New Orleans Pacific Railway Company v. Kelly, Bernstein & Company

• Decision Date: 01 June 1900
• Docket Number: 13,327
• Citation: 52 La.Ann. 1741,28 So. 212
• Parties: NEW ORLEANS PACIFIC RAILWAY COMPANY v. KELLY, BERNSTEIN & COMPANY ET ALS
• Court: Louisiana Supreme Court

28 So. 212

52 La.Ann. 1741

NEW ORLEANS PACIFIC RAILWAY COMPANY v. KELLY, BERNSTEIN & COMPANY ET ALS

No. 13,327

Supreme Court of Louisiana

June 1, 1900

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

OPINION

ON APPLICATION FOR REHEARING.

BLANCHARD, J.

The judgment appealed from rejected the demand of the plaintiff to be decreed the owner of the lands described in its petition. On appeal here by plaintiff this judgment was found to be correct and the decree of this court affirmed the same.

No application for rehearing has been filed on behalf of the plaintiff, who, so far as we are advised, acquiesces in the judgment of this court. But defendants apply for a rehearing complaining that whereas in their answer to the appeal they had asked that the judgment of the District Court be amended so as to decree the validity of the tax title under which they hold, the court had not passed upon the same.

They, therefore, pray that the opinion and decree of the court be so revised and amended as to pass upon the demand aforesaid and to sustain the same and to adjudicate the validity of the title set up by them.

This, we think, they are entitled to.

In their answer filed in the District Court we find that defendants, after praying for the rejection of the demand of the plaintiff, further prayed that the property described in plaintiff's petition be decreed to have been subject to taxation for the year 1889 -- being the year for which the same was sold for taxes -- and that they (defendants), having purchased at said sale, acquired the ownership of the lands. And they asked to be quieted in their possession as owners. The District Court not having passed specifically upon the demand of ownership set up by defendants, the latter, in their amended answer to the appeal, did pray this court, in deciding the case, to decree that the property in contestation was acquired by them agreeably to the provisions of the revenue law of the State, to-wit: Act No. 85 of the Acts of Louisiana for the year 1888, and to the provisions of the act of Congress entitled "An Act to provide for taxation of railroad-grant lands and for other purposes", approved July 10, 1886 (Chapter 764, p. 143, Vol. 24, U.S. Statutes at Large), and that they hold same by a just and valid title.

The identical property assessed to plaintiff company in 1889 -- for the taxes of which year the same was sold and purchased by defendants -- had been assessed to it in the preceding year, 1888, and the agent of the company paid the taxes of the latter year without protest, took the tax collector's receipt and caused the inscription of the tax lien to be erased from the records of the parish of Winn.

Assessed again the following year, plaintiff company failed to pay the taxes due under the assessment and proceedings were taken to enforce payment by sale, resulting in the adjudication of the lands to the defendants.

These lands while in the indemnity limits of plaintiff company's grant had been duly selected (presumably under the direction of the Secretary of the Interior,...