10 La. 276 | La. | 1836
delivered the opinion of the court.
This is a petitory action, in which the plaintiff sets up title to a tract of land, of eight arpents front, on the Bayou Teche, with a depth of forty, bounded above by land of B. Graven-berg. The title exhibited by him consists of a confirmation by act of congress, in 1816, of the claim of Patrick Johnson for a tract as above described, á conveyance by Johnson to John Reeves, and the adjudication of the same to the present plaintiff, at the probate sale of John Reeves’s estate. On the township plat, in the land office, this tract is represented as having been laid off and located according to its calls. The plaintiff has therefore shown a title in himself, which would authorize a judgment in his favor, unless the defendant can show either a better title, or one which, however groundless in its origin, has become perfect by prescription.
The defendant claims to be the owner of the same tract of land under the title of Johnson, by purchase from Wilkinson and White, who, he alleges, purchased it at a sale for taxes in 1809, made by the parish judge, as collector of taxes for the county of Attakapas. He also pleads the prescription of ten years under this title.
The defendant, in an amended answer, further alleges, that in 1816 he purchased from Henry Hargroider, as heir at law of Charles Hargroider, six arpents front of land, on the west side of the Bayou Téche, bounded above by laud then belonging to him, and below by lands belonging to the
We will first examiné the title of the defendant, derived from Wilkinson and White, and the alleged prescription based upon it.
The deed from the parish judge of Attalcapas, dated Nov. 24, 1809, recites, that in pursuance of the provisions of the act of 1807, he had that day exposed to public sale, to the lowest bidder, for the territorial taxes due thereon for the years 1807 and 1808, eight acres of land in front, with the usual depth, situated on the Bayou Téché, given in as the property of Patrick Johnson, when H. Gr. White and J. Wilkinson became the purchasers of the whole tract, for the sum of twelve dollars and twenty-three cents, the amount of taxes and costs. He then warrants to the purchasers all the right, title and claim of the said Patrick Johnson to said tract of land.
According to repeated decisions of this court, such a deed, unaccompanied by evidence of the assessment at least, is insufficient to show a valid alienation and that the former owner was divested of title. 6 Martin, N. S., 347. 7 Louisiana Reports, 46.
The vendors of the defendant, according to the evidence before us, acquired nothing by the deed from the parish judge, and could convey no title to the defendant. If, however, they had assumed to sell the land as their own, although without title and without a disclosure of the defect of their title, their vendee, though holding under a sale U non domino, might have based upon it the prescription of ten years. The question then presents itself, whether the sale from Wilkinson and White be such a title as might form the basis of prescription ; whether it did disclose to the defendant a fatal defect in the title of his vendors, and whether such defect be one of form, in the sense of the code, which declares that a title defective in form cannot serve as the basis of the ten years’ prescription.
Wilkinson and White, in their conveyance to the defendant, sell all the right, title, interest and claim in and to the tract
Here the title, by which the defendant’s vendors claim the land, is expressly referred to, and a recurrence to it is necessary, in order to ascertain what kind of claim, title or interest was conveyed, for the interest or title which they acquired may have been only an usufruct, or a lease for a term of years, or other limited estate belonging to Johnson at the time of the sale. The vendors do not assert that they acquired the tract of land, and refer to the title by which they acquired it as existing in a particular plan, as was the case in Fletcher vs. Cavelier, 4 Louisiana Reports, 267 and 274, but they leave the intention of the parties, as to the degree of title sold and conveyed, to be ascertained by reference to a particular sale made for taxes. We think this brings home to the defendant a knowledge of the title under which their vendors assumed to hold.
The next question is, what is the character of this defect ? Is it such a defect of form as vitiates the title considered as the basis of the ten years’ prescription 'l If the parish judge had assumed to sell the land as his own, his want of title would not have destroyed the right of his vendee to prescribe; and we hold, as in the case of Bedford vs. Urquhart, 8 Louisiana Reports, 234 and 241, that where one takes upon himself, as the attorney in fact of another, to sell, and delivers possession, that his deed of sale may form the basis of prescription, because the defect consists in the want of evidence of the mandate, and is not a nullity of form resulting from the legal incapacity of the vendors, and that after a lapse of years the power of attorney would be presumed in favor of the possessor.
The case now before the court differs very materially from that of Carrel’s heirs vs. Cabaret, 7 Martin, 376, much relied ©n in the argument. The action in that case was to set
A title to serve as the basis of the ten years’prescription must be such as is in itself translative of property, and that title has always, by this court, been considered as deficient • e . . . , „ ’ .. , , . ,. in form which does not furnish evidence that all the formalities required by law have been complied with, whenever the vendor acts in a public trust and takes upon himself to sell the property of another. An assessment of the tax, which is written evidence, forms an essential ingredient in the title of a purchaser at a collector’s sale. Can we presume that 1 r there was an assessment of the tax, and that it was regularly demanded, and the sale of the land regularly made ? We have stated that we could not. If so, the maxim applies “de non existeniibus et non apparenlibus eadem est ratio." Errors of law do not form a good foundation for acquiring property. Francaise vs. Delaronde, 8 Martin, 632. The simple certificate of a public officer that he has sold the property of another person is not a title translative of property, and he labors under an error of law who suposes that it is.
But it is contended that a purchaser at á tax sale has a right to presume that all the formalities of law have been complied with. The defect in the title does not consist in the proof that there was no assessment, but in the want of all proof that such assessment existed, because without it the officer was without warrant to sell, as the tutor, without judicial authority, has no capacity to sell the property of his pupil. If such authority cannot, in law, be presumed, at the time of the forced alienation, at what time does' it spring into existence for the purpose of divesting the title of the owner % If such alienation were only voidable, or the nullity resulting from a legal incapacity in a public officer without warrant of law were merely relative, we might perhaps fairly presume, after so long a silence, that he was warranted in his proceedings. But we consider the deed of the tax collector, though it proves rem ipsam, i. e., that he sold, yet, as furnish-. jng n0 evidence of his authority to sell without proof of an ° , , , ... . A . , . assessment, and therefore defective in form.- Considering, as we do, that the defendant has identified himself with his vendors, and taken, upon himself the risk of such title as \ . they may have acquired by the parish judge’s deed or certificate, and that their title was null, we are of opinion that the plea of prescription was properly overruled.
We come now to examine the title set up by the defendant, under a sale from Hargroider, for six arpents front, bounded above by lands of the defendant, and below by Philo Norton. The title of Charles Hargroider does not call for the same land covered by the title of Patrick Johnson. Its true location can only be ascertained by commencing, a series of surveys from below. The claim of B undick, senior, for ten arpents front, calls to commence at an arroyo as its lower boundary. This we'suppose to be the coulée spoken of by the witnesses. Then comes the title of Bundick, junior, for six arpents ; next, that of Henry Hargroider, for ten arpents, afterwards confirmed in the name of Philo Norton’s heirs; and lastly, that of Charles Hargroider, for six arpents front. The land of Charles Hargroider, therefore, according to the
The court below, by its judgment, made an equal division of the 'front, supposed to exist between Gravenberg’s lower line and the upper one of Philo Norton, between the parties. Of this the appellee complains, as an error to his prejudice, and he has prayed a reversal of the judgment in his favor. If the plaintiff was entitled to recover any thing, we are of opinion he is entitled to the whole tract, such as it is described in his title; and as it appears to us that his vendor never was divested of title, and that the plea of prescription will not avail the defendant, the judgment below must be reversed.