Gilmore v. Frost-Johnson Lumber Co.

• Decision Date: 06 March 1916
• Docket Number: 20007
• Citation: 139 La. 354,71 So. 536
• Court: Louisiana Supreme Court
• Parties: GILMORE v. FROST-JOHNSON LUMBER CO

71 So. 536

139 La. 354

GILMORE v. FROST-JOHNSON LUMBER CO

No. 20007

Supreme Court of Louisiana

March 6, 1916

Rehearing Denied April 3, 1916

SYLLABUS

(Syllabus by the Court.)

Civil possession, evidenced only by signs indicating an intention to possess, cannot be a basis for the prescription of ten years unless it commenced with physical possession.

The prescription of three years, under article 233 of the Constitution of 1898, does not commence until the tax deed is recorded in the official or authorized conveyance register of the parish in which the property conveyed is situated whether the tax sale was made before or after the adoption of the Constitution.

A sale made by the state pursuant to the provisions of Act No. 80 of 1888, of property that had been forfeited or sold to the state for delinquent taxes, is not a 'sale of property for taxes,' within the meaning of article 233 of the Constitution, providing that no sale of property for taxes shall be set aside, except for certain causes, unless the proceeding to annul it is instituted within three years from the date of recordation of the tax deed.

The prescription of three years, under section 5 of Act No. 105 of 1874, like the prescription of five years provided in article 3543, Civ. Code, cannot defeat an action of nullity founded upon a radical defect in a tax sale, such as that the property was sold under an assessment made in the name of one who did not own it.

The holder of a tax title must have had actual possession of the property to maintain a plea of prescription of three years, under section 5 of Act No. 105 of 1874.

R., C. & S. Reid, of Amite, for appellant.

J. C. & Thomas Gilmore, of New Orleans, and Edward N. Pugh, of Donaldsonville, for appellee.

OPINION

O'NIELL, J.

The defendant has appealed from a judgment annulling the appellant's tax title for 326.66 acres of timber land, described as the east half of section 13, township 7 south, range 5 east, and condemning the defendant to pay $ 40 damages for timber taken from the land.

The plaintiff claims title by mesne conveyances from James E. Zunts, who acquired title from the state under a patent dated the 5th of August, 1857. The defendant claims title through mesne conveyances from Robert A. Corbin, who purchased from the state at a public sale made by the sheriff and ex officio tax collector of Livingston parish, under the provisions of the Act No. 80 of 1888, on the 20th of July, 1889. The land had been adjudicated to the state on the 30th of April, 1884, for the unpaid taxes of 1883, assessed in the name of 'Stone & Co.,' under the provisions of the Act No. 96 of 1882. At that time the deed from James E. Zunts to the plaintiff's author in title, Judson & Co., was recorded in the conveyance records of Tangipahoa parish, but not in Livingston parish, where the land was situated. There is no evidence that 'Stone & Co.' ever owned or claimed the land in contest. There is an admission in the record that the courthouse was destroyed by fire on the 14th of October, 1875; but no testimonial proof or secondary evidence whatever was offered regarding 'Stone & Co.'

The tax deed from 'Stone & Co.' to the state was never recorded in the conveyance records of the parish of Livingston, but a copy was contained in a book labeled 'F. W. Miscar, Sheriff and Tax Collector, Parish of Livingston, State of Louisiana.' This book is described by a witness who testified that he was a deputy clerk and recorder in 1905 and 1906, and that he considered the book a part of the conveyance records of the office, as made up of the printed forms of the tax sales 'for the year 1885, bound and then filled out by the clerk.' It was admitted, however, by the parties to this suit, during the trial, that the conveyance records of the parish of Livingston are marked 'Conveyance Records' and have indices, and that 'Conveyance Book No. 4' was the current conveyance record of that Parish during the period embraced in the book marked 'F. W. Miscar, Sheriff,' etc.

No one has ever resided upon or actually occupied the land in dispute; in fact, there are no buildings on it. When the plaintiff purchased it, in July, 1890, he went upon the land and left in charge of it a man who resided half a mile away, and who thereafter went over the land at such times as he deemed necessary to prevent trespassing upon it. The defendant purchased all of section 13, in township 7 south, range 5 east, on the 1st of August, 1907, and had it surveyed and the boundary lines blazed in September, 1908. The trees were marked with three hacks on the side opposite section 13 and with the peculiar brand of the defendant company on the side facing the section marked. The brand had been recorded in the parish of Livingston and in two adjoining parishes, and had been published 90 days in the official journal of each parish. The defendant then also put upon eight or nine boundary trees tin signboards, 12 by 18 inches in size, bearing the warning: 'No trespassing on the lands of Frost-Johnson Lumber Company.' The man having charge of all the timber lands of the defendant company testified that he rode over the land in contest to prevent trespassing upon it at least 12 times -- perhaps 24 times -- during the 5 years after the defendant had bought it. The plaintiff's agent notified him promptly when the defendant had the land surveyed, but no actual interference was made by or on behalf of the plaintiff. Certain stavemakers began work on the land, under a contract with the defendant company, in January, 1911, and finished while this suit was pending. The suit was filed and service of the petition was accepted and citation waived on the 8th of March, 1908.

The land in contest was assessed to 'Stone & Co.,' and to no one else, on the assessment rolls of 1880, 1881, 1882, 1883, and 1884. On the roll of 1885 it appears in the list headed 'Lands Adjudicated to the State for the Year 1883.' It does not appear at all on the assessment roll of 1886; and on the rolls of 1887, 1888, and 1889 it was assessed only to Wm. V. Gilmore, under the heading 'Supplemental Roll for Back Years.' This is explained by the fact that the plaintiff paid the taxes for 1887, 1888, 1889, and 1890 on the 6th of October, 1890, after he had bought the property. The land was also assessed to R. A. Corbin on the original roll of 1889, and he paid the taxes of that year. Thereafter it was assessed every year in the name of W. V. Gilmore, and also in the name of R. A. Corbin (or one of his transferees), and the taxes were paid each year under both assessments.

Counsel for the defendant contends that the defendant has had physical possession of the land in contest continuously since September, 1908, and that, although the plaintiff alleged in his petition that he was in possession of the land and demanded damages for the alleged trespass and slander of title in this action of nullity of the defendant's tax title, he was not in possession, and therefore must be regarded as the plaintiff in a petitory action. It cannot affect the decision of this case to assume that the defendant took physical possession of the land in contest in September, 1908, and was in actual possession therefore more than one year, but less than three years, before the acceptance of service of the petition in this suit.

The defendant relies upon the following pleas of prescription, filed in this court, viz.:

(1) The prescription of ten years, under article 3478 of the Civil Code; (2) the prescription of three years, under article 233 of the Constitution, against the plaintiff's attack upon the sale made by the sheriff and ex officio tax collector of Livingston parish to Robert A. Corbin, dated the 20th of July, 1889; (3) the prescription of three years and of five years, under section 5 of Act No. 105 of 1874, as a bar to the action to invalidate the adjudication to the state, dated the 30th of April, 1884, and the action to invalidate the sale made by the state to Robert A. Corbin on the 20th of July, 1889; and (4) the prescription of five years, under article 3543 of the Civil Code, as a bar to the action to annul either the auction sale in the name of Stone & Co. to the state, dated the 30th of April, 1884, or the auction sale by the state to Robert A. Corbin, dated the 20th of July, 1889.

Opinion.

The plea of prescription of ten years, under R. C. C. art. 3478, cannot prevail, because there is no evidence that the defendant or any of its authors in title had physical or actual possession of the property ten years before the institution of this suit; in fact, the defendant does not claim that there was any actual possession of the land before September, 1908. Article 3487, R. C. C., provides that civil possession will suffice to complete a possession already begun, provided it has been preceded by corporeal possession. In Millaudon v. Gallagher, 104 La. 716, 29 So. 307, and again in George et al. v. Cole et al., 109 La. 834, 33 So. 784, in both of which cases the prescription of ten years was invoked in defense of a tax title, this court quoted from the decision in Chamberlain et al. v. Abadie et al., 48 La.Ann. 587, 19 So. 574, that:

The prescription of ten years, under R. C. C. arts. 3478 and 3479, 'must be supported by corporeal possession in the beginning, after which, if it has not been interrupted, it may be preserved by external and public signs announcing the possessor's intention to preserve the possession of the thing, as the keeping up of roads and levees, the paying of taxes, and other similar acts.'

Hence civil possession, evidenced by mere signs indicating an intention to possess, is not a basis for the prescription of ten years unless it began with actual physical possession.

The...