Goertz v. Menard

• Decision Date: 09 June 1936
• Docket Number: 1587
• Citation: 168 So. 747
• Court: Court of Appeal of Louisiana — District of US
• Parties: GOERTZ v. MENARD

168 So. 747

GOERTZ v. MENARD

No. 1587

Court of Appeal of Louisiana, First Circuit.

June 9, 1936

Harvey E. & Frank B. Ellis, of Covington, and Charles E. De La Vergne, of New Orleans, for appellant.

S. W Provensal, of Slidell, and B. M. Miller, of Covington, for appellee.

OPINION

JOHNSON Judge ad Hoc.

This is a jactitation suit in which plaintiff, alleging himself to be the owner and in possession of a certain tract of land described at length in his petition and being situated in the parish of St. Tammany, claims that the defendant has slandered his title thereto by having caused to be recorded in the conveyance records of the parish a certain act of sale to defendant by the sheriff of the parish in the succession proceedings of Mathilda Cummings, deceased, and by also causing to be recorded in the conveyance and mortgage records an affidavit of defendant declaring that plaintiff is not the owner of said property, but that he (defendant) is the owner thereof. He alleges that the order of the clerk of court under which the property was sold by the sheriff in the said succession proceedings is null, void, and of no effect for the reason that when said order was issued the property already belonged to him (plaintiff), he having acquired said property in the year 1922 and Mathilda Cummings having died in the year 1925. In the alternative he alleges that the order of the clerk of court to sell the said property, being an order to sell to pay debts, is null for the reason that no list of debts was annexed to the application for the order to sell said property for the purpose of paying said debts. He alleges damages in the sum of $ 500 and also claims $ 250 as attorney's fees. He prays for judgment for said damages and attorney's fees and that defendant be ordered either to disclaim title to the said property or else assert such rights as he may have against said property, and finally that the inscription of said title and affidavit be ordered erased from the records.

Defendant's first plea was an exception of misjoinder based on the ground that defendant's title complained of by plaintiff only conveyed to defendant an undivided five-eights in the property and that defendant's co-owners in indivision whom he names in his exception should have been made parties defendant with him. The exception was overruled, and although a bill was reserved no complaint on account of said ruling is urged before this court. Where no error in the ruling of the lower court on an exception is pointed out and urged by neither argument nor brief, the ruling will be presumed to be correct and to have been accepted as such and the point raised by the exception abandoned. This course was recently followed by this court in the case of Witson v. Joseph, 158 So. 661. What has just been said regarding the exception of misjoinder will also apply to the exception of no cause or right of action which was the next plea filed by defendant. The exception was based upon failure of the petition to allege malice. The court sustained it as to claim for damages but reserved to plaintiff the right to amend which was done. Defendant makes no complaint in this court on account of said ruling, and it will be presumed that defendant either accepts the ruling as correct or has abandoned the point raised by the exception. Plaintiff amended his petition supplying the allegation of malice.

Defendant's next plea bears no particular name or style. The plea challenges the right of plaintiff to maintain his action on the ground that plaintiff was not in possession of the property, the contention being that possession of the property in the plaintiff is a necessary requisite before plaintiff can maintain the action of jactitation. The court heard testimony on the question of possession and overruled the plea assigning well-considered written reasons.

Without discussing further the character of the plea or whether or not it should have been referred to the merits as being a defense to be pleaded by answer rather than by exception, after having reviewed the testimony, we agree with the able judge of the lower court that the acts of possession by plaintiff shown by the testimony show sufficient possession in plaintiff to maintain the possessory action.

According to the testimony, plaintiff cut and removed about seven cords of wood from the land. Witness Robert Rainey, who bought some of the wood, testified that he hauled it off the property and that it was stacked on the land before being hauled. Octave Cummings worked for Rainey and cut the wood. He was married to Mathilda Cummings and knows the property well. Also the testimony shows that plaintiff leased the property for mineral rights on two different occasions, once to Roxana Petroleum Company and another time to other parties. The plaintiff had the property watched at certain times and he paid the taxes on it up to the date of filing his suit. All of these constitutes acts of possession sufficient to maintain the possessory action. See Miller v. Albert Hanson Lumber Company, 130 La. 662, 58 So. 502, and Perry v. Board of Commissioners, 132 La. 415, 61 So. 511. In his answer defendant urges that plaintiff is estopped from asserting title to the property for the reason that he stood by and allowed the property to be sold in the proceedings had in the succession of Mathilda Cummings without protest although he had knowledge thereof personally or through his attorney. He then sets up the following contentions: (1) He denies that plaintiff is the owner of the property, and asserts that he (defendant) is the owner thereof by virtue of his purchase at the said succession sale of a five-eighths interest, and that plaintiff is without right to attack in a collateral manner the judgment rendered in said succession proceedings. (2) He urges that plaintiff's alleged title acquired at tax sale under 1921 assessment made in name of "Unknown Owners" is null for the following reasons: (a) That the tax sale is based on an assessment in name of "Unknown Owners," when as a matter of fact the owners were known to the assessing authorities; (b) that the description under which the property was carried on the assessment rolls was too vague and indefinite to sufficiently identify the property so as to make a valid adjudication for nonpayment of taxes; (c) in the alternative, that if the alleged tax title acquired by plaintiff does cover property claimed by defendant, plaintiff's said tax title is without effect for the reason that the title to the property at that time was vested in the state of Louisiana under an adjudication to the state for the unpaid taxes of the year 1883, and again under an adjudication to the state for the unpaid taxes of the year 1899, both of which adjudications to the state being duly recorded in the conveyance records of St. Tammany parish and no redemption from said tax adjudications to the state having been effected; and (d), also in the alternative, that plaintiff's alleged tax title is null and void for the reason that when he became the purchaser, by his own admissions, he was acting as the agent of the tax debtor, Mathilda Cummings, taking title in his own name to protect her title to said property. He alleges that the title to said property which vested in the state under the adjudications for nonpayment of taxes continued in the state until defendant redeemed said property from said adjudications in the year 1928, which completed defendant's chain of title which he sets up in detail.

The district judge in a written opinion discusses practically all of the defenses and disposes of them all adversely to the defendant rendering judgment for plaintiff as prayed for, except as to damages and attorney's fees which were rejected. Plaintiff has answered the appeal praying for an amendment to the judgment as respects claim for damages and attorney's fees.

In cases of this kind, when the right of the plaintiff to maintain the action has once been recognized, and the defendant has been required to assert his title in defense of plaintiff's claims, we believe it is well settled that the defendant then becomes the plaintiff in a petitory action, as it were, and must assume the burden of sustaining his title and the real plaintiff in the suit stands in the position of a defendant in the petitory action. The well-known maxim that "the plaintiff in a petitory action must recover on the strength of his own title and not on the weakness of his adversary's" would then seem to apply. We think the first question for this court to examine is the strength of defendant's title to the property involved in the light of the testimony submitted. If we find that title good and valid, it will be unnecessary to review the decision of the lower court on all the points of attack leveled at plaintiff's alleged title. The district judge correctly appraised the significance of the evidence tendered by the defendant in his answer and proof showing adjudications of certain property (alleged by defendant to be the property involved) to the state of Louisiana for the nonpayment of taxes under assessments made first in the year 1883 and second in the year 1899. In this connection the court said: "It is clear if either of the above adjudications to the State included the land embraced in the tax title under which the plaintiff is claiming, and if the adjudications to the State are valid, it follows as an inescapable consequence that plaintiff's tax title is null and void, as property previously adjudicated to the State under a valid assessment and adjudication cannot subsequently be assessed and sold under the name of Unknown Owners and vest the...