Gibson v. Young

TALIAFERRO, Judge. Plaintiffs, the widow and three heirs of Thornton H. Gibson, deceased, bring this action against I. L. Young to have their ownership recognized and their possession quieted to the following described land in Caddo parish: 6½ acres of land lying in the west half of the southwest quarter of section 10, township 23, range 16, Caddo parish, La., described as follows: Commence at the northeast corner of W. ½ of S. W. ¾. of said section 10, township 23, range 16, run thence south 7 acres in length; thence west 1 acre in width; thence north 7 acres in length; thence east 1 acre in width, to point of beginning; less right of way of one-half acre previously sold to Kansas City, Shreveport & Gulf Railroad Company; and to have canceled and erased as invalid, for reasons hereinafter set out, a purported tax sale of said land to said Young in the name of M. A. Johnson, for unpaid taxes of 1925. The description of the land in the tax deed is indefinite and reads as follows: “6½ acres in W½ of SWJ4 of Sec. 10 (23-16) per Jeters Country Plat 2316, Tract 5.” Petitioners aver that in March, 1901, Thornton H. Gibson purchased from M. A. Johnson and Lee Johnson the above-described ó^^-acre tract, and, in addition, the following lands adjacent thereto: N. W. ½ of S. E. ½, and N. E. ¾, of S. W. ¾, of section 10, township 23, range 16, and 5 acres in a square in the extreme northwest corner of S. E. ¼ of S. W. ½ of said section 10, township 23, range 16, Caddo parish, La.; but, by error and inadvertence, the 6%-acre tract was omitted from the description in the deed to him; that said Gibson went into the physical possession of all the land he intended to purchase, and held such possession thereof as owner until his death on July 27, 1933, and that his widow and heirs, to the present time, have continued, uninterruptedly, to exercise like possession of said lands, including the 6½-acre tract. They allege themselves to be owners of this omitted tract because of physical possession thereof by themselves and the deceased, as owners, for a period of 30 years, and invoke appropriate prescription in support thereof. The tax deed to Young is attacked as being null and void for the following reasons: (1) That no notice of the tax sale was served on T. H. Gibson, owner, or upon M. A. Johnson, to whom it was assessed, he being dead at the time; and (2) that the description in said tax deed is indefinite and that the land cannot be identified therefrom. [749] They aver tender to Young of the amount paid by him for said tax deed, plus 20 per cent, penalty, which he refused. Defendant denies that plaintiffs own said land, and avers the validity of the tax deed to him; that said land was regularly assessed for 1925 to M. A. Johnson, record owner, and sold, after due proceedings and giving of all required notices, for delinquent taxes of that year; that this tract was the only land owned by Johnson at the time. He avers he has been in possession of the land since tax sale to him, and pleads prescription of one, three, and five years. Plaintiffs prevailed in the lower court, and, from judgment recognizing their ownership of the land and canceling defendant’s tax deed thereto, defendant has appealed. Here, appellees move to dismiss the appeal on the ground that defendant has no further interest in the land involved, because, since the appeal was perfected, he had quitclaimed all his right, title, and interest therein to one Jewell Johnson Fitts. Motion to Dismiss Appeal. There is attached to the motion to dismiss a certified copy of the transfer from appellant to Jewell Johnson Fitts, wherein he declared that he conveyed and quit-claimed unto her all of his right, title, and interest in the tract of land in controversy. However, the consideration expressed therein is declared to be as follows: “The consideration for this conveyance is the fact that the said Jewell Johnson Fitts is the owner of the above described property by virtue of having heired same from her deceased uncle, M. A. Johnson, and a $1,000.00 oil payment to be paid by Z. Lohman out of ½6 of ⅞ of the first oil produced and sold from the above described property as a reimbursement of the money paid by me for taxes on the above described land.” It is argued by appellant that, as this court has no original jurisdiction, it is without authority to consider the motion to dismiss the documents attached, beyond remanding it to the lower court for disposition. If the question were a controversial one, this position would be well taken. The transfer, being in authentic form, is self-proving. We have the right to consider it to the extent, at least, of determining whether, taking it at its full face value, it discloses that appellant has divested himself so completely of interest in the property that he no longer has a right to prosecute the appeal and stand in judgment. In Saunders v. Busch-Everett Co., 138 La. 1049, 71 So. 153, on a motion to dismiss the appeal, based upon allegations that appellant had' acquiésced in the judgment appealed from, the court considered and quoted from the document presumably attached to the motion, which was relied upon to prove acquiescence. The motion was denied without remanding the case for trial of the issue tendered thereby. We think it is generally conceded that the appellate courts are vested with adequate original jurisdiction, under section 27 of article 7 of the Constitution, to consider the merits of a motion to dismiss an appeal, based upon supporting attached documents, to the extent necessary to determine whether the motion should be denied or granted or whether the case should be remanded for taking of testimony on the motion; and, when the contents of the supporting documents disclose lack of merit in the motion, the court should deny the motion and not remand the case. If the ex parte showing raises doubt of the right in appellant to prosecute appeal, the proper course is to remand the case for trial of that question; but, if the showing does not raise such doubt, or if no controversial issue is disclosed from the motion and exhibits relied upon, then the appellate court has authority to pass on the merits of the motion as presented, and deny same. No good reason appears for remanding the case for the sole purpose of having admitted in evidence on the issue of lack of right to prosecute the appeal, the authentic instrument exclusively relied on by mover. The stipulation in the transfer from appellant, quoted above, clearly discloses that he has some interest, remote though it may be, in the outcome of this suit involving title to the land sued for. If plaintiffs succeed here, as they did in the lower court, defendant passes from the picture ^completely; but, if the tax sale to him is held to be valid and to have vested in him a title to. the property superior to the title asserted by plaintiffs, and should oil be produced from the land, he stands to receive a substantial amount in money therefrom. We think the stipulation in his favor, forming part of the [750] consideration of the transfer by him, left vested in him an interest sufficient to entitle him to prosecute appeal. In Dwight v. Brashear et al., 12 La. Ann. 860, it was held that an appellant may abandon his appeal from that portion of the judgment which passed upon the title to property, and retain the appeal, in so. far as 'the judgment condemned him to make restitution of rents, etc.