35 So. 780 | La. | 1903
Statement of the Case.
On the 4th of October, 1890, the Citizens’ Bank, in the suit of the Citizens’ Bank against Daniel' Vaughan (No. 31,068 of the docket of the civil district court for the parish of Orleans), applied for and obtained a writ of seizure and sale of certain described property in the city of New Orleans in enforcement of an indebtedness of $17,727, with interest, alleged to he due it by the defendant Vaughan, and secured, as to payment, by special mortgage on the property named.
The sheriff of the parish of Orleans executed the writ in the manner directed by law; giving the proper notices, and recording the fact of seizure in the office of the recorder of mortgages in the city of New Orleans. The registry of the seizure has not been canceled.' The sheriff advertised and offered the property for sale, and the plaintiff alleges that it was adjudicated to it.
On the 28th of October, 1891, the Citizens’ Bank suggesting that the properties seized and advertised for sale, which it described, had been adjudicated; that there were inscribed against said property the taxes, tax privileges, and mortgages, as follows: of the state of Louisiana from 1880 to 1888, inclusive; of the city of New Orleans from. 1878 to 1S87, inclusive; that all of said inscriptions were recorded against Daniel Vaughan or Patrick Irwin, or others, as shown by certificates annexed; that said asserted taxes, tax privileges, and mortgages were extinguished by the acts of the Legislature (No. 96 of 1877, p. 142, § 36; No. 77 of 1880, p. 95, § 24; No. 98 of 1886, p. 145, § 34; and No. 26 of 1886, p. 37); said prescriptions being expressly pleaded against said asserted taxes, tax privileges, and mortgages, and against the prescriptions thereof; that said inscriptions should be erased and canceled, so that the sheriff might pass a clear title to the purchaser- of the property— the court ordered that the city of New Orleans, the state tax collector of the Third
The defendant Marr excepted, first, that plaintiff’s petition disclosed no cause of action against him; second, in bar of plaintiff’s action, he invoked the prescription- of liberandi causa of three, five, and ten years.
The court sustained defendant’s exceptions of no cause of action, and dismissed plaintiff’s petition as in case of nonsuit, with full reservation of its right of action in any appropriate legal form.
On application of the plaintiff, this judgment was set aside, and a new trial granted, the judge declaring that he was convinced that he ought to hear the case on its merits; that, on consideration, he thought that the defendant and any warrantor might be called in, and any question that might arise on the settlement of title to land could be heard and determined, as the suit was by citation, the object of which was to settle conflicting-questions of title.
The defendant Marr, under reservation of the exceptions he had before filed, excepted further.
He denied that the civil sheriff had the possession, either civil or corporeal, of the property described.
He averred that he and his author had had the corporeal possession of the property for more than three years prior to the filing of the suit, during which time it had been under fence and leased to various tenants, and he (defendant) then had such possession.
An application was made to refer these exceptions to the merits. The court granted this application, with leave to defendant to file further answer, should he choose so to do. No answer was filed, hut it appears from a written statement filed herein, signed by counsel of both parties, that the exceptions were treated as an answer, and the case was tried on the exceptions as an answer. Defendant waived, as he had the right to do, the exception of no cause of action (Noble v. Flower, 36 La. Ann. 737), and that of prescription, as such, and to depend upon them on the merits. The court rendered judgment, after hearing, in favor of the defendant and against the plaintiff, dismissing the suit, but reserving his right to sue and to assert title, and to annul defendant’s claim of title, in any appropriate form of action. It assigned no written reasons for its judgment. Plaintiff appealed.
Opinion.
On the trial, plaintiff offered in evidence the record in the matter of the Citizens’ Bank against the Succession of Daniel Vaughan (No. 31,068)—particularly the act of mortgage, and the note, the petition, the writ, service of the same, and all services made by the sheriff, and his return thereon; also a certificate from the recorder of mortgages showing- recording of notice of seizure, and that it had not been canceled; also the rule against the city and state, and the judgment rendered thereon. The defendant objected to this evidence as being irrelevant to the issue; the issue before the court being purely one of possession, it being incumbent on the plaintiff to show possession in order to prosecute the action.
The objection was by the court referred to the merits. Plaintiff’s counsel objected to the statement of fact or conclusion that the only question was one of possession, and dissented from such statement. He excepted to the ruling of the court, and took a note
Neither party offered in evidence the alleged adjudication of the property to the state, the deed .of transfer from the State Auditor to Wm. W. Wall, or the act of transfer from Wall to the defendant Marr.
The record in the case of the Citizens’ Bank against Daniel Vaughan shows the proceedings therein up to and inclusive of the rule against the state tax collector and the recorder of mortgages to erase and cancel the taxeSj tax privileges, and mortgages, and the judgment of the court thereon, but stops short of the offering of the property at auction, and the adjudication of the same to the plaintiff. Defendant’s pleadings show denial-by him of the allegations of plaintiff’s petition.
The petition of W. W. Wall in the matter In re Wall, praying for possession, etc., recited that he had purchased from the State Auditor, acting pursuant to and by virtue of Act No. 80 for the year 1888, p. 88, and Act No. 126, p. 181, for the year 1896, by deed executed April 27, 1898, certain property, which he described in detail; that, pursuant to the provisions of said act of the General Assembly, he desired to be sent into possession of said property by- a writ of possession and seizure issuing from the court.
Declaring that he annexed said deed to his petition (which was not the fact, so far as the present record shows), he prayed that a writ of seizure and possession issue, directed to the civil sheriff, commanding him to seize the described property, and place him in the actual possession of the same, pursuant to and in accordance with the provisions of law, and more particularly section 5 of Act No. 80 of 1888, p. 90. He prayed further for all general and equitable relief.
The court thereupon ordered, on the 13th of May, 1898, that a writ of seizure and ijossession be issued as prayed for, directed to the civil sheriff, commanding him to seize the property, and to place petitioner in the actual possession thereof, pursuant to and in accordance with the provisions of section 5 of Act No. 80 of 1888, p. 90. A writ to the sheriff was accordingly issued to and received by the sheriff on the same day. On June 4, 1902, the sheriff made the following return to the court on the writ:
“Received Friday, May 13, 1898. After giving the notice to defendants and occupants herein, placed plaintiff in full possession of the within-described property, as will more fully appear by reference to the receipt of plaintiff herein, of date July 3, 1898, on reverse thereof. Writ returned to court satisfied June 4, 1902.
“Sheriff fees for the writ, $2.
“[Signed] Charles J. Jackson,
“D’y Sheriff.
“Received possession the within property on July 3, 1898.
“[Signed] Wm. Winans Wall.”
We do not know on what theory this suit was dismissed. We should judge, from the terms of the judgment, that it was, in the opinion of the court, neither a petitory action, nor an action of jactitation, and that, unless the case was presented under the conditions required to enable it to be classed as either one or the other of the two actions, it could not stand at all, and, as presented, plaintiff should be sent out of court. If that was the ground of the court’s action, we think it erred.
The plaintiff in this ease alleged himself to be the adjudicatee at execution sale of certain described property; that defendant claims to be the owner of the same property under a certain illegal adjudication of that property, and at an illegal tax sale made by the state authorities, followed by an illegal conventional private sale made to him, or his vendor, by the State Auditor; that this defendant and his authors have placed this asserted claim of record, to plaintiff’s injury and damage. Under these allegations he
The pleadings of the plaintiff in this case were evidently not framed to meet the defense of the defendant based upon the simple fact itself of possession, without the assertion of specified title in support of this possession. If a person has a legal right, needing judicial enforcement or judicial protection, it is a general rule that he is entitled to be accorded a legal remedy. What the,legal situation would call for as to the evidence to be adduced, the proof made, and by whom it should be made, would depend upon the features of the different cases. It does not follow, because a suit does not fall technically under some defined classification of actions, or some special action controlled as to its own requirements by fixed rules of practice, that therefore it should be necessarily dismissed. There may legally be in-nominate actions, not particularly provided for, just as well as there may be innominate contracts or obligations. In this particular case plaintiff’s allegation that the property at the institution of the suit was in the possession of the sheriff under the seizure in the matter of the Citizens’ Bank against Daniel Vaughan was negatived on the trial by the evidence adduced. It was shown by the return made by the sheriff in the matter In re Wm. W. Wall, asking for possession, that he had surrendered to Wall such possession of .the property as he then held. Wall may not have had the legal right to that particular writ under the purchase he had made, the sheriff may not have had the legal right to have made the surrender in the manner and form which he did, and under the- circumstances and conditions then existing (the notices he states he gave may not have been given to the right persons), and the course pursued may not have resulted in a legal taking of possession by Wall; but, as a fact, there was such a surrender and a declared placing in possession of Wall of the property by the sheriff, which was followed by a return of the writ in his hands, and the immediate inclosure of the property by Wall in 1898. The testimony shows that it was at that time unoccupied, vacant property. Whether it had ever before then been occupied, and, if so, by whom, and for how long a time, does not appear.
The defendant’s defense, so far as his own pleadings went, was based upon his alleged possession, and he himself was precluded from seeking to have the case dismissed. If the suit was not sustainable as a suit of slander of title, it had, so far as the defendant was concerned, and his own position in the case, sufficiently some of the features of a petitory action to authorize an adjudication between the parties of the issues raised, between them. Michel v. Stream, 48 La. Ann. 341, 19 South. 215, is no authority to the contrary. That case was not dismissed, but went to trial on the merits, and was decided finally. Plaintiff’s allegation that the sheriff was in possession 'of the property at the time of the suit is an admission that he himself had not taken possession under the adjudication to himself, and this admission is fortified by the evidence showing the unimproved character of the property. When the case went to trial under the conditions it did, plaintiff failed to introduce the various acts which he had in his pleadings directly attacked, and which in fact was the title under which Wall claims ownership. The defendant could not, by limiting his defense to one resulting from simple possession, restrict plaintiff’s own affirmatively stated grounds of attack upon him. Brigot v. Brigot, 49 La. Ann. 1439, 22 South. 641.
The lower court had, and this court now