Weber's Heirs v. Martinez

• Citation: 51 So. 679,125 La. 663
• Decision Date: 14 February 1910
• Docket Number: 18,034
• Parties: WEBER'S HEIRS v. MARTINEZ. In re MARTINEZ
• Court: Louisiana Supreme Court

51 So. 679

125 La. 663

WEBER'S HEIRS v. MARTINEZ.

In re MARTINEZ

No. 18,034

Supreme Court of Louisiana

February 14, 1910

Rehearing Denied March 14, 1910.

Certiorari to Court of Appeal, Parish of Orleans.

Action by the heirs of Anton Weber against Joseph P. Martinez. Judgment for defendant was reversed by the Court of Appeal and defendant applies for certiorari or writ of review. Judgment of Court of Appeal reversed, and judgment of district court affirmed.

George Montgomery and J. Zach Spearing, for plaintiffs.

James Wilkinson, for defendant.

MONROE J. LAND, J., dissents.

OPINION

MONROE J.

Statement of the Case.

This is an application for the review of a judgment rendered by the Court of Appeal, parish of Orleans.

It appears from the record, which has been forwarded from that court, that on March 13, 1844, Anton Weber acquired by purchase certain real estate in what was then called "Islet No. 40," in the Faubourg Marigny (now the Third district of New Orleans), bounded by New Orleans, St. Bernard, Liberal, and Force streets, the property in question being described as eight lots, with certain measurements, forming, together, a larger lot, having an irregular shape, and occupying the corner of New Orleans and Liberal streets. This suit was brought by four of Weber's grandchildren to annul the tax title under which defendant holds the property. Neither of the plaintiffs ever saw their grandfather or know when he died; the eldest of them (who was 33 years old in August, 1908) testifying in effect, that he died before he (the witness) was born. Plaintiffs' mother, who was Weber's only child, died in 1882, and it does not appear that she or they have ever been in possession of the property, though it does appear that they have never paid any taxes on it, and in fact they testify that they only learned of its existence some five years prior to the giving of their testimony, or, say, in 1903. In the meanwhile, to wit, on March 14, 1885, "Charles Cavanac, state tax collector," executed a notarial act containing the usual recitals with regard to assessment, advertisement, adjudication, etc., in which he declared that, in default of any bid or offer to pay the taxes, he had adjudicated and thereby conveyed to the state for the taxes of 1883 "certain lots of ground and improvements thereon in the Third district of the city of New Orleans, in square 1179, bounded by New Orleans, Liberal, St. Bernard, and Force streets; said lots front on New Orleans street. Which said property was duly and legally assessed in the name of Antoine Weber," etc. (The act by which the grandfather of plaintiffs acquired, it may here be stated, gives his name as Anton Weber.) The act thus referred to was recorded on August 29, 1885. We next have the testimony of defendant to the effect that in 1886 the property was adjudicated to him for the taxes of 1873 to 1878, under Act 82 of 1884, and he produces a certificate from the tax collector of date July 24, 1904, to that effect, to which certificate no importance can be attached since there is no law authorizing its issuance. Defendant, however, further testifies that, whilst he did not obtain a title pursuant to the adjudication mentioned because he did not comply with the required conditions, he nevertheless went into possession of the property by putting a fence around it and renting it out, and that he has maintained his possession up to the present time, though it appears that the fence had disappeared at the time of the trial. We next find a certificate from the State Auditor of date June 12, 1908, as follows, to wit:

"I hereby certify that the records of the Auditor's office show that on Sept. 4, 1903, deed No. 1575 was issued to J. P. Martinez, under the provision of sec. 3 of Act 80 of 1888. This sale transferred to J. P. Martinez the property adjudicated to the state for the unpaid taxes of 1882 in the name of Anton Weber on March 4, 1885, and the property is described as follows: Certain lots of ground and improvements thereon in the Third district of the city of New Orleans in square No. 1179 bounded by New Orleans, Liberal, St. Bernard, and Force streets; said lots front on New Orleans street. The sale is made for the amount of $ 71.90, the amounts being paid as follows: [Then follows a distribution of the total amount paid, to the taxes of 1880 to 1902 and to costs and commissions.]"

The explanation of the fact that defendant produces the Auditor's certificate, instead of the original deed, is that the original deed was lost. Some time after the lapse of three years from the date of the last-mentioned deed, defendant advertised for the heirs of Anton Weber, probably with a view of obtaining a ratification of his title, but they were apparently unable to agree upon that subject, and the only effect of the advertisement appears to have been the institution by them of this suit. They attack defendant's title on the grounds that the property was never assessed; that, if assessed, it was in the name of a dead man; that the owners were not notified; that the description was insufficient; that the advertisement was insufficient; that no taxes were due. There was judgment in the district court in favor of defendant, which judgment was reversed by the Court of Appeal, on the ground that the description failed to identify the property.

Opinion.

Defendant pleads the prescription of three years under article 233 of the Constitution, which declares that:

"No sale of property for taxes shall be set aside for any cause, except on proof of dual...