Landry v. McWilliams

• Decision Date: 25 May 1914
• Docket Number: 19772
• Citation: 135 La. 655,65 So. 875
• Court: Louisiana Supreme Court
• Parties: LANDRY et al. v. McWILLIAMS

65 So. 875

135 La. 655

LANDRY et al. v. McWILLIAMS

No. 19772

Supreme Court of Louisiana

May 25, 1914

Rehearing Denied June 29, 1914

SYLLABUS

(Syllabus by the Court.)

Where the description, according to which land has been advertised and sold for taxes, is sufficient 'to furnish the means of reasonable identification,' the sale will be sustained, though the number of the township in which the land is located be erroneously stated in such description.

Borron & Wilbert, of Plaquemine, for appellants.

J. H Pugh, of Plaquemine, and Walter Lemann, of Donaldsonville, for appellee.

On Motion to Dismiss Appeal.

O'NIELL, J., takes no part.

OPINION

MONROE, C. J.

Defendant (appellee) moves to dismiss this appeal on the grounds: That the appeal was originally returned to the Court of Appeal, First circuit, which tribunal, on December 12, 1912, made the following order:

'We do hereby order an direct that the appeal herein be, and the same is hereby transferred to the Supreme Court, as provided by Act No. 19 of 1912.'

That no return day was fixed. That no affidavit was made that the appeal was not taken for the purpose of delay, and that the transcript, filed in this court on January 20, 1913, is not the record that had been lodged in the Court of Appeal.

Act No. 19 of 1912, under the authority of which the transfer was ordered, amends, reenacts, and supersedes Act 56 of 1904, and does not require that the order of transfer shall fix a return day, or that it shall be predicated upon an affidavit; and it is silent in regard to method to be adopted in bringing the appeal to this court. Inasmuch, however, as the proper place for the original record, whereby the appeal was taken to the Court of Appeal, is the district court, it appears to us that appellants acted reasonably in having a transcript made to be lodged in this court.

The motion to dismiss is therefore overruled.

On the Merits.

Plaintiffs, who are the widow and heirs of Victorin Landry, bring this petitory action to recover the S. E. 1/4 of section 61, of township 9 S., range 10 E., lying in the parish of Iberville, and containing 160 acres, more of less; and also to recover damages for the removal of timber from the land so described. Defendant sets up a tax title, of date June 27, 1896, recorded July 9, 1896; pleads the prescriptions of ten, three, and one years, and estoppel by conduct.

The evidence shows that the land in controversy is swamp; that it was acquired by Victorin Landry before his marriage, which took place in 1856; that he died some 33 years prior to the date of the trial; that plaintiffs had heard that he owned a tract of land somewhere, but did not know its location, and never paid taxes on it; that it was variously assessed, from 1890 to 1900, to 'Landry, Vict., Est.,' 'Landry, Victorin, Est.,' 'Landry Victoria,' 'Landry, Vict.'; that it was assessed for the taxes of 1895 to 'Landry, Vict.,' and was correctly described as 'S. E. 1/4, Sec. 61, T. 9, R. 10 E.'; that it was advertised, in 1896, for the taxes of 1895, as '169 acres, S. E. 1/4, Sec. 61, T. 8, R. 10 E., * * * assessed in the name of Victoran Landry,' and on June 27, 1896, was adjudicated by the sheriff and ex officio tax collector to the defendant; that in 1902 defendant had the S. E. 1/4 of section 61, town 9, range 10 E., surveyed as the tract which had been sold to him, and in 1905 placed a man on it who, from that time, during every year up to the institution of this suit, cut timber thereon, under an arrangement with defendant, who made him advances and shared with him the proceeds of the sale of the timber. It further appears that Victorin Landry owned no other land in the parish than the quarter section in question; it is not suggested that his children or grandchildren, plaintiffs herein, owned any other; and it is conceded that his widow, plaintiff herein, has no interest in said quarter section, which had been acquired by her husband before their marriage.

If, in an attempted description of a tract of land, for the purposes of assessment or any other purpose, there is an error in the name, or in the spelling of the name, of the owner, or registered owner, or in the measurement, by so much as the fraction of an inch, or of a square foot, or in the location, by the misplacing of a single side line, the attempt fails, and the land cannot be positively identified by the description, since, no matter how slight the differences, the thing itself and the thing described are not the same, and absolute sameness is of the essence of identity. The lawmaker has therefore declared that:

'For the purpose of taxation and tax sales it shall be sufficient to assess and describe all property according to such a description as will reasonably identify the property assessed; such as [giving various illustrations] or, by such other further description as may furnish the means of reasonable identification. * * * That for the purposes of taxation and tax sales it shall be sufficient to assess and advertise all property in the name of the person or persons, whether dead or alive, who, at the time the assessment was made, appeared to be the owners thereof. * * * That no assessment or tax sale, shall be set aside or annulled for any error in description or measurement of the property assessed in the name of the owner, provided the property assessed or sold can be reasonably identified. * * * That the tax sale shall convey, and the purchaser shall take the entirety of the property, neither more nor less, intended to be assessed and sold and such as it was owned by the delinquent taxpayer, regardless of any error in the dimensions or description of the property assessed and sold and the tax collector * * * may give the full description according to original titles.' Act No. 140 of 1890.

'No sale of property for taxes shall be set aside for any cause, except on proof of dual assessment, or 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 three years from the adoption of this Constitution, as to sales already made. * * *' Constitution 1898, art. 233.

Construing the Act of 1890, it has been said by this court, in Geddes v. Cunningham, 104 La. 311, 29 So. 140:

'* * * There is a difference between the absolutely certain identification which results from giving the christened and surnames of the present owner, with the correct spelling, and the number of...