79 So. 515 | La. | 1918
The board of directors of the public schools of the parish of Orleans brought suit against the defendant company to recover fractional section 16, township 12, range 11 east, as belonging to the public schools of said parish, and obtained judgment in the trial court and in this court; but, on application for a rehearing, the judgments were set aside, for the reason that it was found that the proper authority for standing in judgment as plaintiff in the suit was the state, and not the school board. Board of Directors of Public Schools of Parish of Orleans v. New Orleans Land Co., 138 La. 32, 70 South. 27. The present suit is a renewal of that suit, and has been brought by authority conferred by Act 158, p. 237, of 1910, in the interest of the public schools of the parishes of Orleans and Jefferson.
We are ashed by defendant to consider again the points involved, and will do so.
The answer contains the following allegation:
“That a small portion of the property claimed in this case was acquired from Bernard May-lie, who acquired same at a tax sale for delinquent taxes assessed to the Milne Asylum for Destitute Orphan Girls, which tax sale was made more than three years before the institution of this suit, and for more than three years defendant has been in possession of the property as owner and has been paying taxes thereon.”
The portion thus said to have been acquired is not further described than is here stated,
Defendant claims to have title under a grant made by the French or Spanish government in colonial days; and, in the event this title is not recognized, and the land is held to have belonged to the state of Louisiana, or to the public schools, then, under an adjudication made to its author in title at a receiver’s sale in the suit of J. W. Peake v. City of New Orleans; and if not by virtue of the foregoing, then by prescription of 30 and 10 years; and claims, finally, that, at all events, the land cannot possibly belong to the schools, because the section and the township are both fractional, and hence that the suit must be dismissed, since the action, being petitory, comes under the principle that the plaintiff in a petitory action must recover on the strength of his own title and not on the weakness of that of his adversary.' Defendant also pleads estoppel.
The title by colonial grant we shall come to later. We take up now the question of whether the title of the state, individually or as trustee for the schools, was transferred to plaintiff’s author in title by the adjudication at the receiver’s sale in the suit of J. W. Peake v. City of New Orleans.
This point has already been decided against defendant in the cases of Leader Realty Co. v. Lakeview Land Co., 133 La. 646, 63 South. 253; Board of Directors v. New Orleans Land Co., 138 La. 32, 70 South. 27; Leader Realty Co. v. New Orleans Land Co., 142 La. 169, 76 South. 601.
If she had any, it was derived through a sale made by the Milne Asylum for Destitute Orphan Girls to the board of commissioner's of the drainage district created by Act 165, p. 114, of 1858; and under Act 30, p. 75, of 1871, transferring to the city, as trustee, all the real estate the said board might have title to. The asylum could, of course, transfer only such title as it had, and as to what title it had will be shown when we come to consider the alleged colonial grant.
i[5] A vague argument is made that this land, even though belonging to the state or to the schools, was liable to the drainage assessment under said act; and that therefore the title of tbe said drainage board to it was good. And, in support of tbis, tbe decision in New Orleans v. Warner, 175 U. S. 120, 20 Sup. Ct. 44, 44 L. Ed. 96, is cited, where, speaking of the said act of 1858 and its several amendments, the Supreme Court of the United States said:
“There is nothing in the several statutes of Louisiana upon the subject which indicates that private property only was intended to be affected. It is true that by the act of 1858, par. 7, the district court is empowered to decree that each portion of the property situated within the drainage limits is subject to a first mortgage, lien and privilege in favor of the board of commissioners for such amount as should be assessed upon such property for its proportion of the cost of the draining; and that this was obviously intended not to apply to public property.”
The said act of 1858 did not authorize a proceeding in personam for enforcement of payment of the drainage assessment which it authorized to be levied, but only a proceeding in rein, without other citation than newspaper publication — very much after the manner in which tbe payment of state taxes is enforced. It is hardly possible that, by such a proceeding, the streets and public places of the city of Npw Orleans could have been seized and sold as private property. It may be doubtful, therefore, and we say it with all due deference, whether property of that kind was intended to be subjected to said local contribution. But however the case might stand as to that kind of property, we are very clear that the state’s property and tbe property held by the state as trustee for the schools was not intended to be embraced in said act; for it is very evident, from the reading as a whole, that the state did not contemplate that she should be one of th'e “owners” of property to be proceeded against in the summary method provided for in said act; and it is very evident that the ¡1>S1,000 appropriation made by the state in said act towards the expense of said drainage was with a view to an equitable contribution by the state because of whatever state property might be situated within the area to be drained.
The Siipreme Court of the United States in this Warner Case, even though holding that the city’s property was within the act, was of opinion that obviously the city’s property was not to be affected by any mortgage, lien, or privilege, or, in other words, was not to be liable to be seized and sold. Now, if this was true of the city’s property, how much truer was it of th'e state’s property, or of the property of the schools held in trust by the state. This state property, could not have been seized and sold under said act of 1858, and still less could it be transferred by the asylum or by any other stranger to the title. ;
Passing to defendant’s plea of estoppel, we note that the reason urged in the brief why the state should be held to be estopped is different from that pleaded in the answer. In the answer it is that the drainage board was an agency of the state, and that therefore its acts, in acquiring this property from the Milne Asylum for Destitute Orphan Girls and transferring it to the city of New Orleans, are binding upon the state. In the brief, the argument is that Milne having by his testament bequeathed this and other lands to the Milne Asylum for Destitute Orphan Girls, and the state having by special acts (Acts 3 and 4 of 1839) chartered this asylum and authorized it to accept said bequest, recognized and ratified thereby Milne’s, or the asylum’s, title to this land; and, again, that the state, having by special act (Act 30 of 1871) directed the drainage board to transfer all its paraphernalia and belongings to the city of New Orleans to be held by the city in trust for the purpose of continuing the drainage work through the instrumentality of the Mississippi & Gulf Ship Canal Company, recognized and ratified thereby the title of the drainage board to this land which the board had acquired by private dation en paiement from the asylum in satisfaction of the asylum’s debt for the drainage assessment upon this and its other lands.
“The act of confirmation or ratification of an obligation, against which the law admits the action of nullity or rescission, is valid only when it contains the substance of that obligation, the mention of the motive of the action of rescission, and the intention of supplying the defect upon which that action is founded.”
We pass now to the consideration of the colonial grant.
In a deed executed before Andres Almonester, notary public, on July 3, 1773, Carlos Terrascon sells to Andres Jung the following:
“A plantation situated one league from this city on Bayou St. John, composed of eight arpents of ground on the front with the ordinary depth of forty, bounded on one side by another plantation of C. Bartholome and on the other side by another plantation belonging to Don Antonio Maxent.”
This act contains the following declaration:
“The same is held by me by concession made to me by Mr. Aubry, French Governor, at the time of his domination, before Stan. Foucault, Commissary, as appears in the titles that he delivered to the purchaser.”
And the purchaser declared:
“I accept in my favor this instrument and through it, as purchaser, the eight arpents of ground referred to, which are delivered to me to my satisfaction, but I renounce the proofs and laws of its delivery, that of the house not seen nor received, and all of such that I might give a receipt in form for.”
Aubry was acting governor of the province of Louisiana from the death of D’Abadie in 1763 to the taking possession of the province by O’Rielly for Spain in 1769.
On March 8, 1774, the year following the sale by Carlos Terrascon to Don Andres Jung, the latter executed an act of sale before the same notary selling the same plantation by the same description to Mariana, free woman of color; and this purchaser acknowledged delivery of the plantation “as well as of the house, not seen or received.”
Three years later, May 14, 1777, Mariana sold the same plantation to Naneta, free woman of color, as also “two cows and four calves which are situated on said plantation.”
Five years later, in 1782, Naneta made her notarial will bequeathing her property to her husband Michel Deruisseaux.
Six years later, on May 25,1788, Michel De
.The four arpents thus acquired by them, Profit and the Urquharts subsequently sold to Alexander Milne.
On May 20, 1S04, Michel Deruisseaux sold 2 arpents by 40, bounded on one side by the land,of Profit and Thomas and David Urquhart, and on the other side by his own land to Alexander Milne.
On January 25, 1804, by notarial act, Michel Deruisseaux made his will instituting his wife, Marie Noyant, his universal legatee.
On December 1, 1829, the remaining two arpents front of the original 8 arpents front was adjudicated to one Perry at the succession sale of Marie Noyant, and shortly thereafter Perry sold same to Alexander Milne; thus reuniting the 8 arpents front in the hands of Alexander Milne.
Milne bequeathed the property to the Milne Asylum, then not in existence, but which was subsequently incorporated by special act of the Legislature, as already stated.
The asylum, by private sale, transferred the land to the drainage board in satisfaction of the drainage assessment due by it on this and other lands, as already stated.
The drainage board, in obedience to the said act of the Legislature directing it to transfer to the city of New Orleans, in trust for prosecuting the work of drainage, all its paraphernalia and belongings, transferred this and its other lands in globo to the city; and, as already stated, these lands were sold at á receiver’s sale, in the matter of Peake v. City of New Orleans, and acquired by the defendant’s author in title.
The defendant has been unable to produce either the original or a copy of the document evidencing the grant to Carlos Terraseon; but accounts for the absence of the document itself and of its registry by calling attention to the fact that the records of the registry of the deeds of that time, as well as all archives relating to land grants, were destroyed by fire in 1788, a fact established by a letter of Thomas Jefferson to Congress of date November 3,1803 (Am. State Papers, vol. 1, Miscellaneous, Ed. of Gales and Seaton, p. 351, No. 164 of Lands and Titles), and by the following'statement in Landry v. Martin, 15 La. 9 (decided in 1840):
“The archives of the province were partially destroyed in the conflagration of New Orleans, in 1788, and whatever escaped from the flames was carried-away on the transfer of the province.”
In this same case, the court said:
“After long and continued possession of land, for nearly half a century” (in the case at bar 150 years), “if a written grant were necessary, the testimony of witnesses, after the loss of the archives and titles, will authorize the court to presume it.”
The testimony of witnesses in the instant case is lacking; but its absence is supplied, we think, by the recital in this Terraseon deed, made at a time unsuspicious, and supported by the evidence of the “titles” (either the original document itself or some duly authenticated copy of it) which the deed recites was then and there “delivered^ by the seller to the purchaser.”
As for the possession, the rear part of the land (the part involved in this suit), consisting as it does of swamp, has, of course, never been in any one’s actual possession; but the recitals in the deeds, that what was sold was a plantation, a “habitation,” indicates unmistakably that the front part was actually occupied. There was evidently a house upon the land, and from the description it is evident that the lands on each side were also “plantations.”
Plaintiff contends that Acting Governor Aubry was without authority to make grants of land, and that the Supreme Court of the United States has so held in the case of U. S. v. D’Auterive, 10 How. 609, 13 L. Ed. 560. That is true, but in the later cases of Pillerin et al. v. United States, 13 How. 9, 14 L. Ed. 28, the same court said of like grants:
“In some of these cases evidence has been offered of continued possession by the grantees of those claiming under them, ever since the grants were made. But if there has been such continued possession, and acts of ownership over the land as would lay the foundation for presuming a confirmation by Spain of these grants, or of either of them or of any portion of either of them, such confirmation would amount to an absolute title, and not an inchoate or imperfect one.”
In U. S. v. Chavez, 175 U. S. 509, 20 Sup. Ct. 159, 44 L. Ed. 255, the court said:
“Upon a long and uninterrupted possession of lands in Mexico, beginning long prior to the transfer of the territory in which they are situated to the United States, and continuing after that transfer, the law bases presumptions as sufficient for legal judgment, in favor of the possessor, in the absence of rebutting circumstances, which do not exist in this case.”
In Mitchel v. U. S., 9 Pet. 760, 9 L. Ed. 283, the court said:
“If there could be a doubt that the evidence in the record did not establish the fact of a royal license, or assent to this purchase, as a matter of specific and judicial belief, it would be presumed as a matter of law arising from the facts and circumstances of the case, which are admitted or unquestioned.”
In Strother v. Lucas, 12 Pet. 411, 9 L. Ed. 1137, the court said:
“The unwritten law of Louisiana, before the cession of the territory to the United States, in favor of long possession and ancient appropriation, everything which was done will be presumed to have been rightfully done, and, though it does not appear to have been done, the law will presume that whatever was necessary has been done.”
Under the Spanish law, a possession of 30 years, even unaccompanied by title of any kind, would mature into title. White’s New Recopilation, vol. 2, p. 734.
It was the policy of tire Spanish government not to oust those who had possessed for 10 years even though without title of any kind, but only to require of them, “a moderate retribution.” White’s New Recopilation, vol. 2, p. 239, art. 20.
In Devall v. Choppin, 15 La. 575, this court said:
“It is historically known that the Spanish government never contested the validity of the grants made by the French officers before the Spaniards took possession of the colony; that the conduct of Spain amounts to at least a tacit ratification.”
The said colonial grant and the titles following it extend, however, no further back than 40 arpents from Bayou St. John, and therefore embrace only a part of the land in dispute. As to the remainder, the defendant has no title, and has no standing for contest
We have no apologies to make for having taken a different view of the title of defendant derived through this colonial grant when this case was here before, especially after fuller light has been thrown upon the matter on this second trial. Cases involving these old titles are exceedingly complicated, and perplexing to courts, or nonexperts in such matters, as witness the Supreme Court of the United States saying in the cases of Soulard v. U. S., 4 Pet. 511, 7 L. Ed. 938, involving such a title, that they had kept the case under advisement from the preceding terms, and would again keep it under advisement for another term, for the reason that:
“After bestowing upon them the most deliberate attention, we are unable to form a judgment which would be satisfactory to ourselves, or which ought to satisfy the public.”
The land involved in the case of Leader Realty Co. v. Lakeview Land Co., and Leader Realty Co. v. N. O. Land Co., 142 La. 169, 76 South. 601, lay back of the 40-arpent line, and hence the decision in that case does not conflict on the facts with the present decision. And what was there said touching the colonial grant to Carlos Terrascon was founded entirely upon what had been found by the court in the case of Board of School Directors v. N. O. Land Co., 138 La. 32, 70 South. 27, as to which, as just said, we do not feel that we have any apologies to make. We can only decide cases asi we see them: if upon a retrial they appear to us in a different light, we can but decide them as seen in this different light.
The judgment appealed from is therefore set aside in so far as it embraces any part of the land included within the 4(Larpent line from Bayou St. John, or in so far as it includes any part of the land covered by the colonial grant to Carlos Terrascon and the titles founded on it; and as to that part of the land the suit of plaintiff is dismissed; and the said judgment is otherwise affirmed. The plaintiff to pay the costs of appeal.