Crillen v. New Orleans Terminal Co.

• Decision Date: 04 June 1906
• Docket Number: 16,033
• Citation: 41 So. 645,117 La. 349
• Court: Louisiana Supreme Court
• Parties: CRILLEN et al. v. NEW ORLEANS TERMINAL CO. In re CRILLEN et al

41 So. 645

117 La. 349

CRILLEN et al. v. NEW ORLEANS TERMINAL CO.

In re CRILLEN et al

No. 16,033

Supreme Court of Louisiana

June 4, 1906

Rehearing Denied June 27, 1906.

Action by John J. Crillen and others against the New Orleans Terminal Company.Judgment for defendant was affirmed by the Court of Appeal, and plaintiffs appeal for certiorari or writ of review.Application dismissed.

Francis Rivers Richardson, for applicant.

William Winans Wall and Miller, Dufour & Dufour, for respondents.

OPINION

MONROE, J.

Statement.

Plaintiffs sue for the recovery of three vacant lots in New Orleans of which they allege they are in possession, and pray that their ownership be recognized, and that the title of the defendant derived through mesne conveyances from the state of Louisiana be decreed null.Defendant alleges that it purchased the property from L. L. Stanton, with subrogation to his rights of warranty, affirms the validity of its titles, pleads prescription, and calls in warranty the Aztec Land Company, Limited(Stanton's vendor); and that company alleges that it acquired title from the State Auditor, under Acts No. 80, p. 88, of 1888, and No. 126, p 181, of 1896, and pleads the prescription of three years, under article 233 of the Constitution.

It is admitted that James Crillen, of whom plaintiffs are the heirs, acquired the property in 1861, and it appears from the evidence that he died on April 3d, and that his succession was opened on April 5, 1873; that the property in question was inventoried therein, and was again inventoried in the succession of his wife, who died in February, 1875; that in December, 1874, the property was forfeited to the state for the taxes of 1873, and in 1885 was adjudicated to the state for the taxes of 1882, and that in 1893 it was sold, under Act No. 82, p. 104, of 1884, to M. J. Larkin, who failed to comply with the law under which the sale was made, and in 1904 abandoned and quitclaimed the property to the plaintiffs, who, in November, 1903, obtained judgment, putting them in possession thereof as heirs of James Crillen and his wife.In the meanwhile (in 1902) the property was sold by the Auditor to the Aztec Land Company.It further appears that from 1869 to 1893, inclusive, the property was assessed to James Crillen, but that no taxes were paid on it, either to the state or the city; that from 1894 to 1904, inclusive, it was assessed to M. J. Larkin, and that no taxes, save those of 1903, were paid to the state, and none to the city -- the taxes due the city, from 1898 to 1903, having apparently been canceled by judgment of a city court.

The substance of the testimony and our conclusion upon the question of possession are as follows:

It has not been shown that plaintiffs were in actual possession, by corporeal detention, of the property at the dates either of the forfeiture, in 1874, the adjudication, in 1885, the sale by the Auditor, in 1902, or the bringing of this suit, in 1904. W. G. Tebault, a witness examined on their behalf, testifies that some 10 or 15 years prior to, say May, 1905, he inclosed the lots in question and other lots belonging to himself, with a fence, and kept his horses within the inclosure, but, finding, subsequently, that the horses did not thrive, he removed them; after which, it does not appear that he ever saw the property until he visited it for the purposes of this suit, when he found that the fence had entirely disappeared.Being asked as to the circumstances under which he thus took possession of the lots, and for whose account he held them, his answers, whether considered by themselves or in connection with other testimony, leave it a matter of doubt whether he took possession by permission of the owners, previously obtained, or without such permission, but with the expectation of obtaining it subsequently.Thus, in answer to the question, on direct examination, "Before building this fence, you obtained permission, as I understand, from Mr. Crillen,"he answers, "Yes, sir," but, on cross-examination, he testifies as follows:

"Is it not a fact, Mr. Tebault, that you did not hold the property for anybody's account; that you simply needed it and had it fenced in?A.I asked permission.Q.What did he say to you at that time?A.He said, certainly, he was glad I had done so."

-- From which it would appear that the permission was asked after the fence had been built, and that, prior to that time, the witness had been in possession without the knowledge of the owners, and, hence, had not been holding for their account.He was unable to say when the fence was built, save that it was 10 or 15 years prior to the time (May 29, 1905), at which he testified, and was equally uncertain as to the time at which he ceased to use the property.Thus:

"Q.It don't exceed five years, does it?A.Oh, no, sir.Q.Youare positive it don't exceed five years?A.I don't think so. * * * Q.Are you able to swear positively that you have had no stock in that place within the last five years?A.No, sir; I could not swear it positively; I believe I have, but I...