99 So. 865 | La. | 1923
Plaintiff alleges in substance that he is the owner and possessor of a tract of land measuring 136 feet 10 inches front on Claiborne street, in the city of New Orleans, between Egania and Lizardi streets by a depth between parallel lines of 9,069 feet; that the defendant has recorded what purports to be a deed, from the auditor of this state, of 15 squares of ground claimed to be a part of plaintiff’s above-described property, and alleged to have been adjudicated to the state on May 27, 1889, for delinquent taxes of 1888 assessed in the name of Michel Florane, and described as “15 squares of ground, etc., Nos. 1630 and others, in the Third district of the city of New Orleans, bounded by Lizardi, Gamory, Florida Walk to Pelopidas street, measuring 110 feet front by 5,461 feet in depth; that said adjudication to the state upon which defendant’s alleged title rests, is an absolute nullity, for the reasons: (1) That said assessment was made in the name of Michel Florane, who had died in the year 1870; (2) that no notice of delinquency was given; and (3) that the description is radically defective.
Plaintiff further alleged that, when he bought said property on December 5, 1902, he procured clpar tax and other certificates, showing no delinquent taxes due on said property and no alienation to the state, and that he has paid all -taxes legally assessed against said property since his acquisition thereof, and has always enjoyed full and uninterrupted possession of the same. Whereforejie prays that the deed from the auditor to defendant be decreed a nullity, and the registry thereof be declared as not bearing on or affecting his property herein first above described.
Defendant filed several exceptions to plaintiff’s suit, averring that said exceptions were pleaded in the alternative, each being urged only in case the preceding one should be overruled: (1) That plaintiff’s suit was premature, for the reason that plaintiff had failed to pay costs in another suit between the same parties, No. 85779 of the docket of the civil district court; (2) it further excepted that, “before respondent can be required to further plead to the demand of plaintiff,
It seems that the suit No. 85779 of the docket of the civil district court was founded on the same cause of action as the present one, was filed April 13, 1908, and the plaintiff therein, who is plaintiff in the present suit, prayed that the State Realty Company, defendant in the present suit, be condemned to pay petitioner $2,500 damages for slander of title, and prayed further that the auditor’s deed of March 22, 1907, to defendant be cancelled. On May 4, 1908, plaintiff discontinued any portion of his demand which prays for the nullity of the tax sale, but it appears, nevertheless, that on March 18, 1910, a judgment was rendered by the trial judge annulling the deed by the auditor in favor of defendant, and it also appears that said judgment erroneously describes all of plaintiff’s land as being included in that, deed, and that said judgment is silent as to plaintiff’s claim in damages. Defendant then took an appeal to the Court of Appeal, and a judgment was rendered by that court, November 7, 1910, reversing that rendered by the district court On March 18, 1910, and. remanding the case for trial de novo. The case was again lodged in the district court, and remained in abeyance until March 8, 1916, when, at the request of defendant, it was adjudged to have been abandoned under the provisions of Act 107, p. 155, of 1898. It is upon this suit and the judgment of March 8, 1916, decreeing its abandonment by plaintiff, that defendant bases its exceptions of nonpayment of costs, estoppel, and res adjudicata.
Defendant’s prayer for oyer has evidently been complied with, for it is not alluded to in brief or argued in this court, and the exception of no cause of action has virtually also been abandoned. Defendants other exception based upon prescription will be adverted to at the proper time, on the merits of the demand.
After considering defendant’s exceptions which have been invoked in this court by an answer to the appeal and argued in the order presented by the pleadings, we are of the opinion that neither of them is sustainable in law under the jurisprudence of this state.
It is clear from the language of these two provisions of the Code that the first has no application here, for the reason that the plaintiff has never discontinued the suit, thoqgh fie did discontinue “any portion of his demand which prays for' the nullity of the tax sale,” and that neither can the secondly cited provision apply, as it is not pretended that plaintiff has failed to appear in person or by attorney after the cause had been set down for trial, and a judgment of nonsuit
The cited act of the Legislature is an amendment to article 3519 of the Civil Code, which is found under section 5 of chapter 3, title 23, of that Code, treating of the causes which interrupt prescription. The amended article, when read in connection with the subject-matter of the section and of the article 3518 immediately preceding it, clearly means that a suit which has been abandoned for nonaction during a period of five years does not constitute a legal interruption to the course of prescription, and its effect is to leave a plaintiff in the same position that he wopld occupy if he had not instituted the suit.
In the case of Laenger v. Laenger, 138 La. 540, 70 South. 501, it was said, in commenting on the effect of article 3519, C. C., as amended, that a judgment dismissing a suit for having been discontinued or abandoned could not be the basis of a plea of res adjudieata. We have examined the following eases, in which the cited article of the Code, as amended in 1898, has been passed upon, viz.: Lips v. Royal Ins. Co., 149 La. 359, 89 South. 213; Reagan v. Louisiana Western R. Co., 143 La. 754, 79 South. 328; Barton v. Burbank, 138 La. 997, 71 South. 134; Teutonia Loan & Bldg. Co. v. Connolly, 133 La. 401, 63 South. 63; City of New Orleans v. Jockey Club, 129 La. 64, 55 South. 711; Howcott v. Petit, 130 La., 791, 58 South. 574; and Lockhart v. Lockhart, 113 La. 872, 37 South. 860, and we find nothing in any of these decisions conflicting with what was said in the Laenger Case. A decree rendered in conformity with article 3519, sustaining a plea of abandonment, does not decide any controversy between the parties. It has no effect upon their legal rights or obligations, and serves only to leave them in the same position as if no such suit had been instituted.
“And respondent, deeming that the suit of plaintiff is an action in slander of his alleged title, and to remove respondent’s title as an incumbrance against same, stands ready to defend its title to the said property in any proper legal proceedings, but it shows that it cannot be called upon, against its will to defend its title in these proceedings.”
Defendant then prays “that the demand of plaintiff be dismissed, and that, should the court determine that this is a suit in slander of title, then that it be ordered to file suit against respondent (should be that respondent be ordered to file suit against plaintiff) to try title within a period to be fixed by the court. And it further prays for all costs and for general relief.”
It is difficult, owing to the meager information furnished by the record, to describe in detail the successive steps in the proceedings ibad in the district court in the presentation of this case. We find no ruling by the district judge on defendant’s exceptions, though admittedly they were all overruled, and, al
There is still another reason why the prescription under article 233 of the Constitution of 1898 cannot operate in favor of defendant. It appears from a certificate issued by the state tax collector, under date of February 5, 1902, that the taxes of 1888, assessed upon the whole tract purchased by plaintiff, and upon prior nonpayment of which defendant’s title rests, were paid on May 7, 1889, while the adjudication to the state under which defendant claims was made by the tax collector on May 27, 1889, the deed passed on June 10th, and recorded on June 11, 1889. It also appears from another certificate of the tax collector, of date July 2, 1907, that the1 taxes of 1888, based on an assessment of only that part of the tract claimed by defendant, were unpaid, and that the tax collector sold the portion so assessed, in satisfaction of that tax. The only logical deduction that can be drawn from these two certificates is that there was a dual assessment, that the rear part of the tract of land was included in an assessment of the whole tract as described in the, first certificate, and
For these reasons the judgment appealed from is avoided and reversed, and it is ordered that the sale by the auditor of public accounts of this state to defendant, the State Realty Company, Limited, of date March 22, 1907, be declared null and void, and the registry thereof in the conveyance' office of the parish of Orleans be canceled as void and of no effect; defendant and appellee to pay all costs.
Rehearing denied by Division A, composed of O’NIELL, C. J., and ROGERS and BRU-NOT, JJ.