Baker v. Towles's Administratrix

| La. | Sep 15, 1837

Bullard, J.,

delivered the opinion of the court.

This is an action of partition. • The object to be partaken is a tract of land, of sixty arpents front, originally granted to the widow D’Arby.

The defendant contests the title of the plaintiff to any part of the tract under his conveyances from some of the heirs of the grantee, and from the heirs of Delaboussaye, who pretend to have acquired a right to one-fourth, under the confirmation of one half the tract, by act of congress. She asserts title in tbe estate of Towles to the whole tract, partly by a sale from one of the heirs to Brashear, from the latter to Crow, and from Crow to John Towles, whose estate she administers, which is not contested ; but principally in virtue of a sale for taxes, in 1817, of fifty arpents front, by the sheriff of the parish of St. Mary, at which Towles became the purchaser. She further pleads the prescription of ten years.

The sheriff^ deed as collector of taxes, -without evidence of any assessment of the taxes, is defective in form, as it does not show the warrant of the collector to sell, and is not translative of property, which will form the basis of the ten years9 precription.

The defendant gave, in evidence, a deed signed by the sheriff of the parish of St. Mary, and ex-officio collector of the state taxes, from which it appears, that the fifty arpents of land in controversy, were seized for the tax of 1816, due by the heirs of D’Arby, who were non-residents, and sold according to law, and that John Towles became the purchaser.

In support of this deed the tax rolls for the year 1816, are produced, from which it appears, that the tax for which the land was sold, had been assessed, and was due by the heirs of D’Arby.

The former sheriff of St. Mary, by whom the sale was made, was examined as a witness. He states in general terms, that he is certain this sale was made after the advertisements and notices required by law, at that time. On his cross examination, he says, it is hard to recollect now the particular mode, but is persuaded that he advertised according to law. There was no newspaper printed in' the parish that year. Manuscript notices were posted up in both languages at the customary places ; he recollects perfectly to have done it.

It is shown that the heirs of D’Arby resided in the adjoining parish, and this suit was instituted in 1835. During all that time, except one year, the land was assessed as the property of Towles, and he paid the taxes, and that he exercised different acts of ownership.

In the case of Beeves vs. Towles, decided last September, 10 Louisiana Reports, 276, we held that a collector’s deed, without evidence of any assessment of the tax, was defective in form, as it did not show the warrant of the collectors to sell, and consequently not translative of property, and could not form the basis of the ten years’ prescription. If the converse of that proposition be true, little more would remain but to inquire into the character of the defendant’s possession under the deed for nearly twenty years.

IS Ut ■where the sheriff’s deed is supported by the assessment roll, showing the taxes were duly assessed for the year the sale was made, and proper notices given of the sale, the purchaser will acquire a good title, which will support the pre-sci*iplion of ten years. Testimonial proof is admissible to show that advertisements of sales were inserted in newspapers, and also that they were posted up at the usual public places required by law. Sheriffs’ deeds of sales of property for taxes, are not required to be recorded, to have effect against third persons, by the provisions of the registry acts of 1810 and 1813, or by the Civil Code of 1808.

But, it is contended, that the evidence is insufficient to show, that strict compliance with the law in relation to notices and advertisements, which this court has held to be essential to make out a valid title, under a sale for taxes in the cases reported in 4 Louisiana Reports, 150, 207.

Parties who lay by for so long a period of time, without asserting their claim; who suffer the circumstances which accompanied a transaction to fade from the memory of the vicinage, and even of those officially concerned in it, ought not to complain that less rigid evidence is admitted, nor ought they to gain by their own acquiescence while the transaction was yet recent, and when perhaps more complete evidence might have been obtained. In the present case it is not a little remarkable, that the collector was still alive at the trial of this case, and that from an original entry made at the time, he should remember enough of the matter to assert positively, that written advertisements were posted up in both languages, at the customary .places, without being so minute as to render his testimony suspicious. We have recently held, that testimonial proof is inadmissible to show advertisements in newspapers. These advertisements posted up in public places, are seldom, we believe, preserved, and if they were they would not prove per se, that they had been posted up in the usual places, and for any particular length of time.

But the plaintiff contends, that the sheriff’s deed can have no effect against him, because it was not recorded until after the institution of this suit, and that the act of 1813, as well as that of 1810, and the Civil Code of 1808, required, that such deeds should be recorded, in order to give them effect against third persons.

It does not appear to us that either of the provisions relied on, embraces deeds of this kind. The act of 1813, speaks of sheriff’s sales made under execution, and although in some respects there is some analogy between the two cases, yet the tax voll which is the warrant of the collectors to coerce the collection of taxes, is certainly not an execution, nor can the sale be said to be by the sheriff in that capacity. His sureties as sheriff are not responsible for his acts as collector. He gives a distinct bond.

Having a title, the cutting of wood, which, ^ouiTamountto a tresspass, must be regarded as an act of owner- and Posses*

The evidence clearly shows, that possession followed the ^ . r • deed, and that Dr. Towles continued to possess up to the time of his death. He cut wood and timber on the place habitually, and at one timé had a small enclosure which was J 3 . , used as a garden. Having a title, the cutting of wood, which, without one, would amount only to a trespass, must be regarded as an act of ownership and possession.

Being of opinion that the defendant has established a title in the estate to the whole tract, it is unnecessary to examine several other questions raised in the argument.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled, and that ours be for the defendant, with costs, in both courts.