Newman v. McClure

• Decision Date: 06 November 1961
• Docket Number: No. 362,362
• Citation: 134 So.2d 556
• Parties: Ernest NEWMAN et al., Plaintiffs and Appellants, v. Harvey B. McCLURE et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 556

134 So.2d 556

Ernest NEWMAN et al., Plaintiffs and Appellants, v. Harvey B. McCLURE et al., Defendants and Appellees.

No. 362.

Court of Appeal of Louisiana, Third Circuit.

Nov. 6, 1961.

Rehearing Denied Nov. 29, 1961.

Certiorari Denied Jan. 15, 1962.

Parker & Parker, by A. B. Parker, Jena, Benton & Moseley, by Fred Benton, Baton Rouge, for plaintiffs-appellants.

George V. Cotton, Winnsboro, W. D. Cotton, Rayville, Thompson, Thompson & Sparks, by W. H. Thompson, Monroe, for defendants-appellees.

Before FRUGE , CULPEPPER and HOOD, JJ.

HOOD, Judge.

This is a petitory action, coupled with other incidental demands, in which plaintiffs seek a judgment decreeing them to be the owners of certain undivided interests in and to the following described tract of land, situated in Catahoula Parish, Louisiana, to wit:

The Northwest Quarter of the Southeast Quarter (NW 1/4 of SE 1/4); the north three-eighths of the Southwest Quarter of the Southeast Quarter (N 3/8 of SW 1/4 of SE 1/4); and the north five-eighths of the Northeast Quarter of the Southeast Quarter (N 5/8 of NE 1/4 of SE 1/4); all in Section 21, Township 7 North, Range 6 East of the Louisiana Meridian; containing 80 acres, more or less.

The record shows that by warranty deed dated October 17, 1872, James Benjamin Oliver sold and conveyed to Nelson Newman, who was married to Rebecca M. Newman, a 160-acre tract of land in Catahoula Parish, which included the 80-acre tract which is here in dispute. Nelson Newman died intestate in 1887, and his wife, Rebecca M. Newman, died intestate in 1921. At their deaths they left several children surviving them, some of whom were living at the time the suit was filed, but all of whom are now deceased.

By two separate acts of sale, both executed in 1910, Mrs. Rebecca M. Newman and all of the surviving children of her deceased husband sold two 40-acre tracts of land out of the 160 acres orginally acquired by Nelson Newman, leaving the 80-acre tract which is the subject of this suit.

Plaintiffs are some of the heirs and descendants of Nelson and Rebecca M. Newman, and as such they contend that they (together with other heirs who were named as defendants) are owners of an undivided 4/5 interest in and to the above described property. The principal defendant originally named in the suit was Harvey B. McClure, who claimed to have acquired full ownership of the subject property by a warranty deed from Mrs. Mary V. Love and her children to him. Mrs. Love was one of the surviving children of Nelson and Rebecca M. Newman.

After the suit was filed Harvey B. McClure executed a deed purporting to convey this property to his brother, Charles F. McClure, and thereafter the latter was also named as a party defendant. Harvey B. McClure died on December 8, 1960, after this suit was tried, and his widow and children were substituted as parties defendant in his stead. Also, after the suit was filed, other defendants and some of the plaintiffs died, and their surviving heirs were substituted as parties to the suit.

This suit was filed on August 26, 1941. The defendant, Harvey B. McClure, filed the following exceptions: (1) Improper cumulation of causes of action; (2) misjoinder of parties defendant; (3) no cause and no right of action; (4) estoppel; and (5) a plea of prescription of five years, as provided by Section 11, Article 10, of the Constitution of Louisiana, LSA. The exceptions were tried and judgment was rendered on October 23, 1942, sustaining the exceptions of no right and no cause of action and the plea of estoppel, and dismissing the suit. Plaintiffs appealed from that judgment to the Supreme Court, which court transferred the appeal to the Court of Appeal, Second Circuit (Newman v. McClure, 221 La. 556, 59 So.2d 882). The Second Circuit Court of Appeal reversed the ruling of the trial court and remanded the case for trial on its merits (Newman v. McClure, 62 So.2d 126). Answers were filed, and after a trial of the case on its merits, judgment was rendered on March 24, 1961, in favor of defendants, rejecting plaintiffs' demands. Plaintiffs have appealed from that judgment.

The transactions relating to this property which are pertinent to the issues presented here are the following:

(1) Tax sale dated June 16, 1900, at which the property was sold to Robert H. Young for unpaid taxes due for the year 1899, under an assessment in the name of Mrs. R. M. Newman.

(2) Tax sale dated June 7, 1915, at which the subject property was adjudicated to the State of Louisiana for unpaid taxes due for the year 1914, under an assessment in the name of Mrs. R. Newman. Defendants contend that this adjudication is void because of an inadequate description of the property which it purports to convey.

(3) Tax sale dated July 14, 1923, at which the subject property was sold to C. F. Farrar for unpaid taxes due for the year 1922, under an assessment in the name of Mrs. R. M. Newman.

(4) Warranty deed dated August 7, 1924, from C. F. Farrar to Mary V. Love, the recited consideration being $64.86.

(5) Tax sale dated July 11, 1925, at which the subject property was sold to Ernest Young, Sr., for unpaid taxes due for the year 1924, under an assessment in the name of Mrs. Mary Love.

(6) Quitclaim deed dated February 18, 1926, from Robert Young to 'Mrs. R. M. Newman, and to her heirs, assigns and successors in title.'

(7) Quitclaim deed dated July 29, 1926, from Ernest Young, Sr., to Mrs. Mary Love, the recited consideration being $28.

(8) Tax sale dated July 2, 1927, at which the subject property was sold to S. R. Yancey and J. C. Hardin for unpaid taxes due for the year 1926, under an assessment in the name of 'Mrs. R. N. Newman Estate.'

(9) Quitclaim deed dated July 23, 1927, from S. R. Yancey and J. C. Hardin to Mrs. Mary V. Love, the deed specifically reciting that Mrs. Mary V. Love was the delinquent tax debtor and that she had tendered the necessary amount for redemption. The recited consideration for this quitclaim deed is $44.16.

(10) Warranty deed dated October 21, 1936, from Mrs. Mary V. Love and her children to Harvey B. McClure, the recited consideration being $640.

(11) Warranty deed dated January 24, 1944, from Harvey B. McClure to Charles F. McClure.

(12) Certificate of redemption dated May 12, 1958, executed by the Register of the State Land Office, purporting to redeem property in Catahoula Parish to 'Mrs. R. Newman.'

There appears to be no dispute between Harvey B. McClure and his brother as to their respective rights to the property, so the real issue presented here is whether Harvey B. McClure acquired full ownership of the property from Mrs. Love in 1936. Plaintiffs concede that he acquired an undivided 1/5 interest in the property from Mrs. Love, but they contend that he acquired no greater interest than that. Plaintiffs' position is that Mrs. Love became the owner of a 1/5 interest in the property by inheritance, that she never acquired any greater interest in the property than that, and consequently she was not able to convey and greater interest to McClure.

Defendants contend that after the death of Mrs. Rebecca M. Newman, Mrs. Love acquired all of the interests in the subject property which were formerly owned by her brothers and sisters, and that she then conveyed the whole of that property to McClure. The following transactions are the ones which defendants rely upon as vesting full fee title to the property in Mrs. Love:

(1) Warranty deed from C. F. Farrar dated August 7, 1924;

(2) Quitclaim deed from Ernest Young, Sr., dated July 29, 1926; and

(3) Quitclaim deed from S. R. Yancey and J. C. Hardin dated July 23, 1927.

The vendors in those three deeds to Mrs. Love had previously purchased the property at tax sales, and the only title which any of them had or was able to convey to Mrs. Love was the title which he acquired in that manner. Plaintiffs contend that the 1923 tax sale to Farrar, the 1924 tax sale to Young, and the 1927 tax sale to Yancey and Hardin, were void, that the purchasers at these purported tax sales acquired no interest in the subject property, and accordingly that they were unable to convey any interest in that property to Mrs. Love. It is argued that the property was adjudicated to the State on June 7, 1915, for unpaid taxes due for the preceding year, and that the title remained vested in the State from the date of that tax sale until it was redeemed from the State on May 12, 1958. Plaintiffs contend, therefore, that the 1923, 1924 and 1927 tax sales are null and void, because each of those tax sales occurred during the period of time when title to the property was vested in the State.

Plaintiffs are correct in asserting that where property has been adjudicated to the State and has not been redeemed in the time and manner provided by law, the taxing officers of the State are without authority to assess and sell the property as belonging to the former owner or any other person. Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225; Neal v. Pitre, 142 La. 737, 77 So. 582; Winn Parish Bank v. White Sulphur Lumber Company, 133 La. 282, 62 So. 907; Guidry v. Sigler, La.App. 1 Cir., 21 So.2d 232; Board of Commissioners for Fifth Louisiana Levee District v. Concordia Land and Timber Company, 141 La. 247, 74 So. 921; Thomas v. Bomer-Blanks Lumber Co., La.App., 1 Cir., 105 So.2d 299; Johnson v. Chapman, La.App., 2 Cir., 179 So. 466, reversed on other grounds 190 La. 1034, 183 So. 285; Heirs of Boagni v. Thornton et al., La.App., 3 Cir., 132 So.2d 494.

The property adjudicated to the State on July 7, 1915, however, is described in the proces verbal of the tax sale as follows: 'Mrs. Rebecca Newman 80 acres, Book 'O' pg. 169.' The instrument recorded in Book 'O,' page 169, is the warranty deed, dated October 17, 1872, from James Benjamin Oliver to Nelson Newman, by which deed Newman acquired a 160-acre tract of land which admittedly includes the 80 acres here in...