No. 22850 | La. | Jan 28, 1918
Lead Opinion
On Motion to Dismiss.
Plaintiff brought this suit under Act 101 of 1898 to confirm a tax title, and caused curator ad hoc to be appointed to represent A. Eerre, the former owner, or his heirs, upon the allegation that he was uninformed as to his place of residence, or whether he was living or dead, but believed that he was dead, leaving nonresident heirs. Thereafter Henry St. Gez and Miss Louise St. Gez appeared, and on March 26, 1913, filed an answer,-alleging themselves to be the sole heirs of the deceased owner, residents of Erance, and owners of the property in question, and praying that they be so decreed; and there was judgment as thus prayed for, on July 15, 1915, from which plaintiff has appealed. Defendants now move to dismiss the appeal on the grounds:
That no citation of appeal was ever issued or served on appellees.
That this court is without jurisdiction; the value in dispute not being shown by the pleading to exceed $2,000.
That the transcript is not properly indexed, and does not include all the documents filed; that the same does not comply with section 7 of rule 2 of this court.
State v. Graham, 25 La. Ann. 433" court="La." date_filed="1873-05-15" href="https://app.midpage.ai/document/state-ex-rel-nixon-v-graham-7189715?utm_source=webapp" opinion_id="7189715">25 La. Ann. 433; Hefner v. Hesse, 26 La. Ann. 148" court="La." date_filed="1874-03-15" href="https://app.midpage.ai/document/fuqua-v-chaffe-7189948?utm_source=webapp" opinion_id="7189948">26 La. Ann. 148; Vallee v. Hunsberry, 108 La. 136" court="La." date_filed="1902-07-01" href="https://app.midpage.ai/document/vallee-v-hunsberry-7163857?utm_source=webapp" opinion_id="7163857">108 La. 136, 32 South. 359.
The motion to dismiss is, therefore,
Overruled.
Opinion on the Merits
On the Merits.
Plaintiff instituted this suit under Act No. 101 of 1898 to confirm the title to certain property situated in the parish of Plaquemines, sold in the name of A. Ferre for the delinquent taxes of 1899, and purchased by Felix Hingle, one of plaintiff’s vendors, on June 16,1900, the petition setting forth a full chain of title from the tax purchase down to plaintiff. The petition alleged that Ferre was dead, that his heirs resided out of the state, and a curator ad hoe was appointed to represent them, and upon whom service of notice was made under the statute.
Thereafter Henry St. Gez and Miss Louise St. Gez appeared through their agent and attorney in fact, John Watts, and, alleging themselves to be the sole surviving heirs of A. Ferre, deceased, and that they were residents of Pau, republic of France, pleaded lis pendens, based upon a suit filed by them on November 5, 1902, against Felix Hingle, No. 200 on the docket of the lower court, for the purpose of annulling the tax sale. The present action was filed on February 3, 1913, and on the 10th of June, 1913, the lower court signed a judgment dismissing the suit of defendants against Hingle for want of prosecution, for more than 5 years.
On March 23, 1913, defendants filed an answer in the present case, claiming the ownership of an undivided one-half interest in the property in dispute, as the lawful heirs of A. Ferre, denying that plaintiff had any right or interest therein, and further disclaiming any interest in the property formerly owned by Felix Hingle, and attacking all of the transfers by which plaintiff claimed to have acquired. They further averred that said property was never assessed to defendants, who were the lawful owners thereof at the time, their said ancestor having died prior to the assessment and sale, to wit, January 3, 1899; and that no notice of delinquency was ever served upon them. They further
Plaintiff pleaded the prescription of 3 years under article 233 of the Constitution of 1898, in bar of the defenses set up by defendants, and, further, that the judgment of dismissal in the case of defendants against Felix Hingle was res judicata of- said defenses.
The judgment of the lower court was in favor of defendants; dismissing the petition of plaintiff, and decreeing defendants the owners of the property. Plaintiff prosecutes this appeal.
Opinion.
' “If the plaintiff in this case, after having made, his demand, abandons or discontinues it, the interruption shall be considered as having never happened.
“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”
“A certain tract of land with all the buildings and improvements thereon, situated in this parish on the left bank of the Mississippi river, measuring eight arpents front by forty arpents depth, bounded above by lands of Joseph A. David & Co. and below by lands of John Kelly.”
The record further discloses that the only property ever owned by A. Ferre, in,the parish of Plaquemines, was an undivided one-half interest in—
“a certain tract of land situated in this parish, on the left bank ’ of the Mississippi river, at about sixty miles below the city of New Orleans, designated as township 19, range 16, sections 2, 3, 4, and half of section 5, making in all about fifteen acres front on said river, by forty (40) arpents depth, bounded above by lands of Samuel Allen, and below by lands of George Johnson, together with all the buildings and improvements thereon, and thereunto belonging, without exception or reservation.”
It is further proven that at the time of the tax sale to Hingle, John Kelly was the owner of the lands on the lower or south side of this same tract, and that Joseph David & Co. were the owners of an undivided half interest in the whole tract of 15 acres
For the reasons assigned, the judgment appealed from is annulled and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of plaintiff and against defendants, decreeing him the owner of a certain tract of land, with all of the buildings and improvements thereon, situated in the parish of Plaquemines on the left bank of the Mississippi river, about 60 miles below the city of New Orleans, La., and being the south half of that certain tract designated as in township 19, range 16, consisting of sections 2, 3, 4, and half of section 5, having 15 acres front on the river, by 40 arpents depth, bounded above by lands formerly owned by Samuel Allen, and on the south by lands formerly owned by George Johnson, together with all the buildings and improvements thereon and thereunto belonging; and that the defendants pay all costs.