had been placed in possession of the property of the succession under an order of court and received partial payment of their claim from-them, from demanding security.

The bringing of suits against heirs is no more a recognition of their status as heirs than is the receipt of partial payments from them.

The right of the heirs to present possession under the order of the court is not contested; it is simply claimed that when the creditors’ demands were filed, the succession of Hart was not definitely closed and the right of possession of the heirs -was not absolute, but the latter right was subject to be defeated, the succession opened and its property placed in the hands of the administrator.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgments of the District Court herein appealed from, be and the same are hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiffs and inter-venors herein do have judgment in their favor against the defendants decreeing and ordering defendants Samuel J. ITart, and Helen EL. Hart, wife of Maurice J. Hart, within ten days from the sending down of this judgment to the District Court, to furnish security in favor of the said plaintiffs and intervenors for the payment of their-respective claims against the succession of Judah Iiart, said security to be for an amount one-fourth over and above the amount of their said respective claims, and on their default to do so, it is hereby ordered, adjudged and decreed that an administrator be appointed to administer the Succession of Judah Hart.

Watkins, J., dissenting, handed down a separate opinion in this case.


text:
    No. 13,085.
    In Re Ernest Wenck, Praying for Possession.
    Syllabus.

      1. If an assessor, upon an examination of title deeds, ascertains that certain property is that designated by a certain municipal numerical number in a certain square fixed also by number bounded by four named streets with measurements to the lot substantially correct, and makes his assessment thereof according to such numbers and description, he as fully and much more conveniently fixes the identity of the property, as he would by following the description thereof given in the act by which It was purchased.
    The latter description is frequently long and involved and fixes the identity of the property, by reference to numbers of plans and maps, difficult to be found and frequently lost.
    The assessor is not bound to describe the lot as No. 12 of a certain plan, made by Pil e, when in point of fact it is Municipal Lot No. 6, of Square No. 494, bounded by Elysian Fields, Marais, Marginy and Urquhart streets.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      Charles H. Osierberger for Mrs. C. E. Berges, Plaintiff in Injunction, Appellant.

      Bart é Kernan for Ernest J. Wenck, Defendant in Injunction, Appellee. ■
   The opinion of the court was delivered, by

Nicholls, C. J.

Plaintiff alleged that he had purchased at a tax sale made by the Tax Collector of the Third District of the Parish of Orleans for the State taxes of 1896, certain property which he described; that a deed was issued to him for said property on August 21st, 1897, by act before Zengel, notary, which was duly registered on August 23, 1897; that by the terms of said act he was entitled to be placed in physical possession of the property. He prayed for a writ of possession directed to the sheriff of Orleans, ordering him to place him in possession. An order issued as prayed for.

Execution of the writ was enjoined by the court upon the petition of Mrs. Marceline Du Corns, wife of Camille Berges, in which she averred that she was the owner of the following' described property, to-wit:

A certain lot of ground with improvements thereon situate in the Third Municipal District of this city in square No. 494, bounded by Elysian Fields, Urquhart, Marigny and Marais streets, designated as lot No. 12, on a plan drawn by J. Pille, on the-day of-■, 18 — , which lot of ground measures thirty-five feet ten inches front on Elysian Fields street, by a depth and front on Urquhart of one hundred and six feet ten inches between parallel lines forming the corner of Elysian Fields and Urquhart streets; that she acquired the same by purchase on the 1st day of May, 1891, by act passed before Paul Fourchy; that Ernest J. Wenck, a resident of this city, has obtained an order of possession herein directing the sheriff to put him in possession of your petitioner’s aforesaid property pretending that he acquired the same at a sale made by the 'State Tax Collector for the Third Municipal District of this city to enforce the payment of the State tax due thereon for the year 1896, by act passed before Fred Zengel, notary, on the 21st day of August, 1897, and that the time for the redemption thereof, has elapsed.

“Your petitioner avers that the aforesaid pretended sale of her herein above described property is absolutely null and void, for this, to-wit:

“That the assessment thereof is null and void;

“That the pretended assessment does not properly describe the property;

“That it does not identify the property as the property of your petitioner;

“That no notice was ever served upon your petitioner as required by law notifying your petitioner that her aforesaid property would he sold for the delinquent State taxes of 1896;

“That the aforesaid property was not advertised for sale as required by law, that what purports to have been an advertisement thereof is no advertisement at all, as it did not describe your petitioner’s property sufficiently to identify same, nor was it advertised for the period of time required by law;

“That your petitioner was ignorant of the pretended acquisition of her aforesaid property by the aforesaid Ernest <T, Wenck, until after one year had elapsed;

“That he never notified her that he had purchased her property;

“That unless restrained by law the civil sheriff of this parish will dispossess your petitioner of her aforesaid property and place the aforesaid Ernest J. Wenck in possession thereof to her great and irreparable injury;

“That under the laws of this State for such cases made and provided your petitioner is entitled to the right of redemption of her aforesaid property within one year from the time notice of the sale thereof has been given;

•“That a writ of injunction is necessary in the promises to protect her aforesaid rights.”

In view of the premises she prayed that an injunction, issue directed to the sheriff restraining him from disturbing petitioner in the peaceful enjoyment and possession of her property; that Ernest J. Wenck be cited and that after due proceedings there be judgment in her favor annulling his aforesaid tax title and declaring same to be inoperative, null, void and of no effect, and that .the injunction be made perpetual, and for general and equitable relief.

The defendant in injunction answered. After pleading the. general issue he averred that he purchased the property in question at a tax sale made by the State tax collector for the Third District of the city of New Orleans as evidenced by a deed issued to him by act before Fred. Zengel, notary public, on the 21st day of August, 1897.

That said tax sale was duly and regularly made after all the requirements of the law had been duly complied with; and that respondent’s title to said property was good and valid.

That the allegations upon which this injunction was obtained were unfounded in law and fact and were untrue.

That the injunction issued should be dissolved with one hundred and twenty-five dollars damages as attorney’s fees.

OPINION.

Defendant in injunction obtained a writ of possession based upon the allegation that he was the owner of a certain lot of ground and improvements thereon, situated in the Third District of the city of New Orleans, designated by the number 6 of square No. 494, bounded by Marigny, Elysian Fields, Marais and Urquhart streets, measuring thirty-five feet front on Elysian Fields by 106 feet in depth, as having purchased the same at tax sale on the 23rd of August, 1897, made by the State tax collector for the Third District of the parish of Orleans.

The writ of possession is not in the record but it is presumed it followed the application and order, for the writ.

In the tax deed the property is described as recited in the petition for possession.

The execution of the writ was enjoined by Mrs. Marceline Du Corns, wife of Camille E. Berges.

In her petition she alleged herself to be 1he owner of “a certain lot with improvements thereon situate in the Third Municipal District of New Orleans, in square No. 494, bounded by Elysian Fields, Urquhart, Marigny and Marais streets, designated as lot No. 12, on a plan drawn by J. Pille, on the — day of-, 18 — , which lot measures thirty-five feet ten inches front on Elysian Fields street by a depth and front on Urquhart of one hundred and six feet ten inches between parallel lines, forming the corner of Elysian Fields and Urquhart streets.”

That Ernest J. Wenck had obtained "an order of possession herein directing the sheriff to put him in possession of petitioner’s aforesaid property”, pretending that he had acquired the same at a .tax sale as per act before Zengel, notary.

She then proceeds to attack the sale as being absolutely null for special reasons assigned.

The assessment of the property is attacked on the claim that it does not properly describe the property — that it does not identify it as her property.

It will be noticed that it is not contended that the property assessed was not in fact her property; on the contrary, she distinctly avers that the property covered by the order of possession is her property.

It is not charged that the sheriff had departed, or was about to depart, from the terms of the writ,' but that by obeying the writ he would seize her property, of the ownership of which she had never been legally divested.

Had she made the allegation that the sheriff was attempting, by the writ, to place Wench in possession of property other than lot Ho. 6, in Square No. 494, bounded as stated, an issue of fact would have been presented, and defendant in injunction would have doubtless offered evidence to establish the indentity of Lot No. 6, of Square No. 494 (evidently the municipal number of the lot), with Lot No. 12, of the Pille plan.

We think the pleadings of the plaintiff admit that, as a fact, the property referred to in the writ is that of the plaintiff described in the Pille plan (Genella vs. Vincent, 50 Ann., 964).

Leaving the question of fact and coming to a question of mere description in the assessment and advertisement of the property, we are of the opinion it was properly assessed and advertised.

In making an assessment, the assessor is not required to follow the description of property as made in the act of sale by which it was acquired. That description is frequently long and involved, and fixes the property by reference to other acts and deeds — in this very case reference is made to a plan drawn by J, Pille, on the — day of -, 18 — .

If the assessor, upon examination of the deed, ascertains that as a fact the property purchased is covered by a lot bearing a certain municipal number in a certain square fixed by number, bounded by four mentioned streets, with measurements given to the lot, and makes his assessment by this description, he as fully (and much more conveniently) fixes the identity of the property as he would by attempting to -follow the description given in the act of purchase.

There is unquestionably such a property as Lot No. 6, of Square No. 494, in the square bounded by Elysian Fields, Urquhart, Marigny and Marais streets. If that property does not belong to the plaintiff, but to some one else, the actual owner of it is much more interested in attacking a tax sale thereof than is Mrs. Rerges.

Of course the latter is interested in preventing herself from being ejected from property belonging to her under a tax sale of some other property, but the allegations of a petition for injunction based on such a state of facts would be different from those which would be made in case of an erroneous description of property really belonging to her.

If the assessment so far as description was concerned was correct, an advertisement under the same description would be also correct.

We are satisfied, under the evidence, that the contention made in the pleading's that no notice was ever served upon the plaintiff, is not well founded in fact.

We are not informed by the pleadings in what respect the advertisement was insufficient as not having been made for the period of time required by lav?. This court can not be expected to look up defects for parties which they do not deem of sufficient importance to specify.

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

Rehearing refused.


author: Nicholls, 0. J. Breaux, J.

text:
    No. 13,066.
    George W. West vs. Domingo Negrotto, Jr. Administrator.
    Syllabus.
    The adjudication of property to the State at a sale made in enforcement of State taxes, does not cut off the city taxes upon the property, and when such property is afterward sold by the State, under Act No. 82, of 1884, the purchaser not only takes the property,cum micro, but is bound personally, under his bid, to pay the city taxes.
    On liis failure so to do, rite city has the right to enforce the same and bid in tbe property.
    If, at the expiration of the term for redemption, the city authorities transfer the property to a third person who brings a petitory action to recover the same, the purchaser from the State can not, while not contesting the city’s title or proceedings, successfully defend the suit by collaterally attacking tbe authority of the city officials to transfer the property.
    Defendant, in a petitory action, has the right to set up, as against plaintiff’s demand, the existence of an outstanding title in a third person, but the outstanding title must be a valid, legal, subsisting title, better than that of the plaintiff.
    where an outstanding title in a third person is set ftp, and plaintiff produces a title from that person himself, defendant can not attack it for relative nullities, but it must stand until set aside by a proper proceeding, between the parties in interest themselves.

      02» APPMOATIOX JW ItBHDABIXG.
    The sale of property by the State for the payment of her taxes vests, in the purchaser a title, legal on the face of the papers, unless it thereon appears, otherwise.
    When the State sells properly for taxes and the papers show a title prima faeil-legal, the purchaser, although after subsequent judicial Investigation the-title is found null, is not a possessor in bad faith if he is, not guilty of fraud or deception of any kind. ■
    The purchaser is entitled to his improvements placed on the property prior to-the suit, also to taxes paid, and to possession of the property until the value of the same be paid to him.
    The value of the improvements and the amount of defendant’s claim not having been shown by sufficient evidence, the case is remanded to try and decide-defendant’s reconventional demand.
    APPEAL from the Civil District Court, Parish of Orleans-Monroe, J.

      Bichardson S Soule and Reman & Wall for Plaintiff, Appellant.

      J. Zach Spearing for Defendant, Appellee.
   The opinion of the court was delivered by Nicholls, 0. J.

On application for rehearing-, by Breaux, J.

Nicholls, 0. J.

One branch of this case was before this court in 1896, and will be found reported in the 48th Ann., p. 922, (West vs. Negrotto, Sr.), from which can be ascertained the ^leadings filed, the facts found, and the issues raised and determined.

The present action is a sequence of the former one. It is a petitory action brought against the administrator of Domingo Negrotto, the defendant in the former suit, for the recovery of the same property involved in that litigation.

The plaintiff in his petition, after alleging himself to be the owner of the property, averred that he acquired the same from Wm. A. Holt, by public act of sale, June 26th, 1850; that said property was thereafter acquired by the city of New Orleans on the 19th day of June, 1893, for taxes due it, as appears by act of sale passed before J. D. Taylor, notary public of this city, of date July 12th, 1893; that subsequently he redeemed and re-acquired said property' from the city of New Orleans on the 28th day of October, 1895, for a valid considera-iion, as would appear by a redemption certificate and sale issued to him; that subsequently the city of New Orleans, through its Oity ■Council, ratified and approved said redemption and sale, and also transferred to plaintiff, his heirs and assigns, all of its rights, title and interest; that the Succession of Domingo Negrotto, Sr., through its administrator, Domingo Negrotto, is wrongfully in possession of said property; that petitioner paid to the said city of New Orleans for its said title to the said property the city taxes, penalties, interest, costs and damages, for the years 1880 to 1896, amounting to $367, which amount he is entitled to be reimbursed should his said title to said property be annulled; that the said property is worth $4000.

He prayed that the Succession of Domingo Negrotto, Sr., through its administrator, Domingo Negrotto, be cited, and that, thereafter, petitioner have judgment in his favor, over and against defendant, decreeing him to be the owner of said property, and as such entitled to the possession thereof.

He further prayed (in the event that his said title to said property should be annulled, and in that event only) that he should have judg* ment over and against defendant for the sum of $367, expended by petitioner, on account of said property, as aforesaid, secured by mort* gage, lien, privilege and right of pledge, on said property.

He further prayed for all costs and general and equitable relief,

The defendant excepted that plaintiff’s petition disclosed no legal or valid cause of action; second, that the plaintiff is estopped from setting up any right, title or interest under or by virtue of the redemption of the property described in his petition on October 28, 1895, for the reason that in a certain suit entitled West vs. D. Negrotto, Sr., No. 41,592, of the docket of the court, the said West, plaintiff in said suit, as well as in the pending suit, declared judicially that he did not claim any right in or title to said property under or by virtue of the said redemption certificate, and that the said West can not now be permitted to contradict his said judicial statement made in the said suit.

The exceptions were referred to the merits.

The defendant-answered.

After pleading the general issue he specially denied that the plaintiff acquired any right, title or interest in or to the said property under or by virtue of the alleged redemption by him from the sale of the said property to the city of New Orleans, or by the subsequent alleged and pretended ratification and approval thereof by the said city, but, on. the contrary, respondent alleged that if, as alleged by the plaintiff, he redeemed the said property, then and in that event the said redemption enured to the benefit and advantage of respondent and of his ancestor as the owner of the said property, and respondent specially denied that at the time the said plaintiff claimed to have redeemed the said property he had any right, title or interest in or to the same, or any right to redeem the said property for his benefit; and respondent also specially denied that the city of New Orleans had any right to permit plaintiff to redeem said property, or to transfer the said property or any claim thereto, or interest therein, to plaintiff or any other person.

Further answering, respondent admitted and alleged that he was in possession as owner of the property described in plaintiff’s petition, respondent’s ancestor, D. Negrotto, Sr., having acquired the said property at a sale thereof by the Tax Collector of the Upper District of the city of New Orleans under and by virtue of the provisions of Act 82 of 1884, to enforce the payment of the State’s taxes for the years 1876, 1877, 1878, evidenced by ,an act before Jos. H. Spearing, notary public, on the 14th day of August, 1888, duly recorded in the office of the recorder of conveyances of this parish, by which said sale the title of plaintiff to said property was completely and forever divested, as appears by a judgment of the Supreme Court of this State, rendered in the suit entitled G. W. West vs. D. Negrotto, Sr., No. 11,492, of the docket of the said Supreme Court, which said judgment and decree respondent pleaded as res judicala.

Further answering, respondent alleged that he had been in xDosses-sioir of the said property ever since the said sale to him; that at the time he acquired the said property the same had been and was abandoned by the former owner thereof; and that the said former owner had never taken or been in possession of the said property.

Further answering, respondent alleged that the said property was also regularly and legally adjudicated and sold to the State of Louisiana for the unpaid State taxes due thereon by the former owner thereof for the years subsequent to 1879, to-wit: For the years 1880, 1881, 1882, 1883; that by the aforementioned judgment of the Supreme Court in said suit No. 11,942, of the docket thereof, it was decreed that the said sales to the State likewise divested the title of the plaintiff to the said property, and the said judgment and decree is likewise pleaded as res judicata; that subsequent to the said sales and .adjudications to the State respondent’s ancestor, the said D. Negrotto, Sr., redeemed the said property from the State under the said sales, and thereby acquired the rights, liens and mortgages of the State in and to said property, as the same will more fully appear by reference to the redemption certificate issued to respondent by the Auditor of the State, which is filed in proceedings No. 11,492, of the docket of this court, and made part of the answer.

Further answering, respondent alleged that he had paid all of the taxes legally due by or on the said property.

■Further answering, respondent alleged that subsequent to the purchase of the said property by the late D. Negrotto, Sr., the said Negrotto built seven residences on the said property at a cost of $142 for each house, making a total of nine hundred and ninety-four dollars for the said seven houses; that the building of each house had been of great advantage and benefit to the said property, and had greatly increased and enhanced its value; that in addition to the building of the said houses, respondent expended the sum of sixty-five dollars in cleaning and removing the weeds, trees and growth from the said property, which were on the same, and in digging gutters and ditches on the said property in order to drain the same and to make the said property habitable and useful; that in addition to the said seven houses herein referred to the said D. Negrotto, Sr., also erected another dwelling house on the said property, together with fences, bridges, cisterns and stable and shed, all at the cost of one hundred and eighty-six dollars; that the said D. Negrotto, Sr., paid the State taxes and costs on the said property from the years 1880 to 1891, amounting to the sum of fifty-two 30-100 dollars; that in all of the payments herein above referred to and in the ditching and draining of the said property and in the building of the said houses, the said I). Negrotto, Sr., acted in good faith, and the same was to the benefit and advantage of the said property and greatly increased its value; and in the event of judgment being rendered in favor of plaintiff, respondent was entitled to have twelve hundred and ninety-seven 30-100 dollars refunded and paid to him with interest, charges and penalties as provided by law, before respondent could be compelled to surrender said property .to plaintiff, if such judgment be rendered and before the same could be made executory.

The premises considered, he prayed that there be judgment in his favor and against the plaintiff, dismissing the suit of plaintiff at his cost, but in the event of judgment being rendered in favor of plaintiff and in the alternative respondent prayed that there be judg~. men! in his favor and against the plaintiff for the sum of one thousand two hundred and ninety-seven and 80-100 dollars, with interest, costs, charges and penalties as provided by law, and that respondent be relieved from surrendering said property to plaintiff, if judgment be rendered in his favor, until the full and final payment of the said sum, and that the said judgment if rendered be made not executory until the full and final payment to the respondent of whatever may be adjudged to be due to him in these proceedings, and respondent further prayed for all equitable and general relief.

The court rendered judgment in favor of the defendant, rejecting, plaintiff’s demand, and the latter appealed.

Opinion.

The property involved in -this litigation belonged originally to George W. West, and while standing assessed in his name was adjudicated in January, 1885, to the State; first, under Act No. 77 of 1880, for the unpaid taxes of 1881, and later under Act 96 of 1882, for the unpaid taxes of 1882 and 1883. While so situated, it was offered for sale under Act No. 82 of 1884, and adjudicated to Domingo Negrotto on the 14th .of August, 1888, for the unpaid taxes for the years 1876, 1877 and 1878, assessed in the name of West. The city taxes for all the years from 1870 to 1879 were also due. At the date of the adjudication additional State and city taxes from 1880 up to and inclusive of 1888 were also due. The property was adjudicated to Negrotto under a bid of one dollar, which he paid. Notwithstanding he failed to pay the city and State taxes then upon the property, the tax collector gave him deeds for the property. This he should not have done, as, under the law under which the purchase -was made, it was Negrotto’s duty to have paid all the State and city taxes then due.

In West vs. Negrotto, 48 Ann., 923, we held that he was really without title until he had done so, and that had the original owner, West, while matters were in that situation, made payment of the taxes to the State, and been permitted by the State officers to redeem the property and retake title, the purchaser, Negrotto, would not have been in a position to c£ill such action in question, lie being in default and having' no rights himself; that West, the original owner, would have occupied, under such circumstances, the position of Remick in Remick vs. Lang; that as a matter of fact, West had not gone forward and paid the State taxes and retaken title, but Negrotto, who from 1888 to 1893 had not paid the taxes, went forward, paid those taxes and obtained from the State officers a certificate of redemption on the 29th of liarch, 1893.

When the city of New Orleans found that the title of the property had passed from the State to Negrotto, and that it was, therefore, free to pursue remedies in enforcement of its past due taxes, it found among those taxes those which had stood on its books under the assessment against West which it had been made the duty of Negrotto, under his adjudication, to have paid. It, therefore, proceeded to offer the property for sale, and at the sale bid it in itself on July 12, 1893, but this was after Negrotto had (though tardily) paid the delayed State taxes, and had received the certificate of redemption referred to.

On November 5, 1895, West brought a petitory action against Negrotto for the recovery of the property upon the evident theory and belief that he occupied the same position which Remick did in Remick vs. Lang; that Negrotto not having paid the State taxes at the moment of the adjudication, had acquired no title; that twelve months having elapsed after the sale without such payment, the State officers were without authority to . convey title, and their whole authority was to receive payment of the taxes, and that the only effect of the payment of the taxes by Negrotto was to entitle him to recover the amount so paid as money paid for his, West’s, use and benefit.

Wo adjudged that this claim of West was not well founded; that ho had not attacked the adjudication of the property to the State; that though Negrotto may not have taken title by reason of his failure to pay the State taxes at once, the effect of that neglect was not to cause West to regain title, but left it in the State; and that West, having no interest in the property, was not in a position to question the authority of the State officers to convey the title to Negrotto.

It appears, however, that after the city of New Orleans had proceeded against the property for its own delayed taxes, and had bid it in itself, West went forward and paid the taxes to the city, which, thereupon, gave him a certificate of redemption, and o\c the trial of the cause he sought to introduce this certificate and the tax deed to the city in evidence. The testimony was objected to and excluded on the ground that it was not admissible under the pleadings, as West had not predicated any rights upon them, and this ruling was sustained on the appeal of the cause.

This court decreed (48 Ann., 926) that the adjudication made of the property in litigation to the State in enforcement of the taxes thereon in the name of George W. West, divested the latter of the ownership thereof, and vested' the same in the State of Louisiana, and said fact stood as a bar to plaintiff's action on his original title; but his rights, if any he had, under the adjudication of said property to the city of New Orleans, were expressly reserved to him — they not being considered or included in the decree. Plaintiff’s demand was rejected with the reservation stated.

A rehearing in the case was refused May 14, 3896.

Plaintiff filed the present action on the 4th of October, 1897.

The plea of res judicata set up by the defendant is not well grounded. Plaintiff does not seek to recover in this case upon his original title, but under the title acquired by the city in enforcement of its taxes, and besides this the judgment expressly reserved from being covered by it any rights which plaintiff might have derived from the city.

The original title of West to the property is not in dispute in this litigation. The tax sales, made both by the State and the city, were based upon the fact of such ownership.

The evidence establishes the fact that after the State officers had permitted Domingo Negrotto to pay the State taxes which should have been paid by him prior to his receiving a deed of the property adjudicated to him, and had issued to him what is referred to as a redemption in his favor of the property, the city of New Orleans proceeded to enforce payment of its own taxes by sale of that property, and at the sale bid it in itself.

The validity of that sale is not attacked.

Defendant rests his defense upon the proposition that the present being a petitory action, the plaintiff must recover upon the strength of his own title, not on the weakness of his adversary, and that the city officials were without power or authority to permit West to redeem the property as they did, as he had no interest in it at that time, and the time for redemption besides had passed; that the only effect of the payment of the city taxes, by West, was to extinguish the same and relieve the property and entitle West to recover from him, ■defendant, the amount so paid, as money paid out for his use and benefit.

It will be seen that the parties occupy, to a very considerable extent, reverse positions to those which they occupied in the former suit, defendant arguing in the present action on the same line as West did before.

It is proper that we see what the situations of all the parties were at the time of the adjudication by the State to Domingo Negrotto; West had admittedly been divested of the ownership of the same by the adjudications to the State.

At the time of the adjudication to the State there were taxes due upon it to the city of New Orleans. The effect of the adjudications to the State was not to prejudice the rights of the city — they remained unimpaired. This is manifest, for any sale of the property thereafter, as owner, was directed by law to be made on the express terms and conditions that the purchaser should pay not only all State taxes on the property, but also all city taxes.

The failure of Negrotto, when the State adjudicated the property to him, to pay the State taxes, placed him in the position of not being able to claim title ipso facto by the adjudication and under the sale; payment of those taxes was a condition precedent to a transfer of ownership. Negrotto ultimately paid those taxes and received what, as we have said, was denominated “a redemption certificate,” but as Negrotto had at that time no title to redeem, it is obvious that this was a misnomer, and that what was really done by the Auditor was to authorize Negrotto, though in default, to pay at the time he.did and nunc pro tunc the taxes which he should have paid at the time of the adjudication, and to vest title in him then for the first time, but 'by relation back to the day of sale. We .held in the former suit that West was not in a position to question the right of the Auditor to receive this delayed payment and to give retroactive effect to it.

Whether the State could now, after receiving payment of its taxes through its officers, repudiate their action and claim ownership of the property, we need not seek to discuss, for it has never done so, and until it should have done so successfully, we have to consider that the title passed to Negrotto.

But, tlie vesting of the title in Negrotto left the property subjected to the city taxes, not simply by force of the original assessment and levies, but by right to their enforcement supplemented by the direct personal obligation which Negrotto assumed under the terms and conditions of his purchase.

It was his duty to have paid those taxes at once to the city, and 1 hough the effect of his not doing so may not have been so radical and sweeping, quoad title, as was his failur.e to pay the State taxes (for the State tax collector was not authorized to receive payment himself of any taxes other than those due the State), there is no question of his being liable to the city as a purchaser cum onere from the State, but also liable as a purchaser as part of his purchase price, the State having, under the law acting for the interest and protection of the city’s rights, made that payment one of the terms and conditions of the sale.

The title having passed to Negrotto, the city was legally authorized to enforce its taxes upon the property in his possession.

It did so under proceedings, the validity of which are not assailed and which are, presumptively, correct.

It acquired the title, and, as against Negrotto, either the city is the owner of the same or West is the owner. Defendant insists that the city officers were without authority to permit West to redeem the property, or to receive a transfer of the same on a payment by him of the taxes made at the time and under the circumstances he did; that West had no title to redeem; that the effect of the payment of the taxes to the city was to extinguish the taxes, relieve the property from the same, and to leave West with only a claim against Negrotto for the amount of the taxes paid as so much money paid for Negrotto’s use and benefit. This is precisely the same argument which West unsuccessfully urged against Negrotto in the former suit.

The State in receiving the payment of the State taxes from Negrotto, and Negrotto in making payment of those taxes, were not aeting in the interest of West, but were each acting in Ms and its own interest, and the city in receiving the payment of the city taxes from West, and West in paying those taxes, were not acting in the interest of Negrotto, but were each acting in his and its own interest. The object of the transaction in the one ease was to transfer owner ship from the State to Negrotto; in the other to transfer ownership from the city to West.

Assuming, as we hare to do, that the city acquired the ownership of this property by the adjudication to it, what is the legal situation 2

Defendant urges that this is a petitory action, and plaintiff must recover on the strength of his title, not on the wealmess of the party in possession; that plaintiff's title is not good.

Now, as the plaintiff claims under the city, and the city has been shown to hare acquired the property at a tax.sale, whose legality is not contested, the issue is narrowed to the question whether the condition of things is such as to justify the defendant in contesting- the title of the property as between the city and West. In other words, is the situation such that the defendant can legally insist that there is a valid, legal, outstanding title in the city.

There is no doubt as to the correctness of the proposition that, in a petitory action, the plaintiff must succeed on the strength of. his own title, nor of the proposition that the defendant in a petitory action can set up as against plaintiff’s demand the existence of an outstanding title to the property in a third person. In the latter case, however,- the outstanding title must be a valid, legal, subsisting title, better than that of the plaintiff (Mays vs. Witkowski, 46 Ann., 1475), and, in the former case, if plaintiff’s title be weak, it must, in order to entitle defendant to question it, be a weakness resulting from some radical and not from some mere relative nullity (Hennen’s Digest, p. 1114, No. 2; Scott vs. Briscoe, 37 Ann., 178; Bernard vs. Noel, 45 Ann., 1137).

Now the weakness which the defendant'sets up is the existence of an outstanding- title to the property in the city, but the City, whose title is thus thrown forward, has itself undertaken to transfer the same to the plaintiff. Defendant says' that is true, but the city officials were without authority to make the transfer; in other words the defendant, without any claim himself to the city’s transferred title, is seeking to champion collaterally in this proceeding its rights to the ownership of the property. Where an outstanding title in some third person is set up by the defendant in a petitory action, and plaintiff produces a title from that person himself, this title must stand until it be set aside by the party entitled to have the sale set aside (Scott vs. Briscoe, 37 Ann., 178; Bernard vs. Noel, 45 Ann., 1136; Font vs. McConnell, 46th Ann., 223).

It may be that the city would be able to contest the right and authority of the City Council to transfer this property, but it has manifested no intention to do so, and certainly would not before tendering back to West the money received from him.

The District Court was of the opinion that the title to the property was still in the State, but we do not think so. It is either in the city of New Orleans, or in West, and the legal title stands to-day under the action of the City Council in the name of one or other of those two.

We are not authorized to declare the transfer inoperative until it shall have been set aside by the parties in interest.

We are, therefore, of the opinion that the property involved in this litigation belongs to the plaintiff, George W. West. He does not, in his petition, charge the defendant with bad faith, nor ask for fruits or revenues.

The defendant has prayed, in the event judgment is rendered against him upon the issue of ownership, that we render judgment against plaintiff in his favor for twelve hundred and ninety-seven dollars and thirty cents for monies expended by Domingo Negrotto, in cleaning and removing weeds, trees and growth from the property, and digging, draining and gutters thereon, to make the,same habitable and useful, also for the erecting of a number of houses, fences, bridges, cisterns, stables and sheds. The plaintiff, though he did not in his petition charge defendant with bad faith, did so in repelling defendant’s reconventional demand. The members of this court (other than the writer of this opinion, who in respect thereto differs from them) are of the opinion that the defendant is entitled to retain possession of the property until ho shall have been paid by the plaintiff the sum of twelve hundred and ninety-seven dollars and thirty cents, the amount which the court finds has been paid out for the use and benefit of the plaintiff, as set out in his answer.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, George W. West, have judgment in his favor, against the defendant, recognizing and decreeing him to be the owner of the property claimed by him and described herein.

It is further ordered, adjudged and decreed that he be placed in possession thereof when he shall have paid to the Succession of Domingo Negrotto the sum of twelve hundred and ninety-seven dollars and thirty cents, and that until payment he made, defendant retain possession of the property.

l:OKROH, J., takes no part here, having decided this case in the lower court.

ON Application for ReíteabiNG.

Breaux, J.

Plaintiff and appellee complains of our decree decreeing and condemning him to pay the sum of twelve hundred and ninety-seven 80-100 dollars to the defendant before taking possession of the property decreed to belong to him. He avers that defendant, Negrotto, was found to be without title, and a possessor in bad faith, and, as such, should be entitled only to remove his improvements placed on the property, reserving to plaintiff the right to pay for them if he so elects.

He also asks that rights should be reserved to him to hereafter claim the rents and revenues from the property, and to offset any amount which may be due to defendant for improvements, with rents and revenues.

It is true, as contended by plaintiff and appellee, that the court found that the defendant was without title to the property, but it does not necessarily follow from this that ho is a possessor in bad faith, and that he is, therefore, not entitled to require payment for his expenditures before the rightful owner can be placed in possession.

Defendant was the adjudicatee of the property at a tax sale, and he held a deed to the property from the tax collector. The property passed from the State, vendor, to him. In prior decisions, this court declared that the adjudication made of the property to the State in enforcement of the taxes, divested plaintiff of the ownership, and vested it in the State of Louisiana. True, the rights of the city for the taxes defendant refused to pay her remained impaired. She was not prejudiced by the sale, and, in consequence, had the right to transfer the propeidy as she did, but it remains that defendant, Negrotto, paid the taxes-to the State, and was recognized as an owner by the State through her officers. We have not found, heretofore, nor can we here conclude that he was in bad faith and not entitled to his improvements. The organic and other laws invest tax deeds and other proceedings with a certain degree of presumption in their support. A tax title is prima facie'yalid. This defendant had no title, it is true, but he held from officers of the State sufficient indicia to protect him from demands on the presumption that he is a trespasser and tori feasor in possession. The improvements were made before this suit was brought, and at a time when he considered he had a right to the property. In this view we can only reiterate that which we held in our opinion.

The defendant was the only witness beard in support of his claim in reconvention amounting to more than five hundred dollars. The total being more than five hundred dollars, to form a basis of a judgment, it must be shown to be due by one witness and corroborating circumstances. We have not found the least corroborating circumstance. Throughout, this witness testified and rested his claim entirely on his own testimony. While we think that he is entitled to the value of his improvements, as heretofore, decided by us, we are of the opinion that the value should be made to appear by sufficient testimony.

We think that the defendant is entitled to the taxes paid by him, which was due to the State on the property.

It is therefore ordered, adjudged 'and decreed that our judgment remain unchanged in any respect save as relates to the defendant’s reconventional demand for improvements and taxes, and, as to this issue only, is the case remanded, that testimony may be had as to their value and as to the'amount of the taxes paid by defendant and a judgment entered therefor by the District Court. As heretofore, “it is further ordered, adjudged and decreed that he be placed in possession thereof when he shall have paid to the Succession of Domingo Negrotto the sum of twelve hundred and ninety-seven dollars and thirty cents, and that, until payment be made, defendant retain possession of the property,” except that now, under the amendment here, the decree reads, “when he 'shall have paid to the Succession of Domingo Negrotto the value of his improvements and taxes.” With this change, our decree is to remain in full force and effect.

Rehearing refused, save in respect to amendment made, which is made in view of the fact that the issues are plain and more argument is unnecessary.

Nicholls, C. J., dissenting, handed down a separate opinion.


author: Waticixs, J.

text:
    No. 13,111.
    John D. Minor et als. vs. Samuel J. Hart and Mrs. Maurice J. Hart.
    Syllabus.
    1. An averment in a petition of the solidarity of an obligation which is joint in fact, and a prayer for a judgment in solido against several defendants, does not constitute an estoppel against the plaintiff’s recovery against some of the defendants because she made a compromise with another defendant after'issue joined.

      2. The obligation of two or more persons who intervene in an act of sale to a corporation, and give their personal guarantee that for a period of years its shares of preferred stock shall annually earn and pay a dividend of ten per cent., is joint as to the obligors and not in solido.

    3. Such a covenant evidences an independent stipulation potw aulrui and not a contract of suretyship; and the obligation of the intervenor is different and distinct from that of the corporation. Consequently, the insolvency of the corporation judicially declared, did not have the effect of precipitating the maturity of the instruments of the intervenors’ indebtedness not yet'run to maturity on the face of the contract, notwithstanding it had that effect as to its own debts not yet due. The principles announced in Hawkes vs. . Bright, 51st Ann., 79, are affirmed.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      Omer Villero (Bernard McClosTcey, Guy M. Ilornor, and Binlcel-spiel & Hart, of Counsel) for Plaintiffs, Appellants.

      Clegg & Quintero for Defendants, Appellees.
   The opinion of the court was delivered by

Waticixs, J.

The plaintiffs allege that they are the owners of one hundred and nineteen and .0625 shares of the preferred capital stock of the New Consumers’ Ice Company, Limited, of one hundred dollars each, and they seek to recover of the defendants, Samuel J. Hart and Mrs. Helen H. Hart, as the heirs of Judah Hart, the sum of $4,167 and 18-100, as oiie-half of a dividend of ten per cent, per annum, for a period of ten years on the par value of said stock payable semiannually on the first of May and first of November of each year.

This suit is based on an obligation of Judah Hart and R. T. McDonald contained in an act of sale, which is fully described in the opinion of this court in the case of Airs. Harriet A. Hornor vs. R. T. McDonald et als., No. 13,119, this day decided.

For the reasons assigned by the District Judge, the demand of the plaintiffs were rejected, and judgment rendered in favor of defendants. The issues raised in this case are identical with those in the case of Mrs. Harriet A. Hornor vs. R. T. McDonald et als., No. 13,119, this day decided; and for the reasons therein assigned, we are of opinion that judgment should have been rendered in favor of the plaintiffs for one-half of each of the semi-annual dividends which matured and became due on the first of May and November, 1898, and the first of May, 1899 — this suit having been filed on the 31st of May, 1898 — and that a judgment of non-suit should have been entered with respect to the remaining- dividends claimed for the year 1898 and subsequent years.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the plaintiffs, John D. Minor et als., do have and recover from the defendants, Samuel J. Ilart and Mrs. Helen II. Hart, one-half of the amount of the semi-annual dividends claimed for the year 1897, and the first instalment of the year 1898, of two hundred and fifty-seven dollars and fifty cents ($257.50) each, with five per cent, per annum interest from judicial demand; and that the demands in respect to other dividends enumerated are dismissed as of non-suit. And that the costs of appeal be taxed against the defendants and appellees.

Rehearing refused.