91 So. 832 | La. | 1922
Lead Opinion
This is a suit under Act 38 of 1908 to establish title to the following land,
Plaintiffs claim this land by inheritance from their father and grandfather, Jabish Griffing, and, in the alternative, they claim one-half of this land by inheritance from their mother and grandmother, the first wife of Jabish Griffing.
Jabish Griffing married his first wife, Marian Harris on, in 1837. Pie bought the land in controversy from the United States in 1844 and 1847.
Marian Harrison died in 1849. There were six children born of this marriage. At the date of the filing of this suit, October 3,1917, all of these children were dead, except Mrs. Sue Harris, a daughter of Jabish Griffing, and three children of Jabe N. D. Griffing, a deceased son of Jabish Griffing. The surviving daughter and these grandchildren are the sole heirs of Jabish Griffing and Marian Harrison, and are the plaintiffs in this suit. The property in dispute is community property.
Jabish Griffing married again in 1859; his second wife being Mary Poindexter. No children were born of this marriage.
Plaintiffs rely upon the patents issued to Jabish Griffing by the United States in 1844 and 1847, as their muniment of title. - Defendant claims this land by mesne conveyances from Jabish Griffing, and also by mesne conveyances from a tax sale to the state of Louisiana in the year 1876.
In the year 1867, after his second marriage, Jabish Griffing made a dation en paiement, by authentic act, of all of the property involved in this suit, to the Union Bank of Louisiana.
In 1876, the tax collector of Franklin parish adjudicated to the state, under Act 47 of 1873, the S. Va and N. E. % of section 3, township 12, range 9, “the same having been seized for the payment of taxes due by the Union Bank of Louisiana as owner thereof according to the tableau and_ assessment rolls for the year one thousand eight hundred„and seventy^ive.”
Plaintiffs allege that:
“The whole title of the defendant, Charles P. Taft, is based upon the forfeiture to the state of Louisiana by the tax collector of the parish of Franklin, pretending to be acting under Act 47 of 1873, and for the taxes of 1872, 1873, 1874, and 1875”
—and that said forfeiture to the state is absolutely null and void, and without any legal effect for the following causes and reasons, to wit:
“(A) That the assessment of said property was not in the name of the record owner of said property, as shown by the records of the parish of Franklin.”
*447 “(B) That no public notice was ever given, either to Jabish Griffing and your petitioners, who were the record owners of said property, or to the Union Bank of Louisiana, as required by Act 47 of 1873.
“(0) That no written or printed notice was given to the owners or agent of the lands, their father and themselves being the owners of said lands, to pay this tax, as required by Act 47 of 1873; also that no legal notice was legally given to the Union Bank of Louisiana as required by said act.”
Section 8 of Act 47 of 1873 requires only the name and the amount of the tax to be stated in the delinquent lists to be recorded in the mortgage book, and this was done in this case. This constituted a valid seizure of this property under said act for the delinquent taxes then due.
In the case of Board of Commissioners v. Concordia Land & Timber Co., 141 La. 264, 74 South. 927, this court said:
“The invalidity resulting from the inclusion of an amount for taxes that were not assessed, with the taxes that were assessed and for which the sale could be legally made, was nothing more than if the tax collector had, by some other mistake, augmented the amount of the taxes that were assessed.”
It might be argued with much force to a constitutional convention that a sale of property for taxes that have been paid is no bet
Plaintiffs do not set up a dual assessment, or that the taxes for which the property had been sold to the state were paid, and they cannot be heard to urge other exceptions. Quaker Realty Co. v. Purcell, 134 La. 1024, 1025, 64 South. 894 ; Slattery v. Heilperin and Leonard, 110 La. 86, 34 South. 139 ; In re Quaker Realty Co., Ltd., 127 La. 208, 53 South. 526 ; Cordill v. Quaker Realty Co., Ltd., 130 La. 933, 58 South. 819 ; Quaker Realty Co., Ltd., v. Purcell, 131 La. 496, 59 South. 915 ; Leader Realty Co. v. Lakeview Land Co., 133 La. 646, 63 South. 253.
We, therefore, conclude that the adjudication to the state of this property in 1876 was legal and valid, and therefore divested Jabish Griffing of all right, title, and interest in and to this property, except as to the S. B. *4 of i;he N. E. % of section 4, township 12, range 9, which was not included in this adjudication, but which was included in the dation en paiement made by Griffing to the Union Bank in 1867, and which plaintiffs, as far as this record shows, have never regained by title of any kind since that date. The S. E. % of the N. E. % of section 4, township 12, range 9, however, is embraced in deed from Fifth Louisiana Levee Board to the North Louisiana Land Company in 1898, one of the authors in one of the chains of title of the defendant. The North Louisiana Land Company also acquired another title to the land in controversy; L.Lemle sold it to Block, Lowenburg, and Ullman in 1882; Block, Lowenburg, and Ullman sold it to F. Lowenburg in 1887; heirs of F. Lowenburg sold it to North Louisiana Land Company in 1889; North Louisiana Land Company sold it to Buckeye Stave Company in 1898; and Buckeye Stave Company sold it to Charles P. Taft, defendant herein, in 1905. We also find the S. E. % of the N. E. % of section 4, township 12, range 9, embraced in a deed from Block, Lowenburg, and Ullman to F. Lowenburg in 1887; in deed of heirs of F. Lowenburg to North Louisiana Land Company in 1889; and in deed of North Louisiana Land Company to Buckeye Stave Company, the immediate author of defendant’s title, in 1905.
Plaintiffs are without shadow of title to this property, or any part of same, claimed by them in this suit. The dation en paiement from Jabish Griffing and the tax sale of 1876 to the state of these lands cut off all their rights to the land in controversy, and left them without interest to bring this suit.
The plaintiffs, therefore, are without interest to attack the sale of this land by the state to Lemle in 1881 under Act No. 107 of 1880, and the sale by the state through its auditor of said property to the board of levee commissioners of the Tensas levee district
We, therefore, conclude that plaintiffs have no title to the property in dispute in this case, and that the defendant claimant is the owner of the land involved in this litigation.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that the demand of plaintiffs be rejected and their suit dismissed at their cost.
Rehearing
On Rehearing.
Of the several defenses urged against this suit, is one which was not discussed in the original opinion, but which Appears to be an absolute bar to the plaintiffs’ action. They are the direct descendant heirs, the forced heirs, of Jabish Griffing and his wife by first marriage, Marian Harrison Griffing. The land sued for belonged to the marital community. After the death of Griffing’s wife, and after he had married again, he transferred the land to the Union Bank of Louisiana, in satisfaction of a debt, represented by two promissory notes held by the bank, amounting to $3,865, on which the bank had brought suit against Griffing. At that time, of course, the children of his first marriage had inherited their mother’s half interest in the community property. Nevertheless, the deed given by Jabish Griffing to the bank purports to have conveyed title for the whole property, and the instrument, executed before a notary public and two witnesses, contains the following obligation of warranty, viz.:
“And the said vendor, for himself and his heirs, shall and will warrant and forever defend the said property against the legal claim or claims of all and every person or persons whomsoever, by these presents; and the said vendor hereby moreover subrogates the said purchasers to all his rights and actions of warranty against his own and all previous vendors of said land, to exercise said rights and actions in the same manner as he himself might have done.”
In this suit, plaintiffs claim title for the whole properts' by inheritance from the deceased, Jabish Griffing, and his deceased wife, Marian Harrison Griffing. In their petition they alleged that defendant claimed title by mesne conveyances from the Union Bank of Louisiana, and they set forth, with particularity, the various deeds — some being conventional transfers and some sales for taxes — under which defendant claimed title. They did not, however, in their petition, mention the deed from Jabish Griffing to the Union Bank of Louisiana. Their petition, therefore, disclosed a right of action. But defendant, in his answer, asserted and relied upon the deed from Jabish Griffing to the Union Bank of Louisiana; the warranty clause in which deed, in our opinion, deprives the plaintiffs of any right of action which they might have had to recover even the interest claimed by inheritance from their mother.
In Walker v. Port, it was said:
“The heir is bound by the warranty of the person, whose inheritance he accepts.”
In Stokes v. Shackleford, it was said: -
“The heir cannot claim against the warranty of His ancestor, but is estopped by it from asserting title, although the title never vested until the ancestor’s death.
“If the vendor sells without title at the time of sale, but acquires title afterwards, it will accrue to the benefit of the vendee.
“The obligation of warranty descends to the héir of the vendor, and one of its first objects is, the buyer’s peaceable possession of the thing sold. In this respect, the obligation is indivisible, although in regard to damages consequent on eviction, each heir may only be bound for his virile share.”
In Smith v. Elliot, it was said:
“The obligation not to disturb, and even to maintain the purchaser in the quiet enjoyment of the thing sold, is one to which the plaintiff succeeded on accepting the estate of the vendor as heir or coheir. It is an indivisible obligation so far as it repels the coheir who seeks to disturb the title of the purchaser.”
In Gusman v. Berryman, Mr. Justice White, late Chief Justice of the Supreme Court of the United States, said, referring to the plaintiff in the case:
“Could he be successful in ousting his mother, he and his coheirs would be her warrantors, and hence the doctrine ‘Quern de evictione tenet actio eundem agentem repellet exceptio’ is fatal to his pretensions. He claims that he has a new title. Grant it. His new title comes from his coheirs, and he cannot undo as an actor that which he would be compelled to make good as a warrantor. Even did he and his coheirs, and he through them, have a title emanating from a different source than their father, they could not be heard under such circumstances to destroy the very right they are bound to maintain.”
In McQueen v. Sandel, it was said:
“Where the averments in a petition amount to an acceptance of- a succession, the -plaintiff is estopped from contesting a valid title derived from the person to whom he succeeds; he is the warrantor of the title.”
In Sevier v. Gordon, it was said:
“Heirs who, when they attain majority, sue for a partition of the property of the succession, and enter into its possession, thereby accept the succession purely and simply. They cease to be beneficiary heirs, and become personally bound-, for the debts of the succession.”
In McCall v. Irion, it was said:
“A party suing in virtue of her right as simple heir, for property that has descended to her as an inheritance, occupies the exact attitude before the court as would the ancestor himself, as plaintiff.”
In Cochran v. Gulf Refining Co., where the plaintiffs sued to annul a contract made by their mother after their father’s death, purporting to extend the term of a mineral lease on community property, it was said:
“Pretermitting the question whether the widow, as owner of one half of the land and usufructuary of the other half, could bind the co-owners by her contract extending the term of the'lease, she bound herself by -that contract; and, by accepting her succession unconditionally and partitioning the land that was subject to*455 the lease, which she was bound to respect, her heirs assumed her obligations with respect to the land, and were thereby bound to recognize the contract of lease. See R. O. O. 1013.”
As we explained in the opinion handed down to-day in Berry v. Wagner, No. 22933 (La.) 91 South. 837,1 the ruling in Tessier v. Roussel, 41 La. Ann. 474, 6 South. 542, 824, and the opinion rendered on rehearing in Chevalley v. Pettit, 115 La. 407, 39 South. 113, are not in conflict, but in accord, with the decisions which we have cited.
“The plaintiff and his coheirs are not third persons, nor is the community between the plaintiff and his wife a third person quoad the plaintiff himself, the head of and master of the community. A title good without registry as to the head of the community is likewise good as to the community.”
The decree heretofore rendered by this court is now reinstated and made the final judgment of the court.
Post, p. 456.
