Baldwin Lumber Co. v. Dalferes

• Decision Date: 13 December 1915
• Docket Number: 21437
• Court: Louisiana Supreme Court
• Parties: BALDWIN LUMBER CO. v. DALFERES (MERMENTAU SHINGLE MILL, Intervener and Third Opponent)

70 So. 493

138 La. 507

BALDWIN LUMBER CO. v. DALFERES (MERMENTAU SHINGLE MILL, Intervener and Third Opponent)

No. 21437

Supreme Court of Louisiana

December 13, 1915

Rehearing Denied January 10, 1916

SYLLABUS

(Syllabus by the Court.)

The former owner of property that has been sold to the state for delinquent taxes, and sold by the state to a third party after the time for redemption has expired, has no interest in contesting the validity of the sale by the state to the third party if the tax sale to the state was valid, or if prescription has remedied the illegalities in the tax sale to the state.

It requires the actual physical possession, by the original owner of property that has been sold for taxes, to prevent the running of the prescription of three years in favor of the holder of the tax title. The fiction, called civil possession, resulting from the registry of the title of the original owner, will not suffice.

The prescription of three years runs in favor of the state as the adjudicatee at a tax sale, and inures to the benefit of a subsequent purchaser from the state.

Mouton & De Baillon, of Lafayette, and Borah, Himel & Bloch, of Franklin, for appellant.

Medlenka & Bruner, of Crowley, and Jerome Mouton, of Lafayette, for appellees.

OPINION

O'NIELL, J.

Alleging ownership and possession for more than a year, the plaintiff sued, primarily, to be maintained in its possession, and, in the alternative, to be recognized as the owner, of timber lands in the parish of St. Martin, described as follows viz.:

(1) Lots 5, 8 and 9, of section 4, township 10 S., range 5 E., containing 83.46 acres.

(2) The north half of lots 5 and 6 in section 41, township 10 S., range 5 E., containing 260 acres, more or less.

(3) Fractional section 8 and all of section 9, in township 10 S., range 5 E.

(4) Lot 5 and another fractional part of section 32, township 9 S., range 5 E., and lots 3 and 4 of section 5, in township 10 S., range 5 E., containing 144.84 acres, as shown within the letters A, C, and G on a map made by Rybski in May, 1857, and attached to the act of sale by Crow Girard to the Baldwin Lumber Company, dated in August, 1911.

The plaintiff alleged that the defendant, Dalferes, was trespassing and cutting down the trees on the lands above described; that he had made 2,000,000 feet of the timber, of the value of $ 6,000, into cross-ties, and had removed them from the land. The plaintiff prayed that the cross-ties taken from the land and remaining in the parish of St. Martin or removed to the parish of Lafayette be sequestered; that the defendant be enjoined from committing any further depredations on the land; that plaintiff recover the cross-ties and $ 6,000 damages, and be maintained in its possession of the lands. In the alternative, the plaintiff prayed to be recognized as the owner of the lands.

The suit was filed on the 10th of November, 1911, and is now before this court the third time on appeal by the plaintiff.

On proper allegations, affidavit, and bond, a writ of injunction issued, restraining the defendant from further operations on the lands, and writs of sequestration issued for the seizure of the timber already cut and the cross-ties made therefrom. The sheriff of the parish of Lafayette made a return on the writ of sequestration, stating that he had seized 1,312 cross-ties cut and removed from all of the land, which he described precisely as it is described in the plaintiff's petition. The sheriff of the parish of St. Martin made a return, saying that he had seized and sequestered 2,040 cross-ties located on lots 5, 8, and 9 of section 4, and on the north half of lots 5 and 6 in section 41, in township 10 S., range 5 E.

On the 2d of December, 1911, the commercial partnership styled Mermentau Shingle Mill filed a petition of intervention and third opposition, alleging that the cross-ties which had been sequestered were not the property of the defendant, Dalferes, but had been purchased from him by the third opponent, and that the plaintiff knew that fact before instituting this suit. The opponent alleged that, by preventing the payment of $ 1,501, due from the Houston & Texas Central Railroad Company, for 3,661 cross-ties sold and delivered to the railroad company at 41 cents each, the plaintiff had caused the railroad company to cancel a contract to purchase 5,000 cross-ties from opponent, on the undelivered portion of which the opponent had been deprived of a profit of $ 198. The opponent alleged that it had also suffered damages to the extent of $ 1,000 by injury to the firm's credit and the loss of the patronage of the railroad company; and that opponent was damaged in the further sum of $ 500 for attorney's fees, and $ 500 for the loss of time and for worry and expense occasioned by the illegal seizure of opponent's property.

The intervener or third opponent alleged, in the alternative, that, if the court should vested in the opponent by its purchase from the defendant, Dalferes, and if the plaintiff had a right to seize them, then that the opponent had a lien and privilege on them to secure the payment of $ 1,638.55, which had been paid by opponent to the defendant, Dalferes, as a partial payment of the purchase price of the cross-ties, and which had been used by him in paying for the labor in making and getting out the cross-ties and loading on cars the portion delivered to the railroad company.

The prayer of the petition of intervention and third opposition was for a judgment recognizing opponent to be the owner of the cross-ties sequestered, dissolving the writs of sequestration and condemning the plaintiff to pay damages in the sum of $ 2,198 and 8 per cent. interest on the $ 1,501 withheld by the railroad company from the 9th of November, 1911. In the alternative, opponent prayed that, if the court should hold that the title of the cross-ties was not acquired by opponent's purchase from the defendant, Dalferes, then that a lien and privilege on the ties be recognized in favor of opponent to secure the $ 1,638.55 paid by opponent to the defendant, Dalferes, on account of the purchase price of the ties, and used by him in paying the laborers for cutting and making them, getting them out of the swamps and loading the ties, which were delivered to the railroad company.

The Houston & Texas Central Railroad Company thereafter paid into the registry of the court the $ 1,501 due for the ties which had been shipped when the suit was filed, and the opponent, Mermentau Shingle Mill, dissolved the sequestration on bond and shipped the ties which had been sequestered.

On the 15th of December, 1911, the defendant, Dalferes, filed four exceptions to the plaintiff's petition, viz.: First, that it contained two inconsistent demands, one founded on a possessory action, and the other, in the alternative, on a petitory action; second, that the allegations of the petition were so vague and uncertain that the defendant could not properly answer them; third, that the law did not allow a writ of sequestration in aid of a possessory action, or an action for damages arising ex delicto; and, fourth, that the petition did not disclose a cause or right of action.

The defendant's exceptions were tried and submitted, and, on the 26th of December, 1911, judgment was rendered, maintaining them, dismissing the plaintiff's suit, dissolving the writs of injunction and sequestration, and reserving the defendant's right of action for whatever damages he had sustained.

On appeal to this court, the judgment was annulled and set aside, the writs of injunction and sequestration were reinstated, and the case was remanded to be proceeded with in accordance with the view expressed, that the plaintiff was entitled to prosecute at least one or the other, the possessory or the petitory, action. See Baldwin Lumber Co. v. Dalferes, 130 La. 712, 58 So. 519.

After the case was returned to the docket of the district court and a preliminary default had been entered against the defendant, Dalferes, on the 22d of June, 1912, he filed a general denial of the allegations of the plaintiff's petition. On the 3d of December, 1912, the plaintiff filed an exception to the petition of intervention and third opposition of the Mermentau Shingle Mill, that the opponent's petition did not disclose a cause or right of action for demanding recognition of a lien or privilege on the cross-ties sequestered; and, reserving the benefit of this exception, the plaintiff, as defendant in the third opposition, denied generally the allegations of the petition of intervention and third opposition of the Mermentau Shingle Mill, and especially denied that the defendant, Dalferes, ever had a title to the timber or cross-ties which the opponent claimed to have purchased from him. The case was then assigned for trial on the 9th of December, 1912, and, on the 6th of that month, the assignment was set aside. On the 3d of February, 1913, the defendant, Dalferes, filed a motion to compel the plaintiff to elect whether it would prosecute the possessory or the petitory action. The motion was argued and submitted a few days later, and, on the 24th of February, 1913, judgment was rendered, sustaining the motion and allowing the plaintiff four days in which to elect whether it would prosecute the possessory or the petitory action. On the 3d of March, 1913, on motion of defendant's counsel and on his showing that the plaintiff had not complied with the order to elect which demand would be prosecuted, judgment was rendered again dismissing the plaintiff's suit. On appeal to this court, the judgment was reversed on the ground that the motion to compel the plaintiff to elect was filed too late, after an answer had been filed; and the case was again...