Staples v. Mayer

The opinion of the court was delivered by Fenner, J. Plaintiff, suing in the capacity of executor of Walter O.Winn, alleges substantially: 1. That the succession of Winn owned certain lands in the parish of Avoyelles. 2. That in July, 1887, said lands were lawfully sold for delinquent taxes due thereon by said succession, and were adjudicated to Geo. L. Mayer for the price of §44.19, who paid the price and received the tax collector’s deed. 3. That in December, 1887, Mayer executed an act of sale of said property to M. O. Mosely. 4. That the sale to Mosely was induced by his false and fraudulent representation to Mayer that he was a creditor of the succession of Winn, and, as such, entitled to redeem the land from the tax sale; that he tendered the sum required by law for its redemption, and demanded a title in his own name for the protection of his rights as creditor, which Mayer accordingly made on receipt of the sum of $55.43, the exact sum required for redemption. 5. That the effect of the sale from Mayer to Mosely was to operate a redemption of the lands from the tax sale, and to revest the title to the same in the succession of Winn. 6. That Mosely was not a creditor of the succession of Winn or otherwise authorized to act for it. 7. That in October, 1889, Mosely sold a part of those lands to'Geo: L. Mayer and C. P. Oouvillon for the price of $600. 8. That Mayer, well knowing that Mosely had no title in law to the lands, acquired none under the sale to him. [631] 9. That Oouvillon took his title burdened with the same knowledge, “inasmuch as by the express terms of the act he assumed all risks of title and released Mosely from every obligation of warranty.” On these averments he asks for judgment decreeing the property to belong to the succession of Winn, annulling the sale from Mosely to Mayer & Oouvillon, and compelling the reconveyance of title to the succession. Various exceptions and defences were interposed, of which we need consider but one — the exception of no cause of action. It is clear to' our minds that if all the averments of the petition were established, they would authorize no relief in favor of plaintiff. The allegation that the sale from Mayer to Mosely operated a redemption, vesting title in the succession, is a mere averment of law, entirely unwarranted. It is apparent the act is not, and does not purport to be, a redemption deed. It is an act of sale for a fixed price, which Mayer had a right to make and which he did make. • . The utmost that can be said of it is that Mayer was induced to sell by the fraudulent representation of Mosely that he was a creditor of the succession of Winn, and, as such, was entitled and ready to redeem. This might furnish good ground for an attack on the sale by Mayer on the ground of fraud; but we are at a loss to perceive what ground of complaint it affords the succession. The sale to Mosely did not put the succession in duriori easu, or affect its rights in any manner. The validity of the tax sale is not questioned. It divested the title of the succession, subject only to the right of redemption within the term fixed by law. The sale to Mosely did not impair or abridge this right in any way. It is not pretended that the succession ever exercised, or intended to exercise, its right of redemption within the delay allowed. It is not claimed that the transaction between Mayer and Mosely had any influence or effect in preventing its doing so, or was even known until long after the delay had expired. What injury has the succession suffered? It stands precisely in the same position in which it would stand if none of these transactions had occurred. It has lost the land, not by the effect of the transactions assailed, but solely by the effect of the tax sale and by [632] its failure to redeem within the legal delay. It is attacking an alleged fraud which was not practised upon it and did not injure it in any manner. .It is claiming the benefit of acts done by a third person having no authority, and under no obligation, to act for it, and, upon its face, not done in its name or for its account, but exclusively in his own right as a purchaser under a valid contract of sale. Judgment affirmed.