71 So. 773 | La. | 1916
This is a proceeding by mandamus to cancel from the conveyance records of the parish of Orleans certain documents which the defendant company claims as muniments of title to a certain tract of land fronting on Gentilly Road. The documents include an auditor’s deed, a sale for city taxes, a judgment of the civil district court,
Tbe defendant company excepted to the petition and proceedings on the ground:
“That there is no law authorizing the cancellation of title to real estate from conveyance records by rule, summary process, or mandamus.”
The exception was in terms overruled, but the judgment only ordered the cancellation of the affidavit. The defendant company has appealed.
AVe quote from brief of counsel for relator and appellee:
“The cancellation of said registry is sought on the ground, as alleged:
. “That said affidavit is false in every respect and is a fraud attempted to be perpetrated on your petitioner (the New Orleans Land Company) as owner of the Morgan tract, described in the deed hereto annexed wherein P. H. Morgan sells to the New Orleans Land Company.”
The legal contention of the relator is that an affidavit is not and cannot be considered as a title to real estate, and that the truth or falsity of the contents of a recorded affidavit relating to real estate may be inquired into and adjudged-in a mandamus proceeding.
In the affidavit signed by Sims and wife, it is stated that he purchased the property by notarial act in December, 1864, and had been in undisturbed possession of the same to the date of the affidavit, August 1, 1913; that the property was sold to the state for delinquent taxes “during the year 1880 to 1885,” and was conveyed by the state through mesne conveyances to the Nylka Land Company, and forms a part of the property conveyed by certain judgments of the civil district court.
Sims and wife further declared that “the purpose of the affidavit and quitclaim is to place in authentic form the facts as enumerated herein,” which vested possession and ownership of the tract in said company, “which affiants declare to be the true and lawful owner of said property, and which they now hold for said company.”
The affidavit contains a formal recognition of, and acquiescence in, the tax title of the defendant company, by the former owners of the property, and a formal declaration by the affiants that they held possession of the property for said company. If Sims and wife were the former owners of the tract of land, their affidavit amounts to a ratification of the tax sale, and of the title and possession of the defendant company.
The relinquishment of title by Sims and wife had the legal effect of an estoppel against the subsequent assertion by them, their heirs and assigns, of any right, title, and interest in the property. Williams v. Drew, 47 La. Ann. 1622, 18 South. 623. The common-law doctrine has been thus expressed :.
“One who, by his renunciation or disclaimer of a right or title, has induced another to believe and act thereon, is estopped afterward to assert such right or title.” 16 Cyc. 757.
' The affidavit presents the much stronger case of the recognition of legal title in, and surrender of possession to, the Nylka Land Company.
The affidavit, in the form of a notarial act, was properly recorded, as it related to and affected title to real estate, and its registry was necessary to protect rights therein of the Nylka Land Company, as unrecorded instruments relating to real estate do not affect third persons.
The case of Raymond v. Villere, 42 La. Ann. 488, 7 South. 900, is fatal to the contention of. the relator that mandamus is a proper proceeding to cancel inscriptions on the conveyance books. In that case the court held that parties in whose favor such inscriptions exist cannot be forced to appear as defendants in mandamus suits to litigate their rights of ownership.
AVe approve and reaffirm this doctrine.
It is therefore ordered that the judgment
