This is an appeal from a judgment of the district court in favor of Mrs Alma Colvin Hogg, Tay H. Hogg, George B. Hogg, Mrs. Shirley Fuller, George Simonton and Anna Dora Simonton, rejecting plaintiff's demands at his cost, and recognizing the defendants to be the owners of all that part of NE¼ of SW¼ of Section 4, Township 19 North, Range 2 West, North and West of Cypress Creek, Lincoln Parish, Louisiana, in the proportions set forth in the judgment rendered.
The evidence in this case comprises 750 pages of the transcript. We find that our learned brother below was ingenious in the development of the pertinent facts, and exercised a dramatic fullness of particulars in pointing out the controlling decisions applicable to this litigation. Therefore, we will adopt, as our own, the major part of his reasons for judgment.
"Background to this numbered suit is as follows:
"Previously these defendants, Mrs. Alma Colvin Hogg, et al., instituted an action in jacitation in this Court against Dr. John W. Thurmon alleging that they, Mrs. Alma Colvin Hogg, and the heirs of George D. Hogg, were in physical possession of the described property, and that Dr. John W. Thurmon was slandering their title.
"Judgment was rendered by this District Court in favor of Mrs. Alma Colvin Hogg, and the other parties plaintiff in that suit, and against Dr. John W. Thurmon, ordering that Dr. John W. Thurmon assert his claim to the described land within sixty (60) days from the date of the judgment, March 1, 1951, or be forever barred from ever asserting any claim to the property.
"Mrs. Alma Colvin Hogg et al. in this suit excepted to the petition and demand of Dr. John W. Thurmon upon the ground that the petition did not allege that Mrs. Alma Colvin Hogg and the heirs of George D. Hogg were in possession of the land and that, therefore, the petition and demand of Dr. John W. Thurmon must be dismissed for the reason that that averment is a necessary allegation to be made by plaintiff in a petitory action. Such, of course, is the law; however, Dr. John W. Thurmon instituted this petitory action pursuant to the judgment in the jacitation action wherein the Court considered the issue of possession settled by judgment in that suit and overruled the exceptions to the petition of Dr. John W. Thurmon in the petitory action.
"Plaintiff, Dr. John W. Thurmon, bases his claim to title upon:
"1. Severance of title from the public domain by patent.
"2. A partition deed executed by W. F. Brock and others dated February 26, 1917, Conveyance Book DD, Page 40, wherein the parties to that partition deed, as heirs of F. M. McElduff, in dividing property, conveyed to W. H. McElduff property which included the Northeast Quarter of Southwest Quarter (NE¼ of SW¼), Section 4, Township 19 North, Range 2 West.
"3. Tax deed dated June 28, 1930, Conveyance Book 1, page 617, by the Tax Collector for Lincoln Parish, Louisiana, to R. R. Hightower, upon an assessment made in the name of W. H. McElduff Estate for 1929 taxes, covering property which included Northeast Quarter of Southwest Quarter (NE¼ of SW¼),
"4. Deed by R. R. Hightower to J. W. Thurmon, dated October 11, 1933, Conveyance Book 5, Page 535, covering Northeast Quarter of Southwest Quarter (NE¼ of SW¼), Section 4, Township 19 North, Range 2 West.
"Plaintiff pleaded the prescription and peremption of three and five years provided by the Constitution and law of Louisiana. Plaintiff also pleaded the acquirandi cause prescription of ten years.
"Defendants oppose plaintiff's claim to title by:
"1. Severance of title from the public domain by certificate of patent.
"2. Deed dated May 15, 1874, Conveyance Book E, Page 362, from L. G. Kirkland to F. M. McElduff, covering Southwest Quarter of Southeast Quarter and Southwest Quarter (SW¼ of SE¼ and SW ¼) of Section 4, Township 19 North, Range 2 West, Lincoln Parish, Louisiana, to which W. H. McElduff was a witness and made proof of signatures on December 10, 1881. Notation on the record of that instrument is `Original delivered to W. H. McElduff, December 10, 1881, A. J. Bell, Dy. CDC'.
"3. Deed from F. McElduff (F. M. McElduff) to J. A. Colvin, dated November 29, 1878, Conveyance Book D. Page 206, by which F. M. McElduff conveyed to J. A. Colvin land in Lincoln Parish, Louisiana, described as follows:
W. H. McElduff was a witness to the deed by F. M. McElduff to J. A. Colvin wherein the township and range were omitted. W. H. McElduff was also a witness to the deed from L. G. Kirkland to F. M. McElduff upon which there was written the quoted language above, which discloses that the land was in Township 19 North, Range 2 West, as the deed upon which the quoted language was written covers property in Section 4, Township 19 North, Range 2 West. The original deed was delivered to W. H. McElduff.
"All those circumstances disclose that the land conveyed by F. M. McElduff to J. A. Colvin was in Township 19 North, Range 2 West.
"Additionally, W. H. McElduff was one of the parties to a deed executed in 1913, Conveyance Book Z, Page 353, wherein persons styled themselves to be the sole heirs of F. M. and Alice McElduff, and recognized that the land sold to J. A. Colvin was in Section 4, Township 19 North, Range 2 West, for the reason that in excepting property from the effects of the deed recorded in Book Z at page 353, reference was made to land in Section 4, Township 19 North, Range 2 West sold to J. A. Colvin.
"The testimony by the Clerk of Court discloses that F. M. McElduff never acquired any land in any Section 4 in Lincoln Parish other than Section 4 in Township 19 North, Range 2 West.
"4. Act of conveyance by J. A. Colvin to T. B. Colvin dated January 14, 1889, Conveyance Book I, Page 263, conveying property which included
There were two correction deeds relating to that act of Conveyance, the first dated December 31, 1907, Conveyance Book W, page 72, by and between T. B. Colvin and G. D. Hogg, whereby the description was corrected to read as follows:
and the second dated March 5, 1937, Conveyance Book 10, page 474, by and between Mrs. Eva Smith, the sole heir of T. B. Colvin and his wife, Hattie Mitchell Colvin, and G. D. Hogg, whereby the deed, as amended, was further corrected so as to include
"Defendants also plead the acquisitive prescription of ten and thirty years.
"The parties litigate claim under the respective chains of title above outlined.
"The cause for the conflicting chains of title was the inclusion in the partition deed dated February 26, 1917, Conveyance Book DD, Page 40, wherein the heirs of F. M. McElduff included the entire
had been previously conveyed by F. M. McElduff to J. A. Colvin upon which deed W. H. McElduff, the recipient in the partition deed, had been a witness.
"W. H. McElduff was also a witness on the deed from L. G. Kirkland to F. M. McElduff making reference to the land in Section 4, lying North of Cypress Creek, having been sold to J. A. Colvin.
"The heirs of F. M. McElduff in partitioning property included that which had been previously sold by F. M. McElduff.
"The facts disclose F. M. McElduff to be the common ancestor in title of plaintiff and defendants.
"Plaintiff, Dr. John W. Thurmon, in this petitory action must recover, if at all, upon the strength of his own title, and not on the weakness of the title of the defendants. He relies upon the tax sale to R. R. Hightower from whom he acquired, upon an assessment to W. H. McElduff Estate wherein the entire 40-acre tract was sold to R. R. Hightower. That tax deed is attacked by defendants in this petitory action because:
"1. (a) The property was assessed to W. H. McElduff Estate,
"(b) That the property was assessed to a dead man, and
"(c) No notice of the delinquency was made upon anyone, and
"It shall be unlawful for any sheriff, tax collector or their deputies, or
"Plaintiff in the petitory action relies upon Article 10, Section 11 of the Constitution of Louisiana as follows:
"Much of the record refers to the possession of the property by G. D. Hogg, by his widow and heirs since his death, and by their predecessors, John A. Colvin and T. B. Colvin.
"Sometime between 1878 and 1889, J. A. Colvin built his residence on the S½ of NE¼, Section 5, Township 19, North, Range 2 West and during his possession, but prior to 1889, fences were constructed as hereinafter described, the fence being kept up and in use during the possession of T. B. Colvin and G. D. Hogg, his widow and heirs.
"Near the Southwest corner of the North Half of Southwest Quarter, Section 4, Township 19 North, Range 2 West, the road known as the Unionville-Mineral Springs Road crosses Cypress Creek, which creek from that point runs in a generally northeasterly direction across the North Half of Southwest Quarter of Sec. 4. These fences, the evidence discloses, began at the creek near the bridge, or the SW corner of N½ of SW¼, Sec. 4, Twp. 19 N., R. 2 West. The fence continued on the North side of the road running generally Northwesterly across the N½ of SE¼ and S½ of NE¼, Sec. 5, to the residence of said J. A. Colvin and on West to the West boundary line of S½ of NE¼ of Sec. 5, then North along the West line of the S½ of NE¼ of Sec. 5 to, or near, the North boundary of that 80-acre tract and then on East to Cypress Creek. Later, the tram road of the Dubach Mill Co. was built from the North, intersecting said fence at or near the NE corner of S½ of NW¼ of Sec. 4 and continuing on South and crossing Cypress Creek near the center of Sec. 4. After the tram road was built, a fence was built south along the West side of said tram road, crossing under said tram road and continuing South along the East side of said tram road to Cypress Creek at or near the tram trestle. A fence was built from a point where said fence along the North boundary of said 80-acre tract reached said tram, to the Southwest, in an arc, turning back to the Southeast before reaching a fence that ran just North of the North line of N½ of SW¼ of Sec. 4, and to the Southeast to a point at or near the trestle. This fence, along its Southeastern course, was destroyed some four or five years ago by the building of a pipe line, although evidences of it remain. A cross-fence began near the J. A. Colvin residence in S½ of NE¼ of Sec. 5, and ran eastward across the SE¼ of NE½ of Sec. 5 and the S½ of NW¼ of Sec. 4 and on to Cypress Creek. Later, another cross-fence was built from this fence to the South and on to the Creek, being located near the East line of NE¼ of SW¼ of Sec. 4.
"The evidence discloses that a field was cultivated for many years in NE¼ of SE¼ of Sec. 5 and in NW¼ of SW¼ of Sec. 4; that a field was cultivated generally as a sugar cane field in NE¼ of SW¼ of Sec. 4. The fences surrounding these fields, and especially the first field mentioned, and the field to the North made a lane for the passage of cattle from the residence to that part of N½ of SW¼ of said Sec. 4, North of the Creek. That
"The evidence shows that the creek "banks were used generally as the inclosure on the South side. At such places where cattle might get across the creek, tree tops and brush was placed in some of the bends of the creek to keep the cattle from passing out of the pasture and to the South of the creek. Later wire fencing was stretched by the Hoggs across some of the low places in the creek banks.
"The evidence discloses that Mr. Hogg had physical and corporeal possession of the N½ of SW¼ of Section 4, Township 19 North, Range 2 West, North of Cypress Creek, from the date of his deed of January 23, 1903, until his death on June 3, 1949, and that that possession has continued in his widow, and heirs, since that date; that prior to the possession of Mr. Hogg, that J. A. Colvin and T. B. Colvin were in physical and actual possession of that land. J. A. Colvin went into physical and corporeal possession of this property soon after the deed of November 29, 1878, and this physical possession continued in T. B. Colvin and G. D. Hogg, since that time to the present. The possession of each was actual, open and notorious and uninterrupted.
"Counsel for plaintiff asserts that George Hogg did not have any title to the land involved in the litigation when the tax sale was made in 1930, predicating that assertion upon the statement that
That law is subject to exceptions.
"Merritt v. Smith [La.App.], 35 So.2d 817 
"For the purpose of claiming land under the prescription of 30 years, several successive possessors cannot be joined to show a continuous adverse possession, unless there is a privity of estate or contract between the occupants".
"Beam v. Dudding, [La.App.], 43 So.2d 73 
"It is well established in our jurisprudence that for the purpose of claiming land under the prescription of thirty years, several successive possessors cannot be joined to show a continuous adverse possession unless there is a privity of estate or contract between the occupants. The reason for this rule is that the several acts of adverse possession are construed as nothing more than a series of independent trespasses and on the termination of each of those acts possession returns by the operation of law to the right-owner of the immovable."
"There was privity of estate and contract between F. M. McElduff and J. A. Colvin by virtue of the deed dated November 29, 1878, Conveyance Book D, Page 205, covering
which land description was interpreted by F. M. McElduff and by W. H. McElduff, a witness to the deed, as covering property in Township 19 North, Range 2 West, by the notation on the deed from L. G. Kirkland to F. M. McElduff, which notation was dated the same day as the date of the deed from F. M. McElduff to J. A. Colvin, and, additionally interpreted by W. H. McElduff and the other heirs of F. M. and Alice McElduff to cover land in Township 19 North, Range 2 West by reference in the deed recorded in Conveyance Book Z, page 353 and identified as "Defendant 8".
"There is privity of estate and contract between J. A. Colvin and T. B. Colvin by
There is privity of contract between T. B. Colvin and George D. Hogg by the deed dated January 23, 1903, Conveyance Book S, Page 369, covering land which included property therein described as
as corrected by correction deed between T. B. Colvin and George D. Hogg dated December 31, 1907, Conveyance Book W, Page 72, wherein the description was corrected in part, and correction deed between G. D. Hogg and Mrs. Eva Smith, who was the sole heir of T. B. Colvin and Hattie Mitchell Colvin, his wife, dated March 5, 1937, Conveyance Book 10, Page 474, correcting the land descriptions in the two prior instruments so as to disclose that the prior deeds should have covered
The evidence discloses that it was the intent of the parties to the 1903 act of conveyance to cover and include the land last above described. At any time after the execution of the deed from T. B. Colvin to George D. Hogg, dated January 23, 1903, George D. Hogg had a right and cause of action against T. B. Colvin to have the land description corrected so as to cover and include the land last above described.
"There was privity of contract between those contracting parties relative to the land last above described. The description used in the 1903 deed by T. B. Colvin to George D. Hogg was intended to cover the property last above described and while it was not entirely accurate, it did refer to land North of Cypress Creek in Section 4, Township 19 North, Range 2 West. The subsequent instruments disclose the intent of the parties.
"The cases examined where one possessor was not permitted to tack on to the prior possession of another do not disclose any contractual relationship between the possessors relating to the involved land.
"As the organ of the Court in Beam v. Dudding [La.App.], 43 So.2d page 73, said:
"The occupancy and possession of T. B. Colvin and of George D. Hogg cannot be said to be a series of independent trespasses for the very obvious reason that they possessed under deeds, the description in the deed to Hogg not being artistically drawn, yet a right and cause of action existed in favor of Hogg for the reformation and correction of the land description.
"Additionally, when the Court said that at the termination of each of the acts of possession that possession returned to the rightful owner of the immovable, it is easily determined that the possession of George D. Hogg and his authors in title, and the prior possessors of the involved land, does not fall within that language, for the reason that if possession returned to the rightful owner, the rightful owner was the author in title who was obligated to correct the land description either by correction deed or against whom a cause and right of action existed to reform and correct the land description, which obligation was in favor of George D. Hogg, the last vendee in the chain of title, and
"Ford v. Ford [La.App.] 34 So.2d 301 
"In the case styled Buckley v. Catlett, 203 La. 54, 13 So.2d 384, the defendant sought to assert title to the involved property by the acquisitive prescription of thirty years by tacking on to his possession prior possessors of the property in dispute. Neither the deed to Catlett nor to any of the persons whose possession Catlett sought to use in establishing the thirty years possession described, or referred to in any manner whatsoever, the involved property. To the contrary is the case at bar.
"The deed to Hogg in 1903 referred to property in Section 4, North of Cypress Creek, the description being subject to some ambiguity, but the description was corrected by correction deeds disclosing the property intended to be affected and covered by the 1903 deed to Hogg.
"There was privity between Hogg and his authors in title and prior possessors of the property in litigation, sufficient upon which to establish title in George D. Hogg by the acquisitive prescription of thirty years prior to the date of the tax sale.
* * * * * *
"The jurisprudence discloses that this" constitutional "prescription or peremption does not run when the owner at the time of the sale continues to remain in actual possession of the property, for his remaining in possession is a protest against the tax title and relieves him of the duty of going out to seek his adversary to attack him. * * *"
"Counsel for plaintiff in this petitory action cites law having to do with the constitutional peremption. We will refer to them.
"We find the case of Kivlen v. Horvath, 163 La. 901, 113 So. 140 , that the Supreme Court held that the prescription or peremption was not applicable where the owner remained in actual possession of the property. Quotation from that case is as follows:
"`The prescription or pre-emption pleaded is not applicable, and hence is of no benefit to the tax purchaser or to those to whom he has sold, when the
"Similarly we find in the case of Pierson v. Castell Land & Harbor Company, Inc., 159 La. 158, 105 So. 274 , the following:
"Plaintiff refers the Court to Close v. Rowan, 171 La. 263, 269, 130 So. 350 , wherein the peremption provided by the Constitution was successfully plead against a tax sale to a Deputy Tax Assessor. The case is readily distinguished from the case at bar. We quote from Close v. Rowan:
"The distinguishing feature between Close v. Rowan and the case at bar is the fact that in the Close v. Rowan case,
"Meshell v. Bauer, 215 La. 619, 41 So.2d 237 , is cited by counsel for plaintiff as holding that,
That case is not in point in the involved litigation for the very apparent reason that in that case plaintiff
"* * * The holding in the Meshell v. Bauer case is to the effect that a valid tax sale made in the name of the record owner places in the tax purchaser a superior title to one claiming by virtue of thirty years acquisitive prescription.
* * * * * *
"A salient point in considering the constitutional peremption relative to tax sales is whether or not the peremption provided has commenced to run. The cases are uniform in holding that the peremption does not run so long as the owner of the property sold at tax sale remains in corporeal possession.
"The plaintiff in the Close v. Rowan case, 171 La. 263, 130 So. 350  (cited by plaintiff), who sought to have the tax sale declared invalid was not in possession of the property sold at the tax sale.
Plaintiff cites Hollingsworth v. Schanland, 155 La. 825 [99 So. 613]; Marque v. Kolwe, 5 La.App. 541; Progressive Realty Company, Inc. v. Levenberg [177 La. 749] 149 So. 444, to the effect that the failure to give notice of delinquency and intention to sell for unpaid taxes was cured by the peremption provided in Article 10, Section 11 of the Constitution. Neither of those cases is in point from the factual situation.
"In the Hollingsworth v. Schanland case, plaintiff was the tax debtor and sought to have that tax sale decreed invalid.
In this case, not only was the person who sought to have the tax sale decreed invalid not in possession, but actually persons who claimed by virtue of the tax sale had exercised physical possession through their mineral lessees.
"In the case of Marque v. Kolwe, 5 La.App. 541, cited by plaintiff, as above stated, the Court recognized that the peremption did not run against the owner in actual physical possession.
"That law is also recognized in the case cited by plaintiff:
"`But it is well settled that the only character of possession on the part of the owner, whose property has been sold for delinquent taxes, that will prevent
"The other cases cited by counsel for plaintiff are easily distinguished from the case at bar.
Counsel for plaintiff cites Board of Commissioners for Fifth Louisiana Levee District v. Concordia Land & Timber Company, 141 La. 247 [74 So. 921, 922], for the statement that the constitutional peremption cures all irregularities and nullities in tax assessments and sale except on proof of dual assessment or payment for the taxes for which the property was sold prior to the date of sale. That case is similarly distinguishable from the case at bar. The first sentence in the opinion in that case is as follows:
"The title of Act 38 of 1902 is as follows:
"Likewise, counsel for plaintiff cites Atchafalaya Land Company v. F. B. Williams Cypress Company, 1920, 146 La. 1047 [84 So. 351, 353], for the statement that the constitutional peremption applies to a tax sale assessed in the name of one who is not the owner of the property even though the sale was made without notice to the owner. The person pleading the peremption was in actual possession of the land involved.
"The next case cited by plaintiff, Hollingsworth v. Schanlan, 155 La. 825 [99 So. 613], has been referred to hereinabove disclosing that the plaintiff who sought to have the tax sale decreed invalid was not in possession of the involved property.
"Byrne v. Commercial Security Company, 7 La.App. 667, cited by counsel for plaintiff, is to a similar effect, recognizing that there are additional exceptions to those enumerated in Article 10, Section 11 of the Constitution.
"Kaufman v. Jackson, [La.App.] 55 So.2d 39 
"It is my opinion that the possession of G. D. Hogg could be tacked on to possession of T. B. Colvin and J. A. Colvin, and that G. D. Hogg was the owner of the involved property at the time of the tax sale of 1930. Mr. Hogg having maintained his physical possession until his death, and his widow and heirs having continued that possession to the present, it is my opinion
* * * * * *
"Plaintiff has never been in physical possession of the land involved in this suit.
"The correction deed of March 5, 1937, Conveyance Book 10, Page 474, from Mrs. Eva Smith, the sole heir of T. B. Colvin, and his wife, Hattie Mitchell Colvin, to G. D. Hogg, accurately and correctly describes the porperty to be
"George D. Hogg was in physical and corporeal possession of all that part of the N½ of SW¼, Section 4, Township 19 North, Range 2 West, lying North of Cypress Creek on that date. His physical and notorious possession continued until his death, after which his widow and heirs maintained and continued that physical and corporeal possession.
* * * * * *
"* * * the equities are all with the defendants in the petitory action.
"The chain of title of the defendants emanates, so far as this litigation is concerned, plaintiff having alleged that L. G. Kirkland had acquired the property by mesne conveyance from the patentee and that allegation having been admitted by defendants, from L. G. Kirkland by the deed of May 15, 1874 to F. M. McElduff who sold the involved property in 1878 to J. A. Colvin, but in which deed the township and range were omitted.
"Interpretative instruments to which F. M. McElduff and W. H. McElduff were parties disclose that the property was in Township 19 North, Range 2 West. Ross C. Neill, Clerk of Court, testified that F. M. McElduff never owned any property in Section 4 in Lincoln Parish, Louisiana, except in Section 4, Township 19 North, Range 2 West.
"The heirs of F. M. McElduff in the partition deed of 1917 included land that had been previously sold by their ancestor. The partition deed did not convey title, partition deeds being declaratory of title as distinguished from acts of conveyance transferring title.
"Section 11 of Article 10 of the Constitution is, in part, as follows:
"Jackson v. Bernstein, [La.App.] 39 So.2d 120 .
"Plaintiff, Dr. J. W. Thurmon, was not the tax purchaser. We think the quoted portion of the Constitution and the jurisprudence as announced in the Jackson v. Bernstein case controls, and that defendants are not obligated to plaintiff."