Kohlman v. Glaudi

• Decision Date: 01 February 1900
• Docket Number: 13,006
• Citation: 27 So. 116,52 La.Ann. 700
• Court: Louisiana Supreme Court
• Parties: LOUIS KOHLMAN ET ALS. v. JOSEPH GLAUDI

27 So. 116

52 La.Ann. 700

LOUIS KOHLMAN ET ALS. v. JOSEPH GLAUDI

No. 13,006

Supreme Court of Louisiana

February 1, 1900

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- King J.

Arthur J. Peters, Vincent Foulon and Charles H. Osterberger, for Plaintiffs, Appellees.

Albert Voorhies, for Defendant, Appellant.

OPINION

MONROE J.

This is a petitory action, brought by the heirs of John Kohlman and Regina Yaeger for the recovery of certain improved property on St. Ferdinand street in New Orleans. Defendant filed exceptions, of "no cause of action", "vagueness" and "prescription", which were referred to the merits; and answered, setting up title and possession for "a number of years". There was judgment for plaintiffs and defendant has appealed. It appears from the evidence that five of the plaintiffs are the children of John Kohlman and Regina Yaeger, his wife, both deceased; that the other plaintiff is the only surviving child of Regina Yaeger by a second marriage, and that the property in controversy was acquired, by purchase, by said John Kohlman, during the existence of the community between himself and said Regina Yaeger, to-wit, May 12, 1855; that said John Kohlman died March 28th, 1860, and that Regina Yaeger died April 21st, 1875; that neither of them had previously alienated said property, and that it was assessed in the name of John Kohlman from 1872 to 1886, inclusive, with the exception of the year 1881, when it was assessed in the name of Henry Kohlman. It further appears that, upon June 26th, 1886, said property was offered for sale by the State, under Act 82 of 1884, for taxes of 1873, 1875, 1877 and 1878, "assessed in the name of John Kohlman", and was adjudicated to Jacob Hoth, Joseph Schemel, and J. Stumpf for the sum of fifty-three dollars, cash, and their assumption of, and promise to pay, the taxes of 1880, and subsequent years. A deed was made by the collector, pursuant to this adjudication, July 13, 1886, which contains the further recital, "of which property John Kohlman is the present owner." Following this, upon July 23, 1886, the adjudicatees presented a petition, with the deed annexed, to the Civil District Court, alleging that the property had been advertised as the property of John Kohlman and sold to them for taxes assessed in that name, and praying to be put in possession. A writ was accordingly issued and notice to vacate served by the sheriff, who made return, as follows: "and on the 27th of July, I served a copy of the within three days' notice to vacate on John Kohlman, by leaving the same in the hands of Francis Kohlman, an occupant person apparently over the age of fourteen years", etc., and the writ of possession was finally executed by the ejection of the dead man's children, August 4, 1886.

The adjudicatees, however, failed to comply with the conditions upon which the property was adjudicated to them, that is to say; they failed to pay "the taxes of 1880 and subsequent years", which they had assumed and promised to pay, and, accordingly, upon July 22nd, 1889, the State offered the property for sale, under Act 80 of 1888, for the taxes of 1880, 1881, 1882, 1883, and it was adjudicated to Jacob Englehardt "through Jacob Hoth". Upon August 20, 1889, a deed was made by the collector to Englehardt in conformity to said adjudication. Thereafter, upon February 5th, 1891, the property appears to have been sold by act, before Titche, notary, by Englehardt to Joseph Schemel; and, upon May 21st, 1892, it was sold, by act before Legier, notary, by Schemel, to the defendant, Joseph Glaudi.

It may be remarked, that in 1876, 1879, 1883, 1884 and 1885 there appear to have been adjudications of the property to the State and city, based upon assessments made, after his death, in the name of John Kohlman. There was, however, no change of possession until Kohlman's heirs were ejected at the instance of Messrs. Hoth, Schemel, and Stumpf in 1886.

It is plain from this that the State and city had no right to make any of these adjudications, and that the State had no right to sell the property under Act 82 of 1884, or under Act 80 of 1888, since all the assessments, upon the basis of which those...