
    
      NO. 7619
    IN RE, AZTEC LAND COMPANY, Ltd. PRAYING FOR CONFIRMATION OF TITLE.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   Per Curiam;

St. Paul, Judge.

The Motion to Dismiss was overlooked because it was filed only on thw day of argument, was not pressed in the oral argument, and was nontidned again only at the very end of a long brief, where it esoaped our attention.

Be that as it may; the motion is without merit. It is based on four grounds which, for conveníanos we consider in the following ordo’-;

1. That the Supreme Sourt was without Jurisdiction to transfer the oase under Act 19 of 1912. This is in effect an attack on the constitutionality of that not. But upon this wo have already passed in Succession of Huron, No. 7282 of our dooket, wherein we held thut the aot did nothing more than provide a method of lodging an anneal, under certain oiroumstanoes, in n court having jurisdiction: which was undoubtedly within the provinoe and power of a Legislative aot.

2. That the appellant made no affidavit to fluwtify /£«•»+ the transfer under Aot 66 of I9f*- But Aot 19 of 1912, amending and re-enaoting that aot, requires no such affidavit as did the first; and the title of the last aot shows that it was tyf, Intended to contain the whole law on the subjeot of transferring appeals.

8. Shat tha appeal bona «aa aot algaad by tha Surity (aa auoh) ■ But tha but tty aid sign the boat aa attorney fok the appellant; and being aantlonad therein aa aurtty. ha la estopped froa denying hie aurttyahlp. Bee auaoeaelaa of Oarolla, Bo, 7T14 of oar dookst, and authorities there altad.

4. Shat no days of grase are allowed for the transfer; asanlng, that tha Suprene Court did not fin a delay within whloh the appellant alght rsaore the tranaerlpt to thla oeurt, aa It alght (of shouldT) hare done under aeotlon £ of the aot of 1912. Bat the appellant waa aurely entitled to a reasonable tine In whloh to do ao, and only IT daya elapsed froa the finality of the deoree and the filing ef the reoord hare; towit, from April 14th to Kay 1st.

Uoreorer the notion to dlealas waa nade only on Am goth, although the reoord had been in the hands of oounael for the appellee slnoe June 6th; and waa therefore too late for ua eTen to entertain It on the three last grounds. Milano vs Greco, 13 Orleans Appeals 134 (137); Sammons vs N. O. Ry & Light Co, 143 La 731; La. Digest, Verbo Appeal, Section 526.

II.

In holding that Aot 107 of 1898 was applicable to the lnjunet ion sued out by appellee, we but followed Barton ra Burbank, 138 La 999, tha last expression of the Suprene Oourt on that point. She natter before us waa continued Indefinitely on Sorenber 8th 1906, and thereafter no further steps were taken In the proseontlon thereof for nore than fire yean, 1. e. up to Ootober 10th 1912, when the lajunotlon suit waa dlsnlssed ex parte on notion of appellant. In Petit ra Depaaa, Be. 7681 of our dooket, we halt! that Aot 107 of 1898 waa self oporatlra: henos the suit was properly "strloken froa tha dooket on suggestion of a party In Interest." Teutenia Lean &c Co vs Connolly, 133 La 402.

III.

Appellee urge» however, that we should have considered his second injunction, taken oat January 16th 1916, an! not his Injunction of June 14th 1904, dismisses as aforesaid on October 10th 1912.

In this it is possible he may be right. A forosd aban» dormant oan have no greater effect than a voluntary discontinuance, and a tiHiUff discontinúanos oan no more be reg^jadlaaia than a non-suit. It is true that a dead suit cannot be revived, but the plain itself nay always be asserted the anew as long as it has not been judioially rejected. And^only plaoe to sue out the second injunction was the proceeding in which the writ of seizure and possession Issued.

But even so appellee can take nothing thereby. In our opinion (in fine) we said; "On the merits of this controversy there can be ho doubt that plaintiff in injunction has not made out his case; on the contrary all the facts and the law are with the azteo land Co". This was the unanimous conclusion of the judge^after hearing the two oral arguments and considering the four briefs on behalf of appdllee. If we disposed of the case on another point it was because we then deemed it incumbent upon us to do so; but we perceive no error _in our decree.

Briefly, the issue involved is the validity of a tax sale and an Auditor's deed. The state thought and sold, as the property of Robert Simon or Simeon, a lot of ground in square 469 bounded by St. Philip, lumaine, Senois and Bayou St John, measuring 121 feet front on Bayou St John by 160 feet in depth.

The property of whioh the Azteo land Company seeks to gain possession, and of which ### plaintiff in injunction claims ownership, measures according to the petition for injunction,"119 feet front On said Bayou St John, 170 feet in depth on one side and 160 feet or more in depth on the other side; said property forming a perfect triangle;" wfcQrin it ia averred however, that the property ia not bounded by any of the streets mentioned; that Genois and St Philip streets are not opened, and if they ware opened there would be no such depth as 150 feet. But the fact remains that the property does lie entirely within (or almost within) the pro .looted lines of the streets aforementioned; and it was, when sold for taxes in 1885, the property of Robert Simeon, and not of the appellee who purchased from the Heirs of Simeon only in 1900; at which time, 1885 (and even to this date), said Simeon owned no other property in that vicinity, the rest of the larger tract of land which later on figures in this controversy, being then the property of Mrs..Xouis Pondal (Transcript p. 55)

X, Thus, it will be seen that the description in the tax deed to the state, though not perfect, yet very clearly identifies what property belonging to Simeon it was intended to assess and sell for taxes, towit, all that he had purchased from Mrs. Pondal (Tr« p. 56), and was therefore sufficient to convey title thereto. Weber's Heirs vs Martinez, 125 La 663; In re Perrault's Estate, 128 La 454; Vanetta vs Busby, 131 La 681; Soutra vs Armheim, 1 Orleans Appeals 99; La Meadows Co Vs Commercial Security Co, 12 Orleans Appeals 415 and 13 Orleans Appeals 27. And the Auditor's deed oonveys the very same property the State aoquired. Quaker Realty Co vs O'Rourke, 13 Orleans Appeals 144.

2. There was no obligation on the part of the tax oollactot under the acts of 1880 p. 94 and 1882 p. 126, to "correct" the description, unless he "discovered” the inoorreotness thereof, if any; and there is no evidenoe that he did.

3. The auditor wae not reqdirS'd to oolleot the City taxes when ha sold. Lavedan vs Choppin 119 La 1060.

4. The alleged possession of 30 years by Simeon and hla heirs is not proven.

The Motion to Bísalas la therefore Benled, and a Rehearing ia refused.

New Orleans, La, January 12th1920  