61 So. 409 | La. | 1912
Lead Opinion
This is a petitory action to recover lots Nos. 8, 17, 4, 5, 1, 2, 15, 16, 20, and 21, in Elkinsburg, near the margin of Lake Pontchartrain on the south side of Bayou St. John, as per plan of L. Bringier, Surveyor General, made in the year 1831.
In the year 1882, the said lots, except lot 3, stood on the conveyance records of the parish of Orleans as belonging to the following named persons, to wit:
Lots 4 and 5 to Pierre Blanchard.
Lot 17 to Joseph Cockyane.
Lots 1, 2, 15, 16, 20, and 21 to Mrs. Mary Lowery Rankin.
There were no squares in the original plan of Elkinsburg, but an official map of the city of New Orleans was made in the year 1859, which located lot 1 in square No. 1607, lots 2, 3, 4, and 5 in square No. 1608, and lots 15, 16, 17, 20, and 21 in square No. 1605. A part of an adjoining body of land known as the Genois tract, which had never been subdivided into lots and squares, was designated as squares Nos. 1582 and 1583.
In 1882 and 1883, the above-described lots in Elkinsburg were placed on the assessment rolls of the parish of Orleans, in the names of their supposed owners, and as in squares Nos. 1582, 1583, 1605, 1606, 1607, 1608, bounded by Mexico, Genois, Passage, First, Fish, Lake, and Esplanade streets.
The taxes on the lots were not paid, and in 1885 lots bearing the same numbers were adjudicated to the state in four separate tax sales, and were described in the tax collect- or’s deeds as follows:
(1) “Certain lots of ground and improvements thereon in the Third district of the city of New Orleans, in squares Nos. 1582 and 1583, bounded by Genois, Mexico, Passage, Lake and Esplanade streets; said lots front on Genois street; which property was duly and legally assessed for in 1882 and advertised in the. name of L„ Rankin.”
(2) “One certain lot of ground and improvements thereon in the Third district of the city of New Orleans, designated as lot 17, in square No. 1582, bounded by Mexico, Genois, Lake and Esplanade streets; said lot No. 17 measures -front on Mexico street; which said property-was duly and legally assessed in 1882 and advertised in the name of Jos. Cockyane.”
(3) “A certain lot of ground and improvements thereon in the Third district of the city of New Orleans, designated as lot No. 3, in square No. 1582 et al., bounded by Mexico, Genois, Passage. Lake and Esplanade streets; said lot No. 3 fronts pn Mexico street; which said property was duly and legally assessed for 1883 and advertised in the name of Jos. Nixon.”'
(4) “Two certain lots of ground and the improvements thereon in the Third district of the city of New Orleans, designated as lots Nos. 4 and 5 in square No. 1582 et al., bounded by Genois, Mexico, Passage, Lake and Esplanade streets; which property was duly and legally assessed for 1883 and advertised in the name of Piex’re Blanchard.”
On May 14, 1908, these lots as above described were sold by the State Auditor to' Willis J. Roussel.
In August, 1908, the said Roussel filed suit in the civil district court against all the former owners to confirm and quiet the tax sales aforesaid, and obtained the appointment of a curator ad hoe to represent all the defendants. The said Roussel in his petition described said lots as they had been described in deeds from Harvey Elkins, made in 1831.
The curator answered, first, by a denial of' all and singular the allegations contained in the petition. Further answering, the curator averred that Jos. Nixon never was the owner of the property described in the petition, but it was John Nixon who purchased the property from Harvey Elkins in 1831, and that therefore the sale by the tax collector of the said property while assessed in the name of
After a delay of six months, the case was tried, ¿nd judgment was rendered in favor of the plaintiff confirming and quieting his tax titles to the lots as described in his petition, and recognizing Mm, as the owner of the property.
The notes of evidence show that the plaintiff offered the respective titles of John Nixon, Joseph Cockyane, Pierre Blanchard, and Mrs. Mary L. Rankin, to the lots described in the petition, together with copies of assessment rolls for 1882 and 1883, tax sales to the state and Auditor’s sales to the plaintiff. The curator objected to the admissibility of said titles and acts of sale on the ground of variance and repugnancy between the descriptions and the allegations. The objections were overruled by' the, court as going to the effect. The plaintiff proved by a witness who had examined the conveyance . records that the defendants .owned no other property in Elkinsburg except the lots described in the petition. No appeal was taken from the judgment.
The suit was instituted under Act No. 101 of 1898 to provide a manner of notice and form of proceeding to quiet tax titles in accordance with article 233 of the Constitution of 1898, against “the former proprietors of the property,” who were properly joined in one suit as defendants, as provided in section 2 of the same act. Plaintiff proceeded under section 3 of this act to confirm his tax titles alleged to have been quieted by the prescription of three years, as set out in article 233 of the Constitution.
The defendant, the Railways Realty Company, for answer, after pleading the general issue, admitted possession, but specially denied the alleged title of the plaintiff to the property described in the petition, and pleaded the prescription acquirendi causa of 10 and 30 years.
For further answer, the defendant averred that it purchased the property in question on May 24, 1909, from the receiver of the New Orleans, Spanish Fort & Lake Railroad Company, acting under an order of the civil district court for the parish of Orleans, and that the New Orleans Terminal Company, sole creditor and sole stockholder of said railroad company, intervened in the act of sale and warranted the title to said property.
The defendant called the said two companies in warranty to defend the suit, and, in the event of eviction, prayed for judgment over against them.
The warrantors filed an answer, the material averments of which may be summarized as follows:
On May 24, 1909, the conveyance to defendant was made as set forth in the answer. The sale included the property known as the “Spanish Fort Hotel and Park,” acquired by the railroad company, partly by purchase from Vincent Micas in 1879, and partly by the prescription of 30 years. The sale included the lots claimed by the plaintiff, most of which were swallowed up by Lake Pontchartrain more than 30 years ago. If any of the lots, or any part thereof, still exist, the defendant and warrantors admit possession and claim title thereto, and plead in bar of plaintiffs’ demand the prescription of 10 and 30 years. That the triangle of ground included in the plan of Elkinsburg was on August 1,. 1771, granted by the Spanish government to Jean Lavergne. That under an act of Congress, approved March 3, 1819, authorizing the sale of abandoned military reservations, Louis Cass, then Secretary
Pierre Blanchard, lots 4 and 5.
Joseph Cockyane, lot 17.
Mrs. Mary Lowery Rankin, lots 1, 2, 15, 16, 20, 21.
Lots 3, 8, and 30 purchased by John Nixon were retransferred to Harvey Elkins; -and the title to lot 3 finally vested in Millaudon.
Harvey Elkins in 1830 sold the Spanish Fort site proper to Thomas Dixon and others, and defendant derives its title from Dixon et al. through a chain of mesne conveyances.
Lavergne’s heirs, in 1841, recovered, in a suit against the Elkins’ heirs, judgment for the whole tract known as Elkinsburg. See 17 La. 720. In that case the Lavergne grant of 1771 was declared valid by the Supreme Court of this state.
According to the official map of the city of New- Orleans, made in 1859, lot No. 1 of the plan of Elkinsburg falls in square No. 1607, bounded by First street, Fish street, Lake Pontchartrain, and Bayou St. John; lots 2, 3, 4, and 5 of Elkinsburg fall in square* No. 1608, bounded by First street, Second (or Esplanade) street, Fish street, and Lake Pontchartrain; and lots 15, 16, 17, 20, and 21 of the plan of Elkinsburg fall in square No. 1605, bounded by First street, Second (or Esplanade) street and Genois street.
The Spanish Fort site properly is'composed of the whole of squares Nos. 1606 and 1607.
After setting forth the descriptions of the property adjudicated to the state of Louisiana as shown by the four tax sales, the warrantors aver as follows:
“It thus appears that the description of all said property, as made in said sales and said deeds, was absolutely and radically null and void, as none of the lots belonging to the persons named were in squares 1582 and 1583, none of them were fronted on either Genois or Mexico streets, and the bounds even as given of squares 1582 and 1583 are impossible.”
The warrantors assailed the judgment quieting the tax titles of the plaintiff as procured by fraudulent representations and concealment of facts, and on the further ground that it was beyond the power of the court to render any judgment except to confirm the tax sale as made to the state in 1885.
Warrantors further aver that the Auditor’s deeds to said lots were absolutely null and void because, after the adjudication to the state, the lots were not advertised and offered for sale as. required by law.
The cause was tried in the civil district court, and judgment was rendered in favor of the defendants.
The plaintiff’s appealed to the Court of Appeal, which reversed the judgment below and rendered a -decree recognizing plaintiffs as owners of the lots described in the petition. The case is before us on a writ of review.
The suit to quiet the tax titles was brought pursuant to the provisions of Act No. 101 of 1898, against the former proprietors of the property. The act requires that such a suit be instituted “by petition and citation as in ordinary- actions,” and provides that “the petition and citation shall be served as in ordinary suits,” and that if the former proprietor be a nonresident, or be unknown, a curator ad hoc shall be appointed to represent him. There is no provision in the statute for notice to third persons by advertisement or otherwise.
The judgment in such a suit quiets and confirms the tax title as shown by the recorded tax deed. Where the defendant is represented by a curator ad hoc, such judgment is restricted to the validity vel non of the tax sale as made. Folger v. St. Paul, 130 La. 1082, 58 South. 890.
Article 233 of the Constitution of 1898 provides that:
“The manner of notice and form of proceedings to quiet tax titles shall be provided by law.”
The same article provides that:
“All deeds of sale made, or that may be made, by collectors of taxes, shall be received by courts in evidence as prima facie valid sales”
—and that no sale of property for taxes shall be set aside except on proof of dual assessment, or of payment of taxes, unless the proceeding to annul be instituted with certain delays. Hence the tax titles referred to in the Constitution are those evidenced by deeds of sale made by collectors of taxes; and the Act No. 101 of 1898 provides for quieting and confirming of tax titles as shown by recorded tax deeds. A judgment pursuant to the statute does not vest in the purchaser at tax sale any new title from the former proprietor, but merely concludes the latter from instituting any proceeding to annul the tax sale, as made, or from questioning its validity in any judicial proceeding.
We think that the Court of Appeal erred in holding that the defendants in this case were concluded by the judgment quieting the tax title of the defendants.
The state of Louisiana was the vendor of the plaintiffs, and the state was no party to the suit to quiet the tax titles. The evidence shows that the Auditor refused to change or correct the descriptions of the property conveyed by him to the plaintiffs.
The case falls within the doctrine announced in Albert Hanson Lumber Co. v. Angelloz, 118 La. 862, 43 South. 529, to the effect that a deed describing a different tract of land from the one in controversy is not translative of the land in controversy; and, if'the description be subject to correction, the deed does not become translative of property until the correction is made according to law. In Bonvillain v. Bodenheimer, 117 La. 793, 42 South. 273, this court held that a latent misdescription in a deed forming a link in a chain of title cannot be corrected, where the vendor in such conveyance has not been made a party to the suit. We cannot see how the alleged misdescription in the Auditor’s deed can be corrected in any suit to which the state is not a party. Under the theory of plaintiff’s case the state acquired a good title to the property in 1885, and conveyed the same to them in 1908.
It is therefore ordered that the judgment of the Court of Appeal in this case be annulled, avoided, and reversed, and that the judgment of the district court be affirmed; costs of appeal to be paid by the appellants.
Rehearing
On Rehearing.
The primordial title dates back to the days of the Spanish Colonies. The land in dispute is situated near Spanish Fort. The first grantee was Jean Lavergne (under a Spanish grant), who died in the year 1823, leaving children who resided at a distance from this city. They knew very little of the property and gave it no concern. The government went into possession of the property and built a fort, which it afterward abandoned.
The property, after it had been abandoned by the government, was granted by the United States government to Harvey Elkins.
The heirs of Lavergne brought suit on their grant in the early forties, and recovered the property from the heirs of the late Harvey Elkins, grantee of the government. The Lavergne heirs, it was decided, had complete title to the land over which the United States government had erroneously sought to exercise dominion.
At first, the land measured only 120 feet in one direction and 80 feet in another. Surveyors surveyed it under the title and extended the dimensions, which have not been questioned since, although, we take it, not included in the grant.
The suit of the Lavergne Heirs v. Elkins’ Heirs is reported in 17 La. 221. The decision in that case was for plaintiff.
In the years 1882 and 1883, the property was assessed in the name of L. Rankin, P. L. Blanchard, Joseph Cockyane, and John Nixon. They were the record owners at that time and remained owners for a number of years.
Whether the original grantee was Elkins or Lavergne is of no moment — it belonged to the persons just above mentioned. It was decided in the opinion heretofore handed down to whom the land belonged when it was assessed. That question is now at rest, i. e., that the persons just above named were the owners.
The facts are correctly stated in our opinion heretofore handed down. They have the
In Vannetta v. Busbey, 131 La. 681, 60 South. 76, the sections in which the land was situated were diffei'ent. The description in the deed was different from the description of the property in possession of the purchaser, and yet the court held that the description was sufficient.
The most serious objection to defendants’ claim is that the land does not belong to defendants; that they have no title.
We will copy freely from the testimony of witnesses for the defendants, as it has an important bearing upon this point. . It shows that the defendants had no title.
One of the witnesses, a distinguished member of the bar, was quite familiar with these titles and with the facts connected with the property. He states:
“The object of building this fence was this (referring to a fence which was put up on the property in the -year 1907): When I examined the title to the property in 1896, I discovered that there was no title to anything except the old Spanish Fort property, as shown by the Gelles’ plan, eceeept by possession." (Italics ours.)
The Spanish Fort property Mel not include the property in contest. The title to the Fort property did not include the lands which were sold at tax sale as before stated. We think it is a well-settled fact.
Another witness, who was the president and organizer of the New Orleans, Spanish Fort & Lake Railway Company, testified:
“That, as a matter of fact, he did not at any time claim any property west of First and Lake street.”
The whole of his testimony, which is lengthy, shows that he, while president of the company, never considered the property claimed by plaintiffs as belonging to the company, nor did he consider it as being in possession of defendant’s author in title.
Two other witnesses have testified to the same effect.
The third witness, Mr. Robert C. Cage, a watchman employed by the New Orleans Spanish Fort & Lake Railway Company, testified that he never saw a fence on the place before the fence placed thereon in the year 1907. He never saw any one in possession of the property anterior to that time.
There was never a continuous, uninterrupted possession. Revised Civil Code, art. 3500.
There has been no possession by the defendant of the land in contest. Finding no title in defendant, it does not occur to us that the defendant is in a position to successfully urge that plaintiff had no title; that the act under which the plaintiff holds is not legal.
The defendant has no right to this property unless title is produced.
Squares 1582 and 1583, mentioned as squares in which the land is situated, afford no ground for defense. Whatever error there may have been in inserting these squares in the assessment can be of no avail. The description was sufficient to identify the property, and the question to which this description gives rise is to be judged in the light of the following decisions: Shelly v. Friedrichs, 117 La. 679, 42 South. 218; Doyle v. Negrotto, 124 La. 100, 49 South. 992; Weber v. Martinez, 125 La. 663, 51 South. 679. In re Perrault’s Estate, 128 La. 453, 54 South. 939, is particularly pertinent. Moreover, we have already stated that the judgment obtained against the former owners represented by a curator ad hoc corrected the error.
Besides, if it is, as the late Mr. Pilie testified, it is hardly possible to hold that 1582 and 1583, existing only on the plan, have the effect of confusing descriptions to the extent of giving grounds for annulling title at this time. Spanish Fort proper at one time may have been thought to embrace land which was really not within its limits. There may have been irregular and indefinite possession exercised, without anything showing the date it commenced. The owner of Spanish Fort owned the Micas title, but that did not embrace the land in question, and the possession claimed beyond the line of Spanish Fort is not sufficiently proven to hold that the owners of Spanish Fort had become by possession the owners of the land now in controversy.
For reasons stated, it is ordered, adjudged, and decreed that our judgment heretofore handed down is avoided, annulled, and reversed. It is now ordered, adjudged, and decreed that the judgment of the Court of Appeal is affirmed. It is further ordered, adjudged, and decreed that defendants pay the costs of this court, Court of Appeal, and of the district court.
Addendum to Chiee Justice Bbeaux’s Opinion.
rendered the opinion and decree of the court as follows:
In their brief for rehearing counsel says:
“One fact found by the court is not, in our opinion, borne out by the record. * * * There was no interruption in whatever possession it [the Spanish Fort Company] acquired in 187.8 up to the time of defendant’s acquisition (1909). It is true that its charter expired in 1903, and Mr. R. B. Fowler became its receiver, and it was in his capacity as receiver that he-placed the watchman on the property, and upon*396 discontinuing the watchman, as testified to by Mr. Farrar, erected the fence upon the old line.”
As we read the record, the last officers of the Spanish Fort Company (nominally still in office as late as 1908) were a president, who had left the state, and a secretary, who was no longer active. In the receivership proceedings he is termed “late secretary.”
No receiver was appointed to that company until June, 1908. And when the watchman was displaced and the fence erected in 1907 it was done, not by a receiver or officer of the Spanish Fort Company, but by the general manager of the New Orleans Terminal Company, and the only connection between that company and the Spanish Fort Company was that the former owned all the stock and all the bonds of the latter.
But this did not make the two companies one, or give the general manager of one company any authority to act for the other. In the case of Ferdinand Illg v. Stephen Brulard, Executor, decided by this court February 20, 1912 (No. 5,498 of our docket), we said:
“The fact that one person owns all the stock in a corporation does not destroy the corporation, or make him and the corporation one and the same person; but the latter continues to exist as a separate entity, and the former continues to occupy the status of a stockholder.”
As to the right of defendant to set up the alleged nullity of the judgment of confirmation (on the ground of fraud), that was in effect conceded for the purposes of this case, by the very fact that the court proceeded to examine and pass upon the alleged grounds of nullity. We merely refrained from declaring any general doctrine on a point which appeared to us as not being free from doubt.
But we held, and we still hold, that the correctness as distinguished from the validity, of a judgment of confirmation, obtained contradictorily with the true owner of the property is not open to investigation by any third person whomsoever. And the authorities cited by defendant hold nothing to the contrary.
In all these cases the right of third persons to challenge collaterally the validity of a judgment, not the correctness thereof, was upheld. And the distinction is obvious: If the judgment be null, there is then no judgment at all. On the other hand, if the judgment be valid, third persons hare no interest whatsoever in the correctness thereof.
In the case at bar, if the judgment of confirmation be binding on the former owners of the property, the defendant in this case has no more concern in the grounds upon which that judgment was based, or interest in the subject-matter thereof, than if the former owners had themselves conveyed the property to plaintiff by deed.
For that judgment itself, regardless of what foundation or lack of foundation it may have to rest upon, is a title translative of the property, having therefore all the force and effect of a conveyance between the parties thereto.
Such is the doctrine of the French Court of Cassation, as announced in two decisions of that eminent tribunal. See Veuve Mailly v. Commune d’Auneuil, February 21, 1827, reported in Dalloz, Jurisprudence du Royaume, Vol. 1833, part 1, page 301; and Commune d’Arbigny v. D’Arbigny, July 14, 1835, reported in Dalloz, Jurisprudence, etc., Vol. 1835, part 1, pages 326, 327.
In those two cases that high court distinctly held that a judgment awarding property to a plaintiff in an action had contradictorily with an apparent owner is a “just title;” i. e., a title translative of the property.
Our own Supreme Court has gone even further, citing twice with approval the doctrine of Toullier, that a judgment for the thing, obtained contradictorily with the apparent owner, is res judicata against the true owner.
From all of which it follows, as a matter of course and a fortiori, that a valid judgment against the true owner passes the title absolutely to the successful litigant, and is res judicata against all the world, regardless of the grounds or lack of grounds' on which it is based.
And this is particularly true of a judgment confirming a tax title. It is historically well known, and abundantly appears in our jurisprudence, that before the Constitution of 189S the status of tax titles in this state was such as can only be described as chaotic.
As a consequence of such conditions, tax sales were shunned, and property held by tax deed was a drug upon the market For want of bidders at the tax offerings, an immense amount of valuable property had to be taken over for taxes by the state, which had no use for it, and could not administer it, and could not get rid of it, or restore it to the tax rolls, except by giving it away, as it were. The almost uniform price for property sold, even under Act No. 82 of 1884, the so-called “Iron Clad Law,” was “one dollar,” a price which, under the Code, mean's a gift. C. C. art. 2464.
With full knowledge of these conditions, and endeavoring to correct them, the convention of 1898 directed the Legislature to provide “a form of proceeding to quiet tax titles.” Const, art. 233.
Pursuant to that constitutional mandate, the Legislature, at its first session thereafter, passed Act No. 101 of 1898, providing for the proceeding known as the action to confirm a tax title, which action was to be brought against “the former proprietor of the property,” and was to result in a judgment of the court “quieting and confirming the title.”
If the result of this constitutional mandate, and the Legislature intended to carry it into effect, be no more than to quiet and confirm tax titles as to the former owners only, divesting these of their property, indeed, but leaving the title still open to attack by all others, then vain, indeed, was the work of convention and Legislature, and futile all their efforts, which have resulted only in ousting one title, without “quieting or confirming” in any sense another, thus making confusion all the more confounded.
“Interest reipublicse ut sit finis litium” is the maxim and policy of the law; and both convention and Legislature intended that proceedings to “quiet and confirm tax titles” should be such in fact as well as in name.
That legislative purpose, which to us seems clear, is the guide by which we must go; and we have no hesitation "whatever' in holding that a judgment confirming a tax title, rendered contradictorily with the former owners of the property, is binding on all the world.
The statute violates no constitutional provision. Under it no man can be deprived of his property without due process of law, for the owner must be cited; but those who are mere possessors, with prescription running in their favor, but not completed, have no vested rights in the property (Oalvit v. Mulhollan, 12 Rob. 266-272), and are not necessary parties to the action for confirmation of title. The subsequent sale of the property to defendant affected in no manner the status of the confirmation proceeding, then already perfected, and gave to defendant only what its authors themselves then had, to wit, only an inchoate, contingent, or expectant right to complete a title by prescription, if not disturbed.
. The authorities cited, as to a defendant in possession under title, are not applicable.
We stated at the outset of our opinion that plaintiff must recover on the strength of his own title, and it is our conclusion that from the time of the confirmation his title was and is good against the world.
As to the claim that lot No. 1 of square
As to defendant’s call in warranty, we have not noticed it, because this court is powerless to deal with it in this appeal. Under the jurisprudence, a judgment cannot be amended between coappellees.
We venture the suggestion, however, that defendant is not without a remedy, if pursued in time.
Rehearing refused.