Guillory v. Elms

• Decision Date: 06 June 1910
• Docket Number: 17,885
• Citation: 126 La. 560,52 So. 767
• Court: Louisiana Supreme Court
• Parties: GUILLORY et al. v. ELMS

52 So. 767

126 La. 560

GUILLORY et al. v. ELMS

No. 17,885

Supreme Court of Louisiana

June 6, 1910

Appeal from Sixteenth Judicial District Court, Parish of St. Landry William P. Edwards, Judge.

Action by Joseph A. Guillory and others against Charles S. Elms. Judgment for plaintiffs, and defendant appeals. Affirmed.

Gilbert L. Dupre, for appellant.

Garland & Harry, for appellees.

OPINION

MONROE J.

Statement of the Case.

Plaintiffs allege that as the heirs of their ancestor, Joseph Simon Fontenot, they are the owners of a tract of land in the parish of St. Landry, described as section 33, in township 3 S., range 3 E., less the S. E. 1/4 of the S. E.1/4 of said section; that their ancestor acquired the land from the state of Louisiana on April 17, 1862, and that neither he nor his heirs have ever parted therewith; that there were assessed for the year 1895 to the heirs of Joseph Simon Fontenot "391.34 acres of land, being the S. E. 1/4 of the S. E. 1/4 in township three, south, of range three east"; that, as thus assessed, said property was advertised, and on January 21, 1897, adjudicated to George O. Elms, who thereupon prepared a deed evidencing a sale of the property inherited by petitioners; that said assessment, advertisement, and adjudication were insufficient to identify the property so inherited, and that the description was inserted in said deed in fraud, and vested no title in the adjudicatee; that the land here claimed has never been in the possession of said Elms or his vendors (vendees); that Charles S. Elms claims to have acquired the same from his father, Geo. O. Elms. Plaintiffs pray for citation, and for judgment, decreeing the nullity of said tax deed, maintaining their title and sending them into possession, etc.

Defendant, Charles S. Elms, sets up a claim of title running back, through mesne conveyances, to the tax sale to George O. Elms of January 21, 1897, which is the main object of plaintiffs' attack. He alleges that he and his authors have been in undisturbed possession of the land in question, and have paid the taxes thereon since said tax sale; that he purchased in good faith, and that his title is protected by the prescription of 10 years, under Civ. Code, art. 3478, and of 3 years, under article 233 of the Constitution; that neither plaintiffs nor their author ever paid any taxes on the land claimed, and that their demand is stale; that, should there be judgment against him, he is entitled to recover the amount disbursed for taxes, etc.

The evidence shows that plaintiffs are the sole heirs of Joseph Simon Fontenot, and that their ancestor acquired the land claimed by them, as alleged in the petition, and by the following description:

"Frac'l N. E. 1/4 of Sec. Frac'l W. 1/2; W 1/2 and N. E. 1/4 of S. E. 1/4, Sec. 33; Town. 3 S, Range 3 E; area 391.38."

In other words, he acquired all of section 33, except the S. E. 1/4 of the S. E. 1/4. The assessment and advertisement under which the property thus described is said to have been sold to Geo. O. Elms are as follows:

"Fontenot, Jos. Simon, Heirs of

"391 34/100 acres -- S. E. 1/4 of S. E. 1/4 tp 3 s r 3 e value $ 390; state tax, $ 2.34; parish $ 3.90; total $ 6.24."

From which it will be seen that there is no designation of the section in which the land attempted to be described is situated, and that, if any property can be said to be assessed or advertised, it is the S. E. 1/4 of S. E. 1/4 of an undesignated section, whereas, Jos. Simon Fontenot acquired all of section 33, except the S. E. 1/4 of the S. E. 1/4.

Geo. O. Elms admits that the deed purporting to have been executed pursuant to the adjudication under said assessment and advertisement was prepared by him, and the property said to have been adjudicated is therein described as having been borne on the assessment rolls as follows:

"No. 2270. Jos. Simon Fontenot, Heirs of: 391.34 acres; being all of section thirty three in T. three, south, range three, East, except the southeast quarter of southeast quarter."

On April 16, 1898, the children of Geo. O. Elms, as heirs of their deceased mother, Mary E. Barker, conveyed to their father all of their interest in various tracts of land, including that described in the tax deed above referred to.

On July 31, 1899, Geo. O. Elms, acting, apparently, as natural tutor, and by order of the district court directing him to sell the property in community of his deceased wife, adjudicated the "north, fractional, half section; the north half fractional south half, the south half of southwest fractional 1/4 and the southwest 1/4 of southeast 1/4 of section 33," to his son-in-law, John W. Rohrer, who on February 10, 1905, sold to Charles S. Elms, the present defendant, "all of section 33, in township 3 South, of range 3 East, * * * except the southeast 1/4 of S. E. 1/4 of said section." On September 11, 1906, Chas. S. Elms sold to Geo. O. Elms "the west, fractional, half -- the northeast fractional quarter -- the north half of southeast quarter and southwest quarter of southeast quarter sec. 33," said to contain 391.34 acres; and on October 15, 1906, Geo. O. Elms reconveyed said property to Chas. S. Elms, describing it as "391.34 acres in sec. 33, in T. 3 S., R. 3 E., * * * being all of section except 40 acres (S. E. 1/4 of S. E. 1/4)." This last-mentioned conveyance purports to be a sale for $ 2,700 cash, and Chas. S. Elms (examined under commission) testifies that he paid the price in cash, and hence had no check to exhibit. On the other hand, Geo. O. Elms (also examined under commission, and at a different place), being asked: "Did you ever receive any consideration for the various sales made by you?" replied: "Not as yet; the note given me had only matured a short time before this suit was instituted." Geo. O. Elms gives some other testimony, the purpose of which is to show that he took possession of the land by surveying it, asserting title, and leasing one acre to a party "for him to put a sawmill on," and that the sawmill was erected and was operated for several years.

Opinion.

It is plain that the adjudication for taxes of the S. E. 1/4 of S. E. 1/4 of an undesignated section of land in a designated township and range conveys to the adjudicatee no title to the whole of a particular section in such township and range, except the S. E. 1/4 of the S. E. 1/4; and it is equally plain that a tax deed having no other basis than such adjudication, but describing the property as all of said section, except S. E. 1/4 of the S. E. 1/4, can have no other or greater effect.

The adjudication alone transfers the title of the seized debtor and the act of sale which follows "adds nothing to the force and effect of the adjudication, but is only intended to afford the proof of it." Code Prac. arts. 690, 695. Where, however, there has been what purports to be an adjudication for taxes of property which from the description in the assessment and advertisement is not susceptible of identification, or there has been an adjudication of a sufficiently described tract, an act of sale, predicated thereon, cannot "afford proof" of the sale to the adjudicatee of a described tract other than that which has been adjudicated; for, there having been no such sale, there can legally be no proof of it and the...