Head v. Howcott Land Co.

Statement of the Case. MONROE, J. The purpose of this suit is to determine the question of the ownership of the lands described in the petition. Plaintiffs claim under a sale made July 5, 1881, by the tax collector of the parish of Bienville for taxes of 1878 and 1880, assessed to Wm. Bogel, but James D. Head, the adjudicatee, testifies that he has never been in the actual possession of, has never paid any taxes on, the lands since his purchase, and never made any attempt to disturb the possession of Bogel prior to the institution of this suit. He also testifies that he never heard that Bogel or any one else was in possession. On the other hand, William Bogel bought certain lands, including those here claimed from the succession of Hyams, by two acts, of date July 15, 1876, and May 12, 1877, respectively, and on August 1, 1891, sold most of them to W. H. Howeott, by whom on October 25, 1893, the tracts so purchased by him were sold to defendant. It is admitted that plaintiff, J. D. Head, was married in 1878, that his- coplaintiff, Linden C. Head, is the only child of the marriage, that he was born in 1880, and that he is the sole heir of his mother; and it is undisputed that the title relied on by plaintiff was acquired under the regime of the community. It is also admitted that defendant and its author have paid the taxes on the lands in dispute since the date of their purchase from Bogel in 1891; and it is shown that Howeott caused said lands, or a portion of them, to be surveyed in October, 1891, and employed an agent to look after them; that defendant, from the date of its acquisition, or shortly afterwards, has been represented by a local agent, whose duty it has been to protect the lands from trespassers and maintain defendant’s right of possession therein; and that the agents so employed have discharged that duty by notifying trespassers, and, in several instances, bringing suits against them. Beyond this, defendant’s president and vendor testifies that in 1892, before he sold the lands to defendant, he personally went on them with a surveyor and timber estimator, and took possession to the extent of posting notices upon the comers, warning the public against trespassing. We gather from the testimony that the lands are main, ly wild marsh and woodland; and, though it [333] is said that two persons (the one a negro) have of late been cultivating some of them •{without apparently accounting to any one), we infer that, upon the whole, they have •not been regarded as desirable for such use, and that their principal value lies • in the timber. The lands claimed by plaintiffs include the following, to which defendant exhibits no title, to wit: W. Yz of N. W. Yi of section 15, township 18 N., range 7 W. The lands adjudicated to plaintiff (J.n D. Head) under the assessments for 1878 and 1880, against Wm. Bogel, include the following, to which Bogel had no title, to wit: N. W. Yi of S. E. Yi of section 15, township 18 N., range 7 W; N. W. % of S. W. % of section 11; W. Yz of S. E. % of section 34, township 18 N., range 8 W. The following lands, included in the sale to Head and assessed to Bogel, were assessed for the year 1880 to other persons as well, to wit: W. Yz of S. E. Yi of section 9 (assessed to John Heflin); N. E. Yi of N. W. Yi of section 12 (assessed to unknown own>er); W. Yz of N. W. Yi of section 15 (assessed to Mrs. M. E. Sullivan). The assessment rolls show payment by Bogel of the ■taxes of 1881, 1882, 1883, 1886, 1887, 1888, and the roll of 1885 does not indicate delin•quency for that year. The roll of 1884 is missing. The property appears to have been ■.sold for the taxes of 1889, and redeemed by Bogel, and the recorder certifies that he ■finds no assessment in the name of Bogel •for the year of 1890. As to the taxes for .the .years for which the property was sold, it is shown that the tax of 1878 was reported ■delinquent; but no such report as to the tax for 1880 was found in the auditor’s office. In the sale (from Bogel to Howeott •of August 1, 1891) the notary recites that the taxes up to and including those of 1890 are ■paid “by reference to certificate of register • of conveyances and recorder of mortgages,” .and, as has been stated, it is admitted that the taxes since then have been paid by defendant or its author. The notary’s certificate would cover a payment by a tax purchaser as well as by the owner of the property, and is therefore not conclusive that the payment did not, in some instances, result from the sale of the property for the tax, which was paid in that way. Upon the whole, we do not find the evidence adduced to show payment of the taxes of 1878 and 1880 sufficiently strong to outweigh the record and the presumption as to the regularity of the proceedings to enforce such payment. Opinion. In addition to the plea of payment (of the taxes for which the property was sold), defendant relied upon the prescription of 10 years, acquirendi causa, and upon the alleged invalidity of the title set up by plaintiffs, resulting from the facts, that portions of the land sold were separately assessed to different persons for the taxes for which the sale was made, and, upon the other hand, that traets belonging to different persons were assessed and sold in globo for the same tax. Plaintiffs plead various terms of prescription in defense of their title. We are of opinion that where, as in this case, a tax purchaser, after acquiring his title, makes no effort to take, or have himself put in, possession of the property purchased by him for 22 years, and during that long period asserts no claim to the property, pays no taxes on it, and allows third persons to acquire and exercise, in good faith, what they believe to be rights of ownership and possession with regard to it, such title remains open to any objection which might originally have been urged against it. In the case of Ashley Co. v. Bradford, 109 La. 641, 33 South. 634, the owners of the property removed from “the state, left no agent, practically abandoned the land, ceased to look after it, and, for nearly 20 years, neith [335] er returned it for assessment nor paid, or offered to pay, taxes on it,” and this court ruled that the holder of the tax title who followed up his purchase by paying the taxes on the property as they fell due acquired a civil possession sufficient to sustain the prescription established by the Constitution for the protection of such titles. In Terry v. Heisen, 115 La. 1072, 40 South. 461, it appeared that neither the owner nor any one else had been in possession of the property for 40 years prior to the tax sale, that no taxes had been paid during that time, and that, thereafter the taxes were paid by the tax purchaser, and it was held, as in the case of Ashley Co. v. Bradford, that the tax title was protected by the prescription established by the Constitution. In the instant case, the situation is reversed. The holder of the tax title, for more than 20 years, made no attempt to take possession of the property purchased by him, and neither returned it for assessment nor offered to pay the taxes which fell due upon it, and those taxes in the meanwhile were paid by ethers, who believed themselves to be the owners, and who exercised such rights of ownership and possession as the nature of the property and their own convenience.permitted. Whether their possession has been of such character or duration, or both, as to authorize the maintenance of defendant’s plea of prescription, aequirendi causa, is a question which we consider it unnecessary to-decide, but we are clearly of opinion that it has been sufficient for the purposes of the immediate question now under consideration. Defendant’s objection of dual assessment would be good if it were shown that the tax had been paid under either, or that the property had been sold under an assessment other than that of which the law expected the owner to take notice. Shelly et al. v. Friedrichs, 117 La. 679, 42 South. 218. The judge a quo (as we are informed through the briefs of counsel) rejected plaintiffs’ demand, on the ground that the property of Bog'el had been assessed and sold confusedly with the property of other persons, and we concur with him that the sale was null for that reason. Distinct pieces of property, belonging to different persons, between whom there is no privity of estate, cannot legally be included in the same assessment in the name of one of the owners; nor can the property of such owner be sold for the tax so assessed confusedly with that of the others. Howcott & Ransdell v. Board, etc., 46 La. Ann. 322, 14 South. 848; George v. Cole, 109 La. 817, 33 South. 784; Pitre v. Haas, 110 La. 176, 34 South. 361. The judgment appealed from is accordingly affirmed.