108 La. 255 | La. | 1902
The opinion of the court was delivered by
This is a petitory action to recover' a tract of swamp
Defendant impugns said title on the grounds, first, that the Gorlinski certificates had no validity; second, that the location of the land under the certificate was never approved by the Governor, and that without such approval the title remained inchoate, never maturing into .a> perfect title, and did not stand as an obstacle to a subsequent sale of the land by the State; third, that the said title, if otherwise good, was never recorded in the parish of St. John the Baptist where the land is situated, and as a consequence is null and void as to third persons; fourth, that the same land was adjudicated to the State at a sheriff’s sale made in 18J4 under a judgment rendered against Joseph Désert for taxes; and, finally, defendant claims title under a patent issued by the State to W. R. Rutland in 1890.
The first two grounds above set forth have not been settled by the decision of this court in the case of Betz vs. Illinois Central Railroad Co., 52 Ann. 893, as is erroneously supposed by plaintiff’s counsel; a rehearing was granted in that case and thereafter the case never came to trial. But the omission of plaintiff’s counsel to discuss this ground, as well as the omission to discuss the third ground relied on by defendant, is immaterial, as we propose to follow the example of the District and Circuit Courts and rest our decision on the validity of the sheriff’s sale.
We proceed to consider the several grounds of nullity set up against thik sale. They are properly set up in the present form of proceeding. Dawson vs. Hickman, 33 Ann. 438; Telle vs. Fisher, 34 Ann. 1243.
First. That Justice of tihe Peace Courts have no jurisdiction in suits to recover taxes, or 'in land controversies.
The suit involved nothing more than a monied demand. That the judgment had to be satisfied out of the Immovables of the debtor in the absence of movables, did not make the suit a land controversy. C. P. 1144. No reason is assigned why because such monied demand was for taxes the Justice of the Peace did not have jurisdiction of it.
Second. That the tax collector -was not represented by the law officer of the State.
The record is barren of proof that he was not; and if it was neces
Third. That the sale was never approved by the Auditor.
Here again, in the absence of proof to the contrary, we are constrained, under the presumption omnia rite acta, to hold that the approval was given if it was necessary. But such approval was necessary only for the payment of the costs, not for the perfection of the sale.
Fourth. That Joseph Desert having died in January, 1873, and the suit having been for the taxes of 1871 and 1872, which taxes of 1872 did not become delinquent before the end of 1873, — the suit was necessarily against a succession, and the Justice of the Peace had no jurisdiction of it.
We do not see that under these facts the suit was necessarily against a succession. It might have been instituted and carried to' judgment before the death of Desert. True, the demand for taxes of 1872 would in such case have been premature, but the tax collector while suing for the taxes of 1S71 may have included in the demand the current taxes of 1872, although not delinquent. His doing so would have given rise to nothing more serious than to a plea of prematurity.
Fifth. That the ft. fa. was executed contradictorily with a curator •ad hoc.
We do not see what else the justice was to do, if the heirs of the deceased were unknown, or absent and unrepresented; and under the same maxim, omnia rite acta, we must presume that such was the case. He had either to make such an appointment or else let the judgment remain unexecuted. We think that under the circumstances it was admissible for him to appoint some one specially .on whom notice of seizure might be served quoad hoc negotium. Ball vs. Crockitt, 9 Ann. 293; Theus vs. Kemp, 49 Ann. 1657.
Sixth and Seventh. That the tax collector was without authority to bring suit for the taxes.
This question was settled by the judgment condemning the defendant to pay the taxes. After judgment and execution and sale, it is too late to urge objection to the capacity of the plaintiff to stand judgment.
Eighth. This ground, as we understand it, is the same urged later in plaintiffs brief, namely, that the officers in charge of the State Land Office were without authority to sell this land to W. E. Eutland by ■patent, that the land could be validly sold only in pursuance of the
The suit being a petitory action against a defendant claiming title, this title if still vested in the State would be just as effectual a bar to the suit .as if vested in defendant; hence, plaintiff has no interest in the question. Hennen Dig., p. 1114. The possession taken by the sheriff when he made the seizure is joined to that of the present time, and the defendant is presumed to have been continuously in possession. Brien vs. Sargent, 13 Ann. 198.
Finally, plaintiffs contend that the land adjudicated to the State at the sheriff’s sale is not the same for which suit is now brought. The land sold is the land that was owned by Joseph Desert. This is shown by a plat introduced in evidence by plaintiffs. The description in the deed agrees with the description in the plat in name, boundaries and acreage, and differs only in that section 25, which is the land in controversy, is put iby the deed in township 10, range 8, whereas by the plat it appears to be in township 10, range 7. That this is an immaterial error is not debatable, in the light of past adjudications of this court bearing on errors in descriptions according to government surveys. Error in the range has time and again been held immaterial where by the other parts of the description, and even by competent proof aliunde, the land was identified. See Bryan vs. Wisner, 44 Ann. 832, and eases there referred to.
For these reasons, we find no error in the judgment of the Court of Appeal, and the same is hereby sustained.
Rehearing refused.
