Jackson v. Hanna

• Decision Date: 11 January 1968
• Docket Number: No. 10930,10930
• Citation: 206 So.2d 779
• Parties: Lawrence JACKSON et al., Plaintiffs-Appellants, v. Robert E. HANNA et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 779

206 So.2d 779

Lawrence JACKSON et al., Plaintiffs-Appellants, v. Robert E. HANNA et al., Defendants-Appellees.

No. 10930.

Court of Appeal of Louisiana, Second Circuit.

Jan. 11, 1968.

Howell H. Heard, West Monroe, for appellants.

McHenry, Snellings, Breard, Sartor & Shafto, Monroe, for appellees Robert E. Hanna, Jr., and another.

Gilbert T. Brown, Jr., Monroe, for absent defendants.

Coon & Coon, Monroe, for Jake McMillan, and another.

Clarence A. Frost, Reserve, for appellee, Texaco Co.

Betty Ruth Chisley, not represented.

Before GLADNEY, AYRES and BOLIN, JJ.

GLADNEY, Judge.

The plaintiffs, tracing their title claims to their ancestor, Polly Jackson, petition for a declaratory judgment determining the ownership of a tract of land situated in Ouachita Parish and declaring they be recognized as owners of an undivided 31/64ths interest therein free of encumbrance from an oil and gas lease granted to Texaco, Inc. by Robert E. Hanna, Jr. and his wife, the principal defendants. The trial court denied the claims of plaintiffs who have appealed.

In this court appellees have filed answers to the appeal praying for an affirmance of the judgment insofar as it relates to their plea of peremption of five years prescribed by Article 10, Section 11 of the Constitution of 1921, and further ask that the decree be modified to sustain special pleas of prescription of 10 and 30 years based on LSA-C.C. Arts. 3474, 3478, 1030 and 3548, as to which, special pleas have been filed in this court.

In accordance with an order issued by this court Willie Jackson as provisional administrator of the Succession of Curtis Jackson, has become substituted as a party plaintiff in lieu of Curtis Jackson, deceased.

The following described tract of land is involved:

The West Half of the Northwest Quarter and the North Half of the Southwest Quarter of Section 24, Township 17, North Range 2 East.

In argument and brief plaintiffs indicate they have abandoned any claim to the Northeast Quarter of the Southwest Quarter of said property.

Certain facts are firmly established by the evidence. Polly Jackson married Charlie Jackson December 4, 1872. She died intestate January 8, 1921, survived by her husband and eight children, one of whom predeceased Charlie Jackson. The land in 1901 was patented by the United States to Charlie Jackson and became a part of the community of acquets and gains existing between Charlie Jackson and Polly Jackson. Subsequent to the death of Polly Jackson, Charlie Jackson remarried and on January 12, 1925, with his second wife, executed a special mortgage on all of the property. In foreclosure proceedings on this mortgage the property was purchased by J. R. Tidwell, the sale being evidenced by a sheriff's deed dated September 3, 1935. Thereafter the land was regularly assessed to Tidwell but on July 5, 1938, it was sold to Robert E. Hanna at tax sale for the state and parish taxes for the year 1937. More than 5 years had elapsed from the date of the tax sale when on February 23, 1944, Hanna conveyed the property to J. R. Tidwell.

Prior to Tidwell's death in 1955 he sold the aforementioned Northeast Quarter of the Southwest Quarter of Section 24, and his widow acquired title to the remaining 120 acres, the property in actual dispute, which Mrs. Tidwell by an act of donation transferred to appellees, Robert E. Hanna, Jr. and his wife, Martha Garrett Hanna. Prior to the institution of this suit on August 16, 1965, plaintiffs were judicially placed in possession of the estate of Polly Jackson and executed certain acts of renunciation of the Succession of Charlie Jackson.

The trial court rendered judgment recognizing the defendants and their assigns as owners of the land herein involved, resting its decision solely on the Constitutional peremption of five years applicable to tax sales. The opinion of the judge analyzed pertinent provisions of the Louisiana Constitutions of 1879, 1898, 1913, and 1921 in the light of our jurisprudence.

'It is this Court's conclusion that the Constitutional Convention of 1898 intended that tax deeds be given absolute validity other than those two exceptions spelled out in the Constitution. This provision was adopted by subsequent conventions of 1913 and 1921. Additionally, the 1921 Constitution provides for a longer period of redemption and a longer period of peremption. The difference in redemption and peremption must be constantly kept in mind in reading the cases which have effect upon the issue presented herein. Also one must constantly keep in mind under which provision of law the cases are decided, whether it be by legislative act or under constitutional provision. It is further necessary to be mindful under which constitution the cases are decided.

'In the instant case the property in dispute was sold at tax sale while in the name of J. R. Tidwell as record owner under a previous sheriff's deed. The property was purchased by R. E. Hanna. After more than five years had elapsed, Mr. Hanna sold the property back to Mr. Tidwell. In the deed it is stated: 'This quit claim and redemption is made without any warranty of recourse of any nature or kind, the intent hereof being only to redeem said property from the effect of the aforesaid tax sale.'

'Plaintiff contends that this language in the deed makes the deed a redemption and cites Montgomery v. Whitfield ¹ and Spears v. Spears. ² These cases are not apropos since they were decided under other law, upon other grounds, and under differing facts. This Court is of the opinion that the parties to a deed after tax sale and peremption can not change the nature of the title established by the instrument under the Constitution of 1921. After five years, unless the tax debtor sets aside the tax sale for reasons peculiar and particular to him, or unless there is fraud of such a nature as to bring equity into play, the provision by the Constitution that the tax sale is an absolute vestment of inchoate title is prevailing and the parties cannot perfect or effect a redemptive title. If in fact they wish to return the property to the former actual owners, they may do so by naming same. After the peremptive period of five years, the purchaser from the tax adjudicatee takes in his name and those who look at the record need look no further and no one else can benefit as owner under the deed from the tax adjudicatee except his vendees.

'In the instant case there is no allegation of fraud. There is no claim of irregularities which do not expire within the five year period provided for attack upon the tax sale. There is in fact no attack upon the tax sale itself. There is no proof of fraud or attempt to improve title through tax sale. There is no allegation that the tax debtor remained in possession and if there were, the tax debtor is the only one who can claim this benefit. Charlie Jackson and the Polly Jackson heirs were not tax debtors. Any claim of continued possession by them will not interrupt or defeat peremption.

'The plaintiffs in the instant case claim, as heirs of a record owner, Mary Polly Adams Jackson, because her interest could not have been transferred at the sheriff's sale under mortgage executed by Charles Jackson after her death. They further claim that the heirs of Mary Polly Adams Jackson, who happen also to be the heirs of Charles Jackson, along with Charles Jackson, remained upon the property from the time of the Sheriff's sale up to and through the tax sale--in fact, they claim possession of the property to date. Their claim as continued possessors cannot prevail or even have bearing upon the issue herein.

'Their possession cannot prevail against the tax adjudicatee from a tax debtor who is a stranger to them. The only benefit their possession may be to them is under a plea of adverse possession under the provisions of prescription 'acquirenda causa' of thirty years. The peremption period provided after the tax sale is prescription 'liberandi causa' and it does not require physical, corporeal possession. It does require that the person claiming under tax deed, in order to hold against the tax debtor and not have the period of peremption interrupted to dispossess or remove the tax debtor. However, the interruption in favor of the tax debtor cannot be claimed by the Jackson heirs herein as they are strangers to the tax debtor.

'The Jacksons have not pleaded their right to hold this property as adverse owners under prescriptive title. They have not proven their possession of this property continuously, uninterruptedly and completely for the period necessary to sustain such a contention. The Jackson heirs who have remained upon the property have done so by the gratuity of the Tidwells and Hannas. Their possession has not been adverse to these owners and if adverse could not be of any avail to them since this Court finds that the adjudication for taxes and elapse of more than five years created a new and complete title as to the world and particularly as to the Jackson heirs. * * *'

The principal issue presented in this case arises under LSA-Const. Art. 10, § 11, as amended by Acts 1927, Ex.Sess. No. 4; and Acts 1932, No. 147, the pertinent provisions thereof being:

'* * * The sale shall be without appraisement and the property sold shall be redeemable at any time during three years from date of recordation of the tax sale, by paying the price given, including costs and five per cent penalty thereon, with interest at the rate of one per cent per month until redeemed * * *

'No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given. * * *'

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