Doullut v. Smith

DUFOUR, J. The plaintiff, holder by mesne conveyances of a [6] tax title, sues for a writ of possession under section 65 of Act-85 of 1888, and for a quieting of his title under Section 3 of Act 101 of 1898, carrying into effect Art. 233, Constitution of 1898. The prayer of the petition is not merely for judgement quieting his title, but also for judgment declaring the property to belong to paintiff under good and valid title. The grounds urged for dismissal of plaintiff’s claim are: First. Want of jurisdiction, ralione materiae, in this Court. Second. An exception of no cause of action. Third. That the tax sale which plaintiff’s title rests is null and void, because the property was sold in part for a tax • which had been paid previous to said sale. Fourth. That plaintiff’s vendor in redeeming or purchasing the property from the tax purchaser acted as agent for defendants. x The record clearly shows that the parties did not value the property at more than $2,000, and , for, several years before, the assessment has been $600. With the facts shown by the record in a previous suit appealed to the Supreme Court in reference to this property, we have no concern, we take jurisdiction by virtue of the proof in the record before us. [2] The exception of no cause of action is based on the ruling in In re Siem, 111 Lea 555, to the effect that an action of this kind, i.e. under the Act of 1898, cannot be brought unless it is alleged that the party bringing the suit has been in possession for three years previous. The exception is not taken, the allegation of ownership made by the plaintiff is necessarily admitted to be true quoad the exception, and the prayer that the property be decreed to belong to plaintiff stamps the action with a petitory character. Moreover, the exceptions refer apparently more to the form than to the legal nature of the proceeding, and they are filed after, in an answer to the merits, the defendants had joined issue on the question of validity of title. [3] The evidence, establishes the fact that the taxes of 1893 had been paid before the property was sold. [7] Although Thibaut, the then Sheriff and ex officio tax collector, as a first impulse testified that the tax of 1893 was not paid to him, he admits that he would prefer standing by his books than trusting to his memory. Certified extracts from the Sheriff’s books show that the tax was paid on June 18th, 1894, and the tax sale took place on June 15th, 1895. It is further shown that the property was, on May 12th, 19th, 26th and June 3d and 9th, 1894, advertised to be sold on June 16th, 1894, and that on June 16th the advertisement was taken out. Though we do not, with the district judge, go to the extent of saying that “there could be no stronger proof that the taxes, of the year 1903 had been paid previously to the tax sale,” we think that the withdrawal of the advertisement on the day of the sale and the failure to sell at the time advertised were probably due to some promise of speedy payment which was carried out two days afterwards. It is immaterial who paid the taxes; it is sufficient that the tax collector received them, and the subsequent sale was an absolute nullity which Art. 233 Constitution 1898 did not cure. Plaintiff objected to proof of payment on the ground that defendants, by their pleadings and their acts, had estopped themselves from making such proof. The allegation referred to is that plaintiff’s author, when redeeming or purchasing the property from the tax purchaser; did so for the account of defendants as their agent, and this allegation follows the one alleging, the nullity of the sale for previous payment of the tax. This is not a matter of estoppel by conduct, as the defendant did nothing which misled plaintiff or induced him to adopt any course detrimental to his interest. Neither is it a matter of estoppel by pleading, it is at most a matter of conflicting or inconsistent demands, giving plaintiff the right to require that defendants should elect between them. To permit plaintiff to successuflly object by estoppel to either of the two alleged inconsistent defences, according to his convenience or interest, would practically give him the power to elect for defendants, and would deprive defendants of their legal right to elect for themselves. The law does not contemplate such a result in a matter of this kind. [8] November 13, 1905. The judgment annulling the tax sale and recognizing defendant’s ownership is correct. Judgment affirmed. ESTOPINAL, Recused.