GARRETT v. ERNEST

BLANCHE, Judge.

This appeal arises out of a petitory action brought by William C. Garrett, Frank B. Wood, Sr., Frank B. Wood, Jr., and John D. Ponder, seeking to be declared owners of a certain tract of land located in St. Tammany Parish and to have cancelled certain deeds and mortgages filed in the Mortgage and Conveyance Records of that parish.

An answer and reconventional demand was filed by some defendants which assailed plaintiffs' alleged title and claimed they were the lawful owners of the tract in question as shown by the public records and by virtue of the acquisitive prescription of ten and thirty years. From a judgment dismissing their claims, plaintiffs have appealed. We affirm.

The suit involves a tract of land containing 120 acres which was originally owned by Hamp Robinson by virtue of a patent from the United States dated November 23, 1892, and described as follows:

The appellants pleaded their title as follows:

Defendants are numerous individuals who have held, or who now hold, various real interests in the property and whose interests were obtained, through mesne conveyances, from the original patentee, Hamp Robinson.

The trial judge found that Hamp Robinson lived on and farmed the property from the time he acquired it in 1892 until his death, the date of which is not in the record. During this period Robinson moved his house three or four times, and after he died, his widow continued to live on the property until her death. We note that the testimony of two witnesses also established that some of the grandchildren of Robinson still reside on parts of the tract. The evidence indicates, and the trial court found, that most of the defendants live on the tract in question. Having found the defendants to be in possession, the trial judge held plaintiffs must make out their title good against the world under Article 3653 of the Louisiana Code of Civil Procedure.

Plaintiffs based their claim of ownership on two separate tax sales, one to George Gause (Gause deed) on June 23, 1895, and one to Salmen Brick and Lumber Company (Salmen deed) in 1932.

The Salmen deed was executed on December 10, 1932, for unpaid taxes assessed in the name of Hank Robinson on property described as:

The defendants objected to the admission of this tax deed on the grounds that on its face it bore no relation to the property in controversy since it described property apparently in another section and township and there was no proces-verbal to indicate an error had been committed. The trial judge postponed ruling on this objection and later found it unnecessary to do so in rendering his judgment.

The Gause deed was executed on June 22, 1895, after a sale for unpaid taxes for the year 1894 assessed in the name of "Hemp Robertson" on property described on the tax rolls as "120 [acres] Land & imp. T. 9. R. 14 E." The deed described the property being sold on that day as belonging to Hamp Robinson and being:

Plaintiffs trace their title from this sale to a quitclaim deed executed by Gause's heirs to them in 1966. They also claim that this title is unassailable, based upon a judgment in an Action to Quiet Tax Title brought under LSA-R.S. 47:2228 (hereinafter referred to as "confirmation suit") entitled "William C. Garrett, Frank B. Wood, Sr., Frank B. Wood, Jr., and John D. Ponder vs. Hamp Robinson and Jane Scott Robinson and/or Their Heirs," No. 26,611, obtained in the Twenty-second Judicial District Court for the Parish of St. Tammany, which judgment is now final.

Defendants resisted plaintiffs' claim citing, inter alia, the following:

(3) It may attack the Gause deed because

The trial judge held that the confirmation suit was an absolute nullity and that it was an essential link in plaintiffs' chain of title, and therefore, dismissed plaintiffs' claims since they were unable to show an unbroken chain of title back to the sovereign.

It is unclear whether the trial court declared the confirmation suit an absolute nullity under Article 2002 for lack of service and citation or a relative nullity under Article 2004 for fraud and ill practices. In the petition in that suit, the appellants herein alleged that they:

"exercised due diligence to discover the whereabouts of defendants [Hamp Robinson and Jane Scott Robinson] and/or their heirs and the existence or whereabouts of same are unknown." (Petition in Suit No. 26,611)

The petition further alleged that "the * * * described property is unimproved and vacant" and prayed that a curator ad hoc be appointed to represent the absent defendants. The trial judge, in his opinion, said:

The court made no determination as to the validity of the tax sale itself.

Appellants assign inter alia the following as errors by the trial court.

BURDEN OF PROOF

With regard to petitory actions, LSA-C.C.P. art. 3651 provides:

LSA-C.C.P. art. 3653, in pertinent part, provides:

It is well settled that when the defendant is in possession, the plaintiff must rely on the strength of his own title and not the weakness of that of his adversary, and the title of the defendant is not at issue until plaintiff has proved valid title in himself, e. g. Montgomery v. Breaux, 297 So.2d 185 (La.1974). A plaintiff makes out his title when he proves his ownership either by an unbroken chain of valid transfers from the sovereign or an ancestor in title common with the defendant, or that he has acquired the property by the prescription of ten or thirty years. Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974); Bishop Homes, Inc. v. Devall, 336 So.2d 313 (La.App. 1st Cir. 1976), writ denied 338 So.2d 1155 (La.1976). Finally, if the plaintiff should fail and be unable to make out his title good against the world, his demands must be rejected even if defendants have no title to the property; e. g., Osborn v. Johnston, 308 So.2d 464 (La.App. 3rd Cir. 1975), affirmed, 322 So.2d 112 (La.1975).

The trial judge found that most of the defendants were in possession of the tract. Our review of the evidence indicates that at the time of this suit, of the twenty-six or so witnesses holding title to various parts of the tract who testified, only two could be classified as not being in possession.1 As to the remaining areas of the original tract which were never alienated by Hamp Robinson or his heirs, testimony of two credible witnesses established that several of Hamp Robinson's grandchildren have continued to live on the property since Hamp Robinson's death. We, therefore, find no manifest error in the finding by the trial court that defendants are in possession.

GAUSE DEED

Confirmation Proceedings

Appellants claim the trial court erred in annulling the judgment obtained by them in the Action to Quiet Tax Title entitled "Garrett v. Hamp Robinson, et al." The applicable statute relied upon by defendants is LSA-R.S. 47:2228, which provides:

Appellants claim that the law does not require them to name in their suit, nor make service or notice upon, any heirs or assigns of the original tax debtor and rely upon Stockbridge v. Martin, 162 La. 601, 110 So. 828 (1926). It is true that in Stockbridge the Supreme Court recognized that:

However, in Webb v. Shiflett, 168 La. 920, 123 So. 620, 621 (1929), the Supreme Court implied that there may be times when an heir or assign should be made a party to such an action:

We believe that one such time is when the existence and whereabouts of heirs or assigns of the former proprietor and tax debtor are within the actual knowledge of the person or persons seeking to confirm the tax title, or the heirs' or assigns' existence and whereabouts are so easily determined that it can be inferred that no reasonable attempt at all was made to locate the same. This is especially true where the period of time between the tax sale and confirmation proceeding is so lengthy that it may be presumed that the original owner is dead. Otherwise, the confirmation procedure would be an exercise in futility since it is designed to cut off defenses of the tax debtor, or one claiming under him, for defects in the tax sale not cured by peremption.

The confirmation suit was filed on May 31, 1967, and contained allegations by the appellants herein that "petitioners have exercised due diligence to discover the whereabouts of defendants and/or their heirs and the existence or whereabouts of same are unknown" and that "the above described property is unimproved and vacant." However, these allegations are contrary to certain affidavits of death and heirship dated October and November, 1966, filed in evidence by appellants in that suit containing statements by the following heirs of Hamp Robinson: Ike Robinson (son), Ike Robinson, Jr. (grandson), Will Ducre (grandson), Victoria Ducre Parker (granddaughter), Edward Ducre (grandson) and Alice Ducre Nicholas (granddaughter).

Even more amazing in light of the allegations that appellants were unable to locate any heirs of Hamp Robinson and the property was vacant and unimproved, is that William C. Garrett testified at the confirmation proceeding that he had located quite a few of the heirs and had acquired quitclaims from quite a few of them. In addition, the testimony by two witnesses at the trial herein established that a number of the heirs still reside on the property. These include, among others, Victoria Ducre Parker and Alice Ducre.

The evidence is overwhelming that at the time the confirmation suit was filed appellants knew of the existence and whereabouts of many of the heirs of Hamp Robinson. At least two of them still reside on the original tract.

It is well settled that the absolute nullity of a judgment may be pled by any party against whom it is sought to be enforced. Warner v. Garrett, 268 So.2d 92, 96 (La.App. 1st Cir. 1972), writ denied, 263 La. 987, 270 So.2d 123 (1972). Thus, plaintiffs' failure to comply with R.S. 47:2228, not filing suit against a former proprietor or proprietors of the property or some one claiming to have acquired from or through such proprietor or proprietors, renders the judgment a nullity.

Though one heir, Elijah Cooper, was served with the confirmation suit, he was not a named defendant in the suit. In light of all the attending facts, we find that service on an unnamed defendant is of no significance.

We, therefore, conclude that the trial judge committed no error in annulling the confirmation judgment asserted by appellants.

Peremption

This Court recently reviewed the jurisprudence relative to what defects in a tax sale are barred by the three- and five-year peremption of Article 10, § 11 of the Louisiana Constitution of 1921 in Warner v. Garrett, supra:

"* * * It is well established that certain nullities attending tax sales are relative and are cured by the three and five year prescriptive periods provided by LSA-Const. art. 10, Sec. 11, and the statutes enacted by the legislature from time to time. Among these are failure to properly advertise (Robinson v. Williams, 45 La.Ann. 485, 12 So. 499): lack of notice (Skannal v. Hespeth, 196 La. 87, 198 So. 661); and sale for taxes which have prescribed (Fellman's Heirs v. Interstate Land Co., 163 La. 529, 112 So. 405). Defects which have been held to render tax sales absolutely null, and therefore, incurable by prescription, include prior payment of taxes and dual assessment (Gremillion v. Daigrepont, La.App., 47 So.2d 363); lack of assessment (Tillery v. Fuller, 190 La. 586, 182 So. 683); inadequate description (Yuges Realty v. Jefferson Parish Developers, 205 La. 1033, 18 So.2d 607), and fraud (Wall v. Hamner, 182 La. 1049, 162 So. 769)." (268 So.2d at 97)

Since no valid confirmation judgment has been rendered, those defects which render a tax sale absolutely null may still be raised by defendants herein to defeat the tax title asserted by the appellants. Warner v. Garrett, supra.

Defendants-appellees claim the description of property contained in the assessment in 1894 was so vague as to constitute no assessment at all against the property of Hamp Robinson and no valid tax sale could occur as a result thereof. We agree.

We note three elements which combine to render the assessment invalid.

The property description on the 1894 tax rolls reads as follows: "120 [acres] Land & imp. T. 9. R. 14 E." The description fails to designate what parcels of land in the listed township and range are being assessed. Also, the description contains no section number and designates the property as in Township 9, whereas Hamp Robinson's property was located in Township 8. In addition, the property was assessed in the name of "Hemp Robertson" as opposed to "Hamp Robinson." Finally, there is no curative evidence in the record to indicate that the above property assessment referred to the property of Hamp Robinson in Section 34, Township 8, Range 14.

The Louisiana Supreme Court noted in Jackson v. Irion, 196 La. 728, 200 So. 18 (1941), the following:

The description, "120 [acres] Land & imp. T. 9. R. 14 E.," is vague and indefinite in that it fails to state in what section the property is located. Further the description is defective in that the property assessed is in a different township than the property later sold for the unpaid taxes.

The above defects in the description are not conclusive that the assessment was invalid, Jackson v. Irion, supra, nor is the fact that the assessment was made in the name of "Hemp Robertson," whereas the property sold belonged to Hamp Robinson. The appellants could have cured these defects by evidence outside the tax rolls that the property in question was indeed the property sought to be assessed. This the appellants failed to do.

From the evidence in the record we are unable to conclude that the property sought to be assessed was the 120 acres owned by Hamp Robinson by virtue of a patent issued in 1892 and sold at the tax sale to G. H. Gause.

Appellants claim the defective assessment is cured by the notation on the assessment roll opposite the assessment, which reads:

We disagree. This notation was clearly written in by someone after the tax sale was completed and is not probative of whether the property sought to be assessed was actually the property sold.

We, therefore, conclude that the tax sale upon which appellants claim title was an absolute nullity due to lack of assessment and this defect was not cured by peremption of three and five years.2

Prescription

Appellants' last claim is that the trial judge erred in not sustaining their plea of prescription of ten years under LSA-R.S. 41:1328. We disagree. LSA-R.S. 41:1328 provides:

The prescription of R.S. 41:1328 is inapplicable if the original owner paid taxes any one year within ten years prior to July 7, 1904, or within three years thereafter, or had actual physical adverse possession of the property on July 7, 1904. Neither party sought to introduce the tax records for the period between 1895 and 1910. However, the trial judge concluded in his findings of fact that Hamp Robinson possessed the property from the time the patent was issued until his death, and his heirs continuously thereafter. By implication, this means Hamp Robinson was in possession of the property on July 7, 1904. We find this conclusion to be a reasonable inference from the evidence before the trial judge and not manifestly erroneous.

The evidence shows that Hamp Robinson recorded his patent on November 7, 1905. We believe this to be a clear indication that as of that time he had not abandoned his interest in the property. Maurice Parker, 76 years old at the time of trial, testified that Hamp Robinson had lived on the tract in question for as long as he could remember. He recalled that Robinson moved his home three or four times to different locations on the tract prior to 1933. This Court was impressed with the great familiarity that this witness demonstrated with regard to the Robinson family and the tract itself. The Reverend Tillotson, 66, also testified that he personally knew Hamp Robinson, that he purchased property for his church from Robinson in 1933, that Robinson lived on and farmed portions of the tract for as long as he could remember, that no one ever questioned Robinson's ownership of the land and that at the time the church was built (1933) Robinson's house had been there a long time.

We note also that Robinson exercised various acts of ownership during this period. In 1918 Robinson sold a portion of the tract to Gilbert and Anna Ernest; he sold another portion to Nelson Fields in 1920, just to name a few.

We believe that based upon the testimony of the witnesses concerning Robinson's living on the property and the general community attitude regarding his ownership at that time, together with the evidence of various acts of ownership contained in the public records, the trial judge could have reasonably concluded that Robinson possessed the property from the time the patent was issued.

Conclusion

The trial judge concluded that "plaintiffs have not proved their title to subject property good against the world." (Record, P. 453). In examining the evidence, we find no error in this conclusion. We conclude that appellants' claim to ownership based upon the Gause Tax Deed must fall, since that deed is based upon a tax sale without assessment which is an absolute nullity. Appellants' chain of title contains a break in its first link, the Gause Tax Deed, which was neither ratified by the confirmation proceeding nor rectified by peremption and/or prescription. Therefore appellants have failed to meet their burden of proof.

SALMEN DEED

On appeal, appellants have not pressed their claim to ownership based upon the Salmen deed. In brief, counsel for appellants indicated they would rely "primarily" on the Gause deed. We note, in passing, however, that the Salmen deed cannot be relied upon to establish ownership to the Robinson tract since the tax deed to Salmen refers to an entirely different parcel of property located in Section 33, Township 9, Range 14, and there is no proces-verbal contained in the public record to indicate any error was made in that description. This conclusion is further supported by tax receipts introduced by the defendants that Hamp Robinson paid taxes on his tract for many years following that sale.

For the above and foregoing reasons, the judgment of the trial court is affirmed, appellants to pay all costs.

AFFIRMED.