McWilliams v. Michel
Jacob McWilliams v. Justinien Michels.
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Summary
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Opinion of the Court
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The opinion of the court was delivered by McEnery, J.
The defendants move to dismiss this appeal on the ground of want of jurisdiction rations materias, and that the plaintiff had applied for and obtained in open court an order of appeal to the Court of Appeals for the Third Circuit.
The amount in dispute is over two thousand dollars. This is apparent from the admission of defendants in their application to bond in the injunction proceeding. The order of appeal to the Court of Appeals was a nullity. The error of plaintiff in applying for and Obtaining an order of appeal to that court can not estop him from prosecuting his appeal and lodging it in the court having jurisdiction of the matters involved.
The motion to dismiss the appeal is denied.
On Rehearing
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On Application for Rehearing.
The defendant counsel failed to call our attention in his brief and argument to the fact which led to the error in the decree, and which is now. urged as a reason for granting a rehearing.
It will not be necessary to reopen the case to correct the error.
There was no controversy or dispute as to the description of the property. The case was argued and submitted on the assumption that McWilliams, the plaintiff, had acquired title to lots 10, 11, 12, 18, 14, 15, 17, from the Succession of Mille. These lots were assessed to McWilliams from 1881 to 1884, inclusive.'
Defendant now calls attention to the fact that lots 10, 16, 17, were not adjudicated to the plaintiff in the sale of the property in said succession to effect a partition.
An examination of the succession proceedings shows that he is correct. Plaintiff, however, does not claim lot 16. Lot 10 was not sold to the defendant at tax sale June 1, 1889. Lot 17 is the only part of the description of the property about which there can be any controversy between plaintiff and defendant. Lot 10 was assessed to the plaintiff by the State and adjudicated to her in 1888. It was never sold to the defendant. He has, therefore, no interest in it.
The decree in this case is, therefore, amended so as to strike out lot 17 from the description of the property in the decree. In all other respects it is to remain undisturbed.
The hearing refused.
On the Merits
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On the Merits.
The plaintiff alleging that he is the lawful owner of sections or lots Nos. 10,11,12, 13,14,15, 17, T. 8, S. R. 8 E., in the S. E. Laud District, brought this suit to set aside a tax deed of said property made to the defendant under the provisions of Act 80 of 1888, on the 1st of June, 1889, for an adjudication to the State on the 1st of May, 1886, for unpaid taxes of the year 1885, assessed to Breaux and Duperier.
The defendant was put into possession of the property. The plaintiff obtained an injunction restraining the defendant from committing waste on the property. There was judgment for the defendant maintaining his title to the property under the tax deeds and dissolving the injunction with $400 damages. The plaintiff has appealed.
In 1871 and 1872 the property in controversy was assessed to Eugene Garandi. Garandi held certain “floating” land scrip or warrants. He assigned the same to Thomas Mille, who located it on the property in suit. Patent No. 9197 was issued to him for this and other lots or sections in 1860. Garandi never owned the property, and was dead when the assessment was made to him. The land office at Baton Rouge was the proper place for the assessor to get *988 information of the description and ownership of the property which had been sold by the State to Mille. R. S. 2922.
The State had notice of the title of the property in Thomas Mille. She can not ignore this fact and assess the property to a person not the owner, sell it and acquire title to it.
Under this assessment the property was adjudicated to Breaux and Duperier. The assessment was null and void, and could not form the basis of a valid tax sale. 26 An. 509; 30 An. 176; 32 An. 926; 34 An. 107; 35 An. 1086.
Judge Breaux, in his testimony, states that, happening to be in St. Martinsville, he had the property adjudicated to him and Duperier, in order to pay the taxes thereon, as their owners were interested in the property. No adjudication or forfeiture of the property was ever made to the State under this assessment. The property was never assessed under this tax deed before 1885 to Breaux and Duperier. The plaintiff claims title on this tax deed of 1873 made to Breaux and Duperier. As he claims through the State, he must show title in the State. Judge Breaux disclaims title to the property. If there is any ownership of the land under this tax sale, it must be in Breaux and Duperier. They have sold their interest in the property. In the partition proceedings of the succession of Mille, they joined with their wives in a sale of the property in controversy to the present plaintiff.
From 1873 to 1881 the property was not assessed. From 1881 to 1884, inclusive, it was assessed to the plaintiff. In 1885, without the knowledge of Breaux and Duperier, it was assessed to them. The lands of Wilbert & Son, which were also purchased at the same time in the partition proceedings in the Succession of Mille, were assessed and sold confusedly with plaintiff’s property for the unpaid taxes for the year 1885, assessed to Breaux and Duperier. It was under this assessment that the adjudication was made to the State in May, 1886, which resulted in the tax sale June 1, 1889, under Act 80 of 1888, and the adjudication and tax deed to the defendant Michel.
In case of Wilbert vs. Michel, 42 An. p. 856, we said: “ The validity of the title acquired from the State depends on the validity on the adjudication forfeiture. If that was not valid, the State acquired no title, and can transfer none.”
In re Douglas, 41 An. 776, in enumerating the essentials for a valid sale of property, under tax proceeding, the assessment of the prop *989 erty was named as one of them. And in Breaux vs. Negrotto, 43 An., p. —, that the notice required by Article 210 of the Constitution should also be served on the tax debtor.
It does not appear in the record, and it is not alleged in the pleadings, that there was any change in the title to the property after the assessment to the plaintiff, Jacob McWilliams, in 1884, in which year he paid the taxes for the year previous. No reason is assigned for placing the property again on the rolls in the names of Breaux and Duperier, except that there was a recorded tax deed to them in 1873. This adjudication being null and void, because of the defective assessment, as stated above, the continuation of the property on the rolls in their names was also null and void. There was, in fact, no assessment of the property in 1885 upon which the adjudication to the State in May, 1886, was based. There was no notice served on the tax debtor as required by Article 210 of the Constitution. The tax deed made to the defendant, 1st June, 1889, shows that the notice was served on Breaux and Duperier. But as a fact it was not even served on them. The adjudication, therefore, to the State, in 1886, and the proceedings in the sale of the property thereafter, under Act 80, 1888, were null and void. The State having acquired no title, she could transfer none.
For the tax of 1882, assessed to the plaintiff, the property was adjudicated to the State in 1883. She never took possession of the property, and seems to have abandoned all claim to it under the adjudication, as it was assessed to Breaux and Duperier afterward, and again adjudicated to the State under this assessment. But the defendant can not set up this adjudication as the basis of his title under the tax deed to him, June 1, 1889, as it was sold to him under Act 80 of 1888, as having been adjudicated to the State for the unpaid taxes of 1885, assessed to Breaux and Duperier.
From this statement of the case it is very clear that the prescription of one, three and ten years, pleaded by defendant, can have no application. Breaux vs. Negrotto, 43 An.
It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that there be judgment in favor of the plaintiff, decreeing the adjudication of the property described in his petition to the State on 1st May, 1886, for the tax of 1885, assessed to Breaux and Duperier, to be null and void, and of no effect, and that the adjudi *990 cation and tax deed made to the defendant, Juiien Michel, of said property on June 1, 1889, under Act 80 of 1888, be declared null and void, and it is further ordered that the plaintiff be declared the true and lawful owner of said property, and that he be placed in peaceable possession of the same, and that the injunction herein be perpetuated. Defendant to pay all costs. ‘ Breaux, J., recuses himself.
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