117 F.2d 1 | 5th Cir. | 1941
Lead Opinion
The suit was for title to, and for damages for timber cut from, the E% of the Ey2 of Section 73 T. 19 S.R. 17 E„ Ter-rebonne Parish, Louisiana.
The claim as to title was that plaintiffs, under the tax redemption statutes of Louisiana,
There was an alternative defense to the action for damages that, if the redemption was valid it was not retroactive as to the trespass, and the trespass and taking having occurred while the title was in the state, plaintiffs were without right of action therefor.
Submitted to the court without a jury upon an agreed statement of facts,’
Appellant’s primary position as to the title is: that though no formal conveyance from the state to the Board of Commissioners can be found of record, the notation on the Auditor’s record, “Atcha-falaya Basin Levee District Fund”, taken with the testimony of the employees of the Auditor and of the Land Office, the 1912 certificate of the Register of the Land Office, the recitations in the deed from the Board to Mrs. Engman and the long continued possession of Mrs. Eng-man and her’ successors under that deed, establishes that there was a deed of conveyance from the state which has become lost or mislaid. In the alternative it insists that these facts certainly show a vested right in defendant as successor to the Board to have a deed of conveyance from the state, and when plaintiffs attempted to redeem the property it was no longer the property of the state, subject to redemption. Its secondary position as
To defendant’s claim that plaintiffs would be without right to sue for trespasses committed while the title was in the state, plaintiffs reply; that a redemption is different from a purchase; that by it the title was not acquired, it was merely relieved of the adjudication to the state and title was revested in them and their ancestor as of the date of sale; and, that upon the principle of relation they are regarded in law as having been in continuous ownership of the property and therefore entitled to sue for damages, those who have trespassed upon it.
We think the judgment was right throughout and should be affirmed. Whatever might have been said, before State ex rel. Fitzpatrick v. Lucille May Grace, 187 La. 1028, 175 So. 656, as to the law of this case, as to defendant’s claims of title and of right to title from the state, and whatever difficulties might have presented themselves in determining these claims, the decision in that case has removed the matter from discussion by flatly settling it that one situated as defendant is, has, since the Act of 1924, neither title nor right to demand title from the state. The district judge decided the title questions as he did upon the authority of the Fitzpatrick case. It can serve no useful purpose for us to analyze that case or canvass and discuss appellant’s arguments against its binding force. It suffices to say that we agree with the district judge that that case supports his determination, that we are bound by it, and under its authority the district judge was right in concluding that defendant had made out neither a record title nor a right to demand one.
We think the district judge was right too in holding that, the title in the state during all the period of defendant’s possession, indeed until redemption, was a complete and absolute one and that no prescriptive title has been acquired by defendant. Appellant’s effort to distinguish between prescribing against the state and against the right of the redemptioner, will not, we think, do. The statutes provide that until the state has sold the property it may be redeemed. The statute and the decisions under it make it clear; that after the primary year has passed and before -actual redemption, the state is absolute owner of, and can do what it will with the property; and that until redemption, the redemptioner has no right or title whatever in it. Home Land Co. v. Bryant, 6 La.App. 130; Baker v. Smith, 44 La.Ann. 925, 11 So. 585; Perrin v. Stuyvesant Ins. Co., 140 La. 812, 74 So. 110; St. Bernard Syndicate v. Grace, Register, 169 La. 666, 125 So. 848; Wall v. Rabito, 138 La. 609, 610, 70 So. 531; Board of Com’rs v. Concordia Land & Timber Co., 141 La. 247, 74 So. 921; 2 C.J. 215; 2 C.J.S., Adverse Possession, § 12. This being so, it would, we think, be unreasonable in the extreme to hold that one who is unable to assert dominion over property, who indeed has no title to or claim against
Finally, we think the court was right in deciding plaintiffs’ claim for damages against them, for though it be true that upon redemption the plaintiffs reacquired the title for certain purposes, as of the date of its adjudication, this purpose was, as the certificate in terms declares, of legally subrogating them, “As owner to all rights, liens, mortgages of the state incident to and growing out of the taxes for the year 1894, and i'ts records in the offices required by law without prejudice to any privileges or mortgages of the state, parish or municipal corporation, for other taxes.” The owner then in retaking the property, except for subrogation to the state’s liens for the taxes of 1894, retook it not as it was in 1895, but as it was in 1938, and it cannot we think, be said that by the redemption, plaintiffs must by a fiction be regarded as the owner of the property continuously from 1894, and as such owner, entitled to sue for trespasses committed on the property before its redemption. If, after redemption, plaintiffs are, as they assert for the purpose of their damage claim, to be considered as having been the owners of the property continuously since 1894, it is difficult to escape the conclusion that defendant is right in its insistence that plaintiffs have lost their title by prescription. For, if after and because of redemption, they must be fictionally regarded as owners of the property, at the time the timber was taken, so as to be entitled to sue for trespass thereon, they must by fiction be regarded as such owners during that' period for purposes of prescription against them and as having long ago lost the title thereby.
We think the district judge instead of treating the matter fictionally as plaintiffs and defendant alternatively urged upon him for their respective purposes to do, wisely treated it from the standpoint of the facts as they were, and disposed of the claims of prescription and trespass accordingly. While we are not bound by it plaintiffs’ case in our opinion is not bettered by the West Virginia decision
“However, if he acquired the title after the injury, and the title is retrospective in character, dating back prior to the time of the injury, he may maintain his action.” Saying that in West Virginia, the state had no complete title to the land but only a title to it for the purpose of getting its taxes out, and, “it - seems to have been the purpose and intent of the Legislature, * * * that when the former owner redeems his land he is entitled to receive, not only his former title, But the land itself as it was immediately before the title became vested in the state, and that he is reinvested, not only with the same title he had before the forfeiture, but the right to institute an action of trespass the cause of which rose while 'the title to the land was vested in the state”, it held the redemptioner entitled to sue.
Not only does it appear that in a later opinion in the same case, Elk Garden, etc., Co. v. Gerstell, 100 W.Va. 472, 131 S.E. 152, the Supreme Court of West Virginia expressed grave doubt whether the rule laid down by it was correct, but a reference to Gilbert v. McDonald, 94 Minn. 289, 102 N.W. 712, 110 Am.St.Rep. 368, the case on which the quotation from R.
The judgment is affirmed.
“If the owner or any person interested personally or as heir * * * or otherwise, in any lots or lands bid in for and adjudicated to the State, as long as the title thereto is in the State, shall pay * * * the Register of the State Land Office * * * shall execute and deliver to such persons a certificate of the 'same * * * which shall be held and taken as evidence of the redemption of such land * * * .” ’ Act No. 41 of 1912, amending Section 62 of Act No. 170 of 1898. Also Act No. 237 of 1924.
Prior to June, 1895, plaintiffs’ ancestor was the owner of the property in question and on that day it was adjudicated to the State of Louisiana for unpaid taxes thereon; on January 12, 1938, plaintiffs paying all taxes required of them, redeemed the property from the State of Louisiana and obtained and recorded in the Parish of Terrebonne, a redemption certificate, executed by the Register of the State Land Office.
As to defendant’s claim of title by Act No. 97 of 1890, the Louisiana ’ Legislature created the Board of Commissioners for the Atchafalaya Basin Levee District and granted to said Board all of the lands in said district, then belonging to the State of Louisiana, or as to which the State might thereafter become owner by or through tax sales, it being provided that conveyances should be made to the Board “by proper instruments of conveyance” after the period of redemption shall have expired, by the Auditor and the Register of the State Land Office on behalf of and in the name of the State, upon request of the Board or its president, the president to cause said conveyance to be properly recorded in the recorder’s office of the parish where the land was situated.
At the time of the execution of the tax sale to the State dated June 8, 1895, hereinabove referred to, the Auditor was vested with jurisdiction
The Auditor’s records, referred to above, including the record in which the entries therein referred to were made, were subsequently filed with the Register of the State Land Office and became part of the records of that office. Mr. W. B. Seymour, in' the State Auditor’s office and who has been connected with that office since August 1, 1904, and Mr. Carl Campbell, Chief Clerk of the State Land Office and who has been connected with that office since January 1, 1920, stated that they have been familiar with these records since the dates that they became connected with their respective offices and it was their understanding that the entries made by the previous officials, including the entry “Atchafalaya Basin Levee District Fund” (appearing under “Remarks and Date of Redemption” opposite the entry concerning the adjudication above referred to) meant that the lands therein described had been transferred to the Atchafalaya Basin Levee District.
In January of 1900 the Board of Commissioners for the Atchafalaya Basin' Levee District executed an instrument conveying to Mrs. Engman “all of the rights, titles and privileges acquired by the Board from the State of Louisiana by Act 97 of the Legislature at its regular session in the year 1890, in and to the E% of E% of Section 74, T. 19 S. R. 17 E., which said lands wore transferred to the Board under the authority hereinabove mentioned and the Board of Commissioners by this present act does transfer and quit claim unto Mrs. Eng-man all of its title thus acquired.” This instrument was not actually recorded until June 16, 1914. On February 6, 1912, there was placed of record in Terre-bonne Parish, an instrument signed by Fred Grace, register of the State Land Office, wherein he declared: “I * * * do hereby certify that the records of the State Land Office show that the following described lands which were sold to the State of Louisiana for the years enumerated, or assessments in the names of the parties stated, have been transferred to the Atchafalaya Basin Levee Board under the provisions of Act 97 of 1890.”, the description of the lands, including the lands herein in dispute. This is the only instrument affecting this land signed by either the register or auditor which could be found in the records of the register, the auditor, the Levee Board of the Clerk of the Court of Terrebonne Parish.
In 1904, Mrs. Engman transferred her right, title and interest in the lands to the Burguieres Company, Ltd., and on June 26, 1914, that company transferred the property to defendant. On or about 1903 or 1904, Mrs. Engman went into actual physical possession. This possession has been continuous in her and her vendees since. The Dulac Cypress Company, assessed and paid the taxes on the property for the years 1927 to 1938, and it did cut and remove certain timber from the lands in dispute. The State has taken no act to dispossess the Company nor to proceed against it for trespass.
Cf. Blevins v. Sun Oil Co., 5 Cir., 110 F.2d 566.
Elk Garden, etc., Co. v. Gerstell, 95 W.Va. 471, 121 S.E. 569; 570, 33 A.L.R. 298.
Merren v. Commissioner of Internal Revenue, 5 Cir., 51 F.2d 44; Commissioner of Internal Revenue v. King, 5 Cir., 69 F.2d 639, 640; Wrightsman v. Commissioner of Internal Revenue, 5 Cir., 111 F.2d 227; Welder v. Lambert, 91 Tex. 510, 522, 44 S.W. 281; Manchaca v. Field, 62 Tex. 135; 23 Texas Jur. Secs. 47-112.
Dissenting Opinion
(dissenting).
I think the defendants below showed title by prescription good against plaintiffs’ title.
By Louisiana Civil Code, Art. 3478: “He who acquires an immovable in good faith and by just title prescribes for it in ten years.” Defendants’ title here was through a deed executed in 1900 from the Levee Board for value and in good faith, duly recorded in 1912, and with possession ever since. It is not denied that this is just title under this Article. By Article 3499: “The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.” By Article 3521: “Prescription runs against all persons, unless they are included in some exception established by law.” No exception applicable to plaintiffs is set up. The Louisiana Constitution however, Art. XIX, Sec. 16, excepts the State. The title by prescription is original, independent of the record title, and unaffected by incumbrances or limitations on the latter. 2 C.J.S., Adverse Possession, §§ 200, 201, 202. This land has been assessed for taxes by the State against defendants and they have paid the taxes since 1927. These defendants as owners could have redeemed the land from any tax sale to the State had they known one was outstanding. Bentley v. Cavallier, 121 La. 60, 46 So. 101.
The plaintiffs’ title is confessedly overridden by the prescription unless helped by the tax sale to the State in 1895, redeemed in 1938. The effect of the redemption was not to get a fresh title from the State, but only to remove the State’s claims from the title, to cancel them, to restore the taxpayer to his rights. He received not a conveyance from the State but a certificate of redemption. 4 Cooley on Taxation, 4th Ed., Sec. 1577. 61 C.J. Taxation, § 1788. All the incumbrances and limitations incident to his title are revived. It is plain that the title held by the State before redemption is, under Louisiana decisions, not absolute, but for the security of the taxes, and subject to the right of redemption. Moore v. Boagni, 111 La. 490, 35 So. 716, on rehearing; Charbonnet v. Forschler, 138 La. 279, 70 So. 224; Gamet’s Estate v. Lindner, 159 La. 658, 663, 106 So. 22; Sitges v. St. Bernard Syndicate, 169 La. 674, 125 So. 850; State ex rel. Tulane Homestead Ass’n v. Montgomery, Tax Collector, 185 La. 777, 788, 171 So. 28. The State may cut off the right of redemption, which is absolute for only a year, by disposing of the property, but it has always been recognized as existing until such disposition is made, Charbonnet v. Forschler, supra; and was in 1912 so státed in a statute. Act No. 41 of 1912. Under that statute, until the State conveys away the title, the owner has the legal right to redeem, and his own dispositions of the land may be enforced: Lomel Realty Corporation v. Chopin, 177 La. 474, 148 So. 683. The State’s rights were protected from pre
Rehearing
On Rehearing.
Neither of the judges who concurred in the opinion desiring a rehearing, it is ordered that the motions for same be denied.