Mecom v. Graves

• Court: Louisiana Supreme Court
• Writing for the Court: O'NIELL, J.
• Citation: Mecom v. Graves, 148 La. 369, 86 So. 917 (La. 1921)
• Decision Date: 03 January 1921
• Docket Number: 22662
• Parties: MECOM v. GRAVES

86 So. 917

148 La. 369

MECOM v. GRAVES

No. 22662

Supreme Court of Louisiana

January 3, 1921

Appeal from Thirtieth Judicial District Court, Parish of Caldwell F. E. Jones, Judge.

Action by M. L. Mecom against Laura E. Graves. Judgment for plaintiff, and defendant appeals.

Judgment annulled, and suit dismissed.

Stubbs Theus, Grisham & Thompson, of Monroe, and C. P. Thornhill, of Columbia, for appellant.

J. W Hawthorn, of Alexandria, for appellee.

OPINION

O'NIELL, J.

This is a petitory action, in which plaintiff sued for a tract containing 120 acres of land, described as the S. 1/2 of the N. E. 1/4 and N.W. 1/4 of S. E. 1/4 of section 3, in township 13 north, range 4 east.

Judgment was rendered in favor of plaintiff for all of the land excepting about 30 acres which defendant had under fence and in cultivation. Defendant alone has appealed.

Plaintiff claims title under an alleged tax sale, of date the 20th of October, 1900, for the taxes of 1898 and 1899, said to have been assessed in the name of Claus Bogel. Plaintiff sold the land to N. M. Davis on the 10th of March, 1903. The latter instituted a petitory action against the husband of the present defendant, J. Q. Graves, who was then in possession as owner of the land; and the suit resulted in a judgment of nonsuit. Thereafter, that is, on the 23d of December, 1913, the present plaintiff, M. L. Mecom, returned to Davis the price he had paid for the land, and the latter gave a quitclaim deed or retrocession to Mecom.

The defendant in this suit claims title under and by virtue of the last will and testament of her husband, J. Q. Graves, who died on the 14th of March, 1913. In the will, defendant was named as the sole heir and universal legatee of the deceased, and executor of his will. When the will was offered for probate, the plaintiff in this suit was clerk of the district court, and it was by his official order and decree, acting for and in the absence of the judge, that the will was admitted to probate and ordered executed. It was also under his official order, acting for and in the absence of the judge, that the inventory was made; and, in the order, plaintiff appointed and designated himself as the officer to make the inventory. Both orders are dated the 22d of March, 1913, more than three years prior to the institution of the present suit. In the inventory made by plaintiff, in his capacity as clerk of court, of date the 10th of April, 1913, is described the property now in contest, as belonging to the succession of defendant's husband, J. Q. Graves.

Graves bought the land from Levy & Haas in 1874. The deed having been lost, Graves proved his title by secondary evidence in the suit of Davis v. Graves; and the entire record of that suit, including the testimony in the case, was introduced in evidence in the present suit, without objection on the part of the present plaintiff.

The manifest reason for introducing the record of the suit of Davis v. Graves in evidence in the present suit was that each party hereto pleaded res judicata, each invoking the judgment or decree rendered in the suit of Davis v. Graves. There was no merit in the plea of either party, because the judgment in the former suit was one merely of nonsuit, at the plaintiff's cost. Plaintiff in this suit argues that the decree rendered in the suit of Davis v. Graves was a tacit rejection of the demand of the defendant, Graves, in his answer to the suit, to be decreed the owner of the land. But it is too plain to admit of much discussion that a judgment of nonsuit against the plaintiff in a petitory action is not a final judgment upon the demand made in the defendant's answer to be decreed the owner of the property in dispute.

In the written opinion delivered by the district judge in this suit, the tax deed upon which plaintiff relies was declared an absolute nullity, not protected by the prescription of three years, invoked by plaintiff.

There are several reasons why the tax deed relied upon by plaintiff is absolutely null as to the land in contest. In the first place, a part of the land was assessed to one Darius Hebert, for the taxes of 1899, and the taxes on that part of the land were paid by him previous to the date of sale. The part of the land on which Hebert paid the taxes of 1899 is the undivided half of S. E. 1/4 of N. E. 1/4 and N.W. 1/4 of S. E. 1/4 of section 3, in township 13 north. range 4 east. In fact, Hebert paid the taxes on the undivided half of the entire S. E. 1/4 (as well as of the S. E. 1/4 of N. E. 1/4) of section 3. It is well settled that a sale made for taxes a part of which were previously paid, no matter by whom, is absolutely null and is not protected by the prescription of three years. Harris v. Deblieux, 115 La. 147, 38 So. 946; Booksh v. Wilbert Sons, 115 La. 351, 39 So. 9; Doullut v. Smith, 117 La. 491, 41 So. 913; Page v. Kidd, 121 La. 1, 46 So. 35; Board of Commissioners v. Concordia Land & Timber Co., 141 La. 247, 74 So. 921.

It appears also that the taxes on all lands assessed in the name of defendant's husband in 1898 and 1899 were paid by him punctually, and that the description of the lands assessed to him, although vague and indefinite, very likely included in its area the land now in contest.

The evidence in this case leaves a serious doubt that the land in contest, although it is included in the lands described in the tax deed held by plaintiff, was actually sold, or offered for sale, by the tax collector. The instrument purports to have conveyed more than 30 tracts of land, embracing nearly 6,000 acres, described as subdivisions of sections, in six townships, besides six town lots; all of which property is described as embraced in one assessment, in the name of Claus Bogel. As a matter of fact, the name Claus Bogel was not on the assessment roll at all, either for the year 1898 or for the year 1899. The name appeared in only the last two of the five issues (last preceding the date of the tax sale) of the weekly newspaper in which all proposed tax sales of the year 1900 were published. The tax collector, in offering the property for sale, read the description from the assessment in the name of Mrs. J. C. Wiltz (supposed to have been Claus Bogel's author in title), for the taxes of 1899, although the sale was being made as if for taxes assessed to Claus Bogel. The land in contest was not assessed to Mrs. Wiltz for that year. And it is admitted that she...