La Plaq Realty v. Vaughan

• Decision Date: 10 December 1945
• Docket Number: 37768.
• Citation: 209 La. 481,24 So.2d 870
• Court: Louisiana Supreme Court
• Parties: LA PLAQ REALTY, Inc., v. VAUGHAN et al. VAUGHAN et al. v. LA PLAQ REALTY, Inc.

24 So.2d 870

209 La. 481

LA PLAQ REALTY, Inc., v. VAUGHAN et al.

VAUGHAN et al. v. LA PLAQ REALTY, Inc.

No. 37768.

Supreme Court of Louisiana

December 10, 1945

Hehearing Denied Feb. 11, 1946.

Appeal from Twenty-Fifth District Court, Parish of Plaquemines; R. R. Reeves, Judge.

Fred G. Veith and John R. Perez, both of New Orleans, for plaintiff and appellant.

Brian & Brian, of New Orleans, for plaintiffs-appellees.

Emmet Alpha, of New Orleans, for intervener-appellee.

O'NIELL Chief Justice.

A corporation styled La Plaq Realty, Inc., brought suit by summary proceeding against Uri Vaughan and Fred Portie on July 26 1943, praying to be placed in possession of a tract of 1140 acres of land in Plaquemines Parish under a tax deed or redemption deed dated October 24, 1936. The sale purported to be made under authority of Act 161 of 1934. Vaughan and Portie being in possession of the land as owners brought a separate suit against La Plaq Realty, Inc., in the form of a possessory action, or an action for slander of title, and obtain a preliminary injunction enjoining La Plaq Realty Inc., from dispossessing Vaughan and Portie and from slandering their title. The judge of the district court ordered the two suits consolidated and dealt with them as a petitory action, with La Plaq Realty, Inc., as the plaintiff and Vaughan and Portie as the defendants. While the suit was pending Vaughan's wife died, and her daughter, Mrs. Joyce Vaughan Clark, being her only heir, intervened as a defendant, claiming her mother's half interest in the community property. After hearing the case on its merits the judge gave judgment rejecting the demands of La Plaq Realty Inc., and perpetuating the writ of injunction obtained by Vaughan and Portie. La Plaq Realty, Inc., is appealing from the judgment, and Vaughan and Portie and Mrs. Clark have answered the appeal and are asking that the judgment be affirmed so far as it rejects the demand of La Plaq Realty, Inc., and that it be amended so as to recognize and confirm expressly the title of Vaughan and Portie and Mrs. Clark.

The chain of title under which La Plaq Realty, Inc., is chaiming title to the land is as follows:

(1) A tax sale to the State dated October 1, 1921, under an assessment in the name of Rudolph J. Becker, for the taxes of 1920;

(2) A redemption deed dated December 6, 1934, to Vaughan and Portie, as assignees of Rudolph J. Becker and of the heirs of one O. P. Ode, under the provisions of Act 161 of 1934; and

(3) A sale made by the sheriff, ex-officio tax collector, of Plaquemines Parish, to La Plaq Realty, Inc., dated October 24, 1936, the sale being made for nonpayment of the first installment, amounting to $3.04, due by Vaughan and Portie under the redemption deed by which they bought the property on December 6, 1934.

Obviously, the reason why Vaughan and Portie obtained an assignment from the heirs of O. P. Ode, deceased, of whatever interest the heirs had in the land, in addition to obtaining an assignment from Rudolph J. Becker, is that Ode purchased from Becker, on May 12, 1923, Becker's interest in the land, being his right of redemption.

Inasmuch as Vaughan and Portie had actual possession of the property as owners at the time when this litigation arose and had had such possession continuously for a period exceeding 16 years, the judge was right in dealing with the consolidated cases as a petitory action, with La Plaq Realty, Inc., in the position of plaintiff and Vaughan and Portie and the intervener in the position of defendants.

Vaughan and Portie had the land entirely fenced, and constructed and maintained a family residence on the land for both of them. The cultivated a large portion of the high land and pastured cattle on the remaining portion; and they trapped furbearing animals on all of the land that was not cultivable, consisting of marsh and swamp land. They constructed and maintained canals and bridges which they used constantly in their trapping operations. They paid the taxes on the land during all of the 16 years previous to the bringing of this suit, and as far as the record shows, they are paying the taxes yet. Each of them maintains a residence in New Orleans, and each one with his family resides in his New Orleans home during a part of every summer. But both of them have resided on the land in contest during all of every winter, attending to their business of trapping and farming, which is their livelihood; and they and their families have resided on the land during the greater part of all seasons during the 16 years. No one ever had adverse possession of the land or disturbed Vaughan or Portie in their possession.

The issues in this case seem complicated because Vaughan and Portie have several independent titles which they are asserting. But the only question necessary to be decided is whether the sale made by the sheriff, ex-officio tax collector, to La Plaq Realty, Inc., on October 24, 1936, was a valid sale. Inasmuch as Vaughan and Portie are in possession of the property as owners, and inasmuch as La Plaq Realty, Inc., claims title from Vaughan and Portie by virtue of the sale dated October 24, 1936, if that sale is not valid that is the end of the case. The judge of the district court held that the sale was not valid because there was on record a prior redemption deed to one Claude H. Smith, dated July 21, 1934, showing that all taxes and tax liens theretofore existing in favor of the State were paid and extinguished. Vaughan and Portie bought from Smith whatever title Smith acquired by what the judge called the redemption deed, dated July 21, 1934. That deed is one of the titles which Vaughan and Portie are setting up against the claim of La Plaq Realty, Inc., in this suit. It was because of the redemption deed made to Smith on July 21, 1934, that the judge held that the redemption deed made to La Plaq Realty, Inc., on October 24, 1936, was not valid. The judge stated in his reasons for the judgment rendered in this case that the validity of the redemption deed made to Smith on July 21, 1934, should be tested, if tested at all, by La Plaq Realty, Inc., in a direct action, but could not be attacked collaterally in this suit. Pretermitting the question whether the redemption of this land by Smith on July 21, 1934, was a sufficient cause for declaring null the redemption deed to La Plaq Realty, Inc., dated October 24, 1936, our opinion is that the latter redemption deed is null for the failure to give notice to Vaughan and Portie of the seizure and intended sale by the sheriff, ex-officio tax collector, at any time before the sale.

Vaughan and Portie, in their petition in this suit, alleged under oath that no notice was ever served upon either of them by the sheriff, ex-officio tax collector, of his seizure or of his intention to sell the land in contest, and that for that reason the deed made by the sheriff to La Plaq Realty, Inc. on October 24, 1936, was null. La Plaq Realty, Inc., in its answer to that allegation did not deny specifically that no notice of the seizure or intended sale was served upon Vaughan and Portie. La Plaq Realty, Inc., merely denied generally the allegations in that paragraph of the petition and denied specifically that the deed made by the sheriff, ex-officio tax collector, to La Plaq Realty, Inc., on October 24, 1936, was null or void because the sheriff, ex-officio tax collector, served no notice of seizure or of his intention to sell the property; and La Plaq Realty, Inc., further averred 'that no notice was necessary to be given to the plaintiffs in the injunction [Vaughan and Portie] for the reason that said sale was made under the provisions of Act 161 of 1934,' et cetera. La Plaq Realty, Inc., averred finally that the deed spoke for itself. The only place in the deed where it 'speaks for itself,' on that subject, is that stereotyped expression in the form of the deed 'giving notice to all parties in interest.' There is no indication in that expression that any notice was given to either Vaughan or Portie except the publication appearing in the official journal. Therefore, the expression in the stereotyped form of the deed 'giving notice to all parties in interest' really added nothing to the maxim Omnia rite acta praesumuntur; which presumption--that all things are presumed to have been done regularly--is after all a rebuttable presumption. In this instance the presumption is sufficiently rebutted How unlikely it is that both Vaughan and Portie would have neglected to pay the first maturing installment of $3.04 if either of them had been served with a notice of the seizure...