Morris v. Hankins

• Decision Date: 30 June 1938
• Docket Number: 5608
• Citation: 185 So. 518
• Court: Court of Appeal of Louisiana — District of US
• Parties: MORRIS et al. v. HANKINS et al

185 So. 518

MORRIS et al. v. HANKINS et al

No. 5608

Court of Appeal of Louisiana, Second Circuit.

June 30, 1938

Theus Grisham, Davis & Leigh, of Monroe, for appellants.

Shotwell & Brown, W. F. Pipes, Dhu Thompson, W. D. Moore, C. T Munholland, and H. D. Montgomery, all of Monroe, for appellees.

OPINION

DREW Judge.

In August, 1923, the present plaintiffs, who are W. L. Morris and his three children, issue of his marriage with his first wife, now deceased, filed two suits in the Fourth District Court of Ouachita Parish, Louisiana, claiming title to certain property in Section 29, Township 18 North, Range 3 East. The first of those suits was docketed as No. 12,085 of that court and sought to assert title in the plaintiffs to the south 30 acres of the SE1/4 of SE1/4, Section 29 Township 18 North, Range 3 East. That suit was brought against the Monroe Sand & Gravel Company, Inc., and it was thereafter tried and decided adversely to the plaintiffs. The case was appealed to the Supreme Court and the adverse judgment was there affirmed on June 4, 1928, the Supreme Court decision being reported as Morris v. Monroe Sand & Gravel Company, Inc., 166 La. 656, 117 So. 763.

At the same time, August 18, 1923, the plaintiffs filed in that court suit No. 12,086, which is one of the suits now before this court. This suit sought to assert title to the north 10 acres of the SE1/4 of SE1/4 of Section 29, Township 18 North, Range 3 East, and to some 18 or 20 acres of land lying on both sides of the Dixie-Overland Highway in the NE1/4 of SE1/4 of Section 29, Township 18 North, Range 3 East. S. T. Hankins, D. F. Dennis and W. F. Wall were the defendants in this suit, each being made defendant for the portion of the property claimed by him. In this suit a money judgment was sought against D. F. Dennis and W. F. Wall for timber alleged to have been unlawfully removed by them from the property in contest, and, on the theory that there was no solidary obligation between the three defendants, S. T. Hankins filed an exception of misjoinder, which was sustained and the suit dismissed. An appeal from this judgment was taken by the plaintiffs to this court (No. 2224 on its docket), which affirmed the judgment as to Hankins, but since no exceptions of misjoinder had been filed by Wall and Dennis, the judgment was reversed insofar as it dismissed the suit altogether, and the case was reinstated and remanded for trial as to Dennis and Wall. This judgment was rendered by this court on May 9, 1925, and is reported as Morris v. Hankins. 2 La.App. 199.

Now, in suit No. 12,086, it had been alleged that defendant Hankins was claiming the north 10 acres of the SE1/4 of SE1/4 of Section 29, Township 18 North, Range 3 East, and all that portion of the NE1/4 of SE1/4 of the same section lying south of the Claiborne road, and since this suit had been dismissed as to Hankins, a new one, No. 18,037 (No. 5609 in this court, 185 So. 525) was filed on April 9, 1930, to assert title to this property. However, in the meantime, the first suit, No. 12,085, had been finally decided in the Supreme Court and, since in that suit plaintiffs' asserted title to the SE1/4 of SE1/4 of Section 29, Township 18 North, Range 3 East, had been finally rejected before the new suit was filed, that portion of plaintiffs' claim was omitted and the new suit, No. 18,037, only sought to assert title to that portion of the NE1/4 of the SE1/4 of Section 29, Township 18 North, Range 3 East, lying south of the Claiborne road, or Dixie-Overland Highway. Also in the meantime, Hankins had sold the larger portion of this property to other parties and the defendants in suit No. 18,037 (No. 5609) are the vendees of Hankins and the claimants of this property at the time that suit was filed in April, 1930.

It will thus be seen that while the first of these suits (No. 5608) describes and claims 10 acres in the SE1/4 of SE1/4 of this section, that particular property has passed out of the picture altogether and plaintiffs are now asserting title only to the land in the NE1/4 of SE1/4 of the section. Suit No. 5608 involves some 121/2 acres lying north of the Dixie-Overland Highway and 5609 involves some 6 acres lying south of the Dixie-Overland Highway, but none of the property now in litigation extends below the NE1/4 of SE1/4 of the section.

Except for the necessary changes attendant upon the differences in the properties and defendants, the petitions in both suits are the same. Plaintiffs allege they are the owners of the property by the following chain of title: 1. Severance from the public domain; 2. J. B. Wolfe & Company by Tax Collector to J. H. Noble, dated June 15, 1889; and 3. John H. Noble to W. L. Morris, dated December 3, 1892; and in addition to this chain of title, they plead the constitutional limitation of three years in aid of their tax title and the prescription of ten years acquirendi causa. The petitions make the usual allegations of a petitory action as to the possession of each defendant and its unlawful character, especially attack certain of the deeds from which defendants' titles emanated and pray for judgment recognizing plaintiffs as owners of the property, placing them in possession thereof, and quieting their title thereto.

The answers of the various defendants, while differing in more or less minor particulars, are in the main the same. The answers admit possession in each defendant of the particular property attributed to him, deny plaintiffs' title and aver title in the defendants and specially attack the tax deed which is the foundation of plaintiffs' title. Exceptions of no cause or right of action were filed by each defendant and certain defendants filed pleas of estoppel and res judicata.

Suit No. 5608, it will be remembered, originally embraced all of the land now in litigation and included S. T. Hankins as a defendant, along with Dennis and Wall, but, it was afterwards dismissed as to the land south of the Claiborne road, then claimed by S. T. Hankins, so as the suit now stands it only covers the land north of the Claiborne road and the only defendants are D. F. Dennis and W. F. Wall. Hankins was called into the suit as warrantor to defend the title of Dennis, but he is concerned in this particular suit only as warrantor and not as a principal defendant.

The petition alleges that W. F. Wall is in possession of the following described property: "All that portion of the E1/2 of the SE1/4 of Section 29, Township 18 North, Range 3 East, which lies between a north and south line from the southeast corner of the property now owned by W. F. Wall, in the above section, township and range, to the Claiborne road, and the west line of W. F. Wall projected in a southerly direction to the Claiborne road, said tract of land being bounded on the north by the property now owned by W. F. Wall, east by the land in the possession of S. R. Hankins, south by the Claiborne road, and west by the property of A. O. McCormick;" and that D. F. Dennis is in possession of the following described property: "All that portion of the NE1/4 of SE1/4 of Section 29, Township 18 North, Range 3 East, lying between the north line of Claiborne road and the south line of the property owned by W. L. Morris, said tract containing 91/2 acres more or less;" and each defendant specially admitted his possession of these respective tracts.

These descriptions are somewhat indefinite but that indefiniteness can have no effect upon the present suit because it having been alleged that each defendant was in possession of a particular tract, and each defendant having admitted his possession of the tract alleged, it can make no difference, for the purposes of this suit, just where the particular tracts are located. That question might arise in a boundary suit, but not where the title alone is involved.

Plaintiff's title emanates in a tax deed executed in the name of J. B. Wolfe & Company by J. E. McGuire, Tax Collector, to John H. Noble on June 15, 1889, for the taxes of 1888. In this deed the land is described as follows: "One hundred and fourteen (114) acres known as Thomas McGuire place about one and a half miles from Trenton lying on both sides of Claiborne road;" and the consideration therefor was a sum of $ 9.19, being the amount of taxes, interest and costs due by J. B. Wolfe & Company for the year 1888. This tax sale was attached by defendant Dennis on the following grounds: 1. That the land was erroneously described; and 2. That the sale was made to the last and highest bidder in violation of law.

And S. T. Hankins, having been called in warranty by Dennis, attacked this tax sale on the following grounds:

1. That there was no legal assessment on which the sale could be based;

2. That the land was not susceptible of identification;

3. That the assessment embraced lands not owned by the purported tax debtor and there was no notice to the actual owner, as required by law;

4. That the lands embraced in the assessment were separated into different tracts, which were offered for sale together, in violation of law;

5. That the sale was made to the last and highest bidder in violation of law; and

6. That the purported tax debtor never owned all of the McGuire place and there was therefore no legal assessment to form the basis of the purported tax sale.

Defendant Wall made practically the same attack upon this tax sale as set out above, but alleged further that all taxes had previously been paid on the land which he is claiming, and that as to his land, the sale was a nullity by reason of this prior payment of the taxes. Wall's defense presents issues which are not altogether the same as those involved in the Dennis title, so we shall pass his defense for the time being and confine this...