Smith v. Pontchartrain Land Co. , 10 Teiss. 203 ( 1913 )

His Honor,

HOEACE L. DUFOUE,

rendered the opinion and decree of the Court as follows:

'xnis action, being a petitory one, admits present possession m the defendant.

Plaintiff’s title, acquired in April, 1905, finds its origin, through mesne conveyance, in a tax sale in May, 1893, under Act 85 of 1888, for taxes of 1890, 1891 and 1892, under an assessment in the name of Ensminger.

That this sale was defective because the assessment was m the name of a dead man and no notice of intended sale was given is admitted by plaintiff,' whose present, claim is that these defects are cured by the prescription of three years under Art. 233 of the Constitution of 1898.

There appears to have been a dual assessment of the property from as far back as 1874 and the defendant’s tax titles rest upon tax sales under an assessment in the name of Conery who never owned the property.

The first,,title is based on an adjudication to Griffith, defendant’s author, of date June 21st, 1894 for taxes from 1872 to 1878, both inclusive under Act 82 of 1884.

The second title is’ by purchase by defendant from the State under Act 80 of 1888, for taxes of 1883.

These sales were not valid because based on assessments in the name of a dead man and also because the taxes for which the property was sold to the State had been previously paid.

Apparently conceding this, defendant, in support of its claim, urges the prescription of ten years acquirendi causa.

The issue is a clean cut one between the plaintiff who claims that his constructive possession of three ’years' under Ms recorded title lias barred bis title from! attack, and defendant wbo asserts that it bas beld corporeal possession of tbe property for more than ten years in good faitb under a just title translative of property from one honestly believed to be tbe owner.

On-'September 12tb, 1894, tbe Pontcbar train Land Com-, pany, alleging its purchase of tbe property in controversy from' John H. Griffin, obtained from tbe Civil District Court, in accordance with Sec. 4' of Act 82 of 1884, an order on tbe Civil Sheriff commanding him to seize the property and, aftér three lays ’ notice' of such seizure to either tbe former owner or tbe occupant, or after posting same if tbe property be vacant, to put tbe company into actual possession,' of tbe property.

The Sheriff’s return on this order shows a demand on one Patrick Burke for possession, a public posting of tbe notice to vacate after failure to find Burke or any one authorized to represent him, and a seizure’ by recordation in'tbe Mortgage Office on September 19th, 1894.

The return also declares that, on October 20th, 1894, the" Sheriff placed tbe company in full possession’ of tbe property and obtained' a receipt for so doing.

Mr. Forman,- wbo exclusively attended to tbe business of tbe company as secretary, treasurer and attorney, says that, shortly before or after the filing of tbe possession proceeding, be got Mr. Edgar Pilie, a com-petent surveyor, to point out the property and took a man with him to drive stakes in tbe ground, and he put a sign on it two feet long and eighteen inches wide with the inscription on it; “for sale, apply to B. R. Forman, No. 126 Carondelet.”

From 1894, tbe company paid the taxes which were assessed in its name.

All of these circumstances taken together are sufficient to constitute a beginning of corporeal or phvsicál possession of a determinate tract bearing a municipal square number by one claiming to be tbe owner and vendee by mesne conveyance of tbe tax debtor.

In tbe absence of proof to tbe contrary, ommia rite acta obtains as to tbe regularity and validity of tbe proceedings.

It further appears that, in 1901, tbe property was leased from tbe company by one Duvall wbo cultivated it as a truct farm, and that Mr. Wogan, in December, 1905, was employed to build and did build a. fence around it.

Tbe actual possessor, having proved that be went into possession in October 1894, and was still in possession in 1901 and 1905, will be presumed to have been in possession in tbe intermediate time. Possession once proven to exist is presumed to continue. R C. C., 3492.

We are of opinion that defendant’s physical possession prevented the accruing of tbe constitutional prescription of three years protecting plaintiff’s title from attack.

But, even should we bold that plaintiff’s title bad been cured by prescription because tbe adverse possession was not by tbe tax debtor (which plaintiff claims is required by tbe jurisprudence), tbe defendant’s plea of prescription of ten years acquirendi causa must be maintained.

In October, 1894, defendant was put in possession under judgment of Court justified by the governing tax statute, tbe tax title derived from one believed to be tbe owner was translative of property on its face and legally presumed to be valid. There is a presumption of good faith, unre-butted by any evidence in this case. Tbe possession was corporeal in its beginning and has since been continuous, uninterrupted, peaceable, public and unequivocal. Tbe ■tax deed was valid in form and not defective on its face and tbe possessor cannot be deprived of tbe right to plead prescription because be might by careful examination have discovered that bis vendor bad no title.

R. C. C., 3478, et seq; 38 An., 216; 113 La., 52; 118 La., and cases therein cited.

Opinion and decree, May 5th, 1913. Rehearing refused, June 23rd, 1913. Writ denied, October 13th, 1913.

The defendant’s plea of prescription of ten years must he maintained. • ,

. The judgment appealed from is reversed, plaintiff’s demand is rejected and judgment is now rendered quieting defendant in the ownership and possession of the following described property; . .

A certain piece or portion of ground with all rights, etc., thereto belonging, situated in the First District of this city in square No. 507, bounded by Thalia, 'South Glayoso, South Salcedo and Melpomene, Tail, Race as per sketch annexed to the margin of an act passed before J. A. 'Cahill,' notary public, April 14th, 1905.

It is further ordered that plaintiff pay costs- of both Courts.

Reversed.