
    PURITAN CO. LTD. versus MARGARET ARDILL
    
    NO. 8,235
    
      COURT OF APPPEAL PARISH OF ORLEANS
    '..’Xiil.u: A. XII, JUROR:
    June 5th, 1922.
    
      
    
   BY: WILLIAM A. BEIL, JUDGE:

She judgment in this ease, from which defendant, Miss Margaret Ardill has appealed, perpetuates the injunction herein issued and recognizes the plaintiff, puritan land Company, limited, to be in possession, by perfect ownership, of the following described property:

"lots 9 and 10 of square 1209, situated in the l'hird District of this City, bounded by Frenchmen, II. Rocheblave, formerly Virtue, Elysian Fields, -and Borth Tonti, formerly Force Streets., lot llo, 9 forms the corner of Frenchmen and Virtue Streets, and measures 60 feet front on Frenchmen Street, by 120 feet in depth; lot Bo. 10 measures 60 feet front on Frenchmen St., by 120 feet in depth, and adjoins lot Ho, -9, all of said measurements being French measure."

She judgment further decrees that plaintiff's demand for damages as well as defendant's reoonventional demand 'or 'damages against plaintiff and his surety on the injunction bond, be all rejected and dismissed at defendant's costs.

These proceedings arise from an extended controversy between the aforesaid j,arties as to ownership in the above described property, and has culminated in plaintiff's application for a writ of injunction against defendant to enjoin her and others from exercising any rights of ownership or possession over said property, and from entering' or trespassing thereon. There Is further prayer for damages ajad for recognition and maintenance of plaintiff in perfect ownership of said property.

Miss Margaret Ardill is the only one of three parties made defendants herein, who appears, or answers plaintiff's demand. She pleads the general denial and further answering, avers that persons other than plaintiff have unlawfully trespassed upon her property for the purpose of taking-possession thereof¡denies that she has interfered with the ownership or possession of the property described in plaintiff's petition, but that in fact, both plaintiff and its vendor, the Quaker Realty Company, have interfered with her ownership and possession in property owned by her and which she describes as follows:

"Sots 1, 2, 3, 4, measuring 128 feet front on Frenchmen Street, by 128 feet in depth, more or less, and front on Roefceblave Street, or Virtue Street, in Square Fo. 1209."

Defendant's answer sets forth the various acquisitions by which she claims title to the above described property, and further avers t3:at the four lots of ground, which plaintiff bought through its various vendors from the State of Louisiana, are not the same lots that she, defendant, owns, and which she acquired from J. 1. HartInez, who, in turn, acquired from the State Auditor, on October 10, 1899.

Defendant further avers that if the lots aoquired by plaintiff are the same as the ones claimed by her, then the Auditor's deed to llartines, in 1899 divested the State of Louisiana forever of the said property, so that the State could not have sold ll.e said identical property on Hovember 10, 1902, to plaintiff's authors in title, to wit, the Aztec Land Company.

She respective acta of trespass charged by the parties to this controversy, the one against the oil.or, have been rightly disregarded by the trial court. Vhe evidence before us shows that each of the litigants have resorted to such acts, however reprehensible, as a means of developi.nr the sole issue or question in this case, to it: Diu the State of Louisiana, by tv<0 certain auditors' deeds, hereinafter referred to, dispose of the same property to two different vendees, through one of which the plaintiff, and through the other of which, tie defendant, traces title?

The complicated reoord before us shows that the State Auditor sold to 3. P. Martinez, on the 10th day of Ootober, 1899, the following described property:

"lour certain lots of ground and improvements thereon, in the Third District, Square Ro. 1209, bounded by Frenchmen, Virtue, Elysian Fields and Force streets, said lots' measuring 128 feet on Frénchmon Street, by 120 deep, adjudicated to the State for taxes 1883, assessed in name of Emma Sanchez."

It further appears, that the State Auditor sold to Aztec land Company, ltd,, on the loth day of November, 1902, the following described property:

"Certain lots of ground and improvements thereon, in the Third District of the City of New Orleans, in Square Ro, 1209, bounded by Frenchmen, Elysian Fields, Force and Virtue Streets; said lots measuring 128 feet front on Frenchmen Street, by 128 feet in depith, adjudicated to. the State for taxes 1882, assessed in the name of John Jackson."

From the above descriptions of the properties conveyed by the two aforesaid auditors' deeds, it is apparent that neither deed definitely locates the said properties, except to declare that the total'of the lots conveyed measures 128 feet on Frenchmen Street, in said square,.without designating their locality in respect to other lots, corners or streets, in Square 1209, of the Third District.lt is therefore necessary in order t-o definitely locate in Square 1209 each of the above conveyances by auditors' deeds, to ascertain, if possible, from the reoord before us, whether other recorded conveyances' subsequent 'or prior to the Auditors' Deeds clearly identify the acquisitions by either Martinez or the Aztec land Company, with the property now in litigation.

Plaintiff, through its author in title, the Quaker Realty Company, by proceedings Ro. 78075, Civil District Court, parish of Orleans, and defendant, through her author in title, J. P. Martinez, by proceedings Ro. 76020, of'the same court, obtained judgments confirmatory of their respective tax titles on the same day, to v/it, FeDruary 9th, 1906, under provisions of Act 101 of 1898,

We find that in the above proceedings, Ho. 78075, the judgment confirms title in favor of Quaker Realty Company to the following described property:

"lot Ho, 9 forming the corner of Frenchmen and Virtue Streets, measuring 60 feet front on Frenchmen Street, by 120 feet in depth, on Virtue Street; lot lío. 10, measuring 60 feet front on Frenchmen Street, by 120 feet in depth, all in French measure."

We also find in these sane confirmation proceedings, from deeds offered by the Quaker Realty Company, which deeds are re-offered in the proceeding now before us, that the auditor's deed to the Aztec land Company contains only the indefinite description which is heretofore referred to, but, this auditor's deed relates to property involved in a tax sale for the taxes of the year 1882, due by John Jacks on, whose acquisition was from Andrea Dimitry, under date of June 23, 1830, by act before Carlile pollock, Rotary Public. In this latter deed of Dimitry to Jackson, the property acquired by Jackson and sold to the state for taxes due by Jackson, is described as follows:

"Two lots of ground situated in the Hew Suburb Marigny belov? this City designated as numbers Hiñe and Ten in Islet-Humber Hinety-Six on an Original Plot made by the City Surveyor on the First. Instant deposited in my current Register by act made at the request .of the said Paul Pandely on the Eighteenth Instant the first fronting the CORHER of Francois and Vertu Street having Sixty Feet front on the former street by One Hundred and Twenty deep on the latter, the Second measuring Sixty Feet front on Francois Street by One Hundred and Twenty Feet Deep between Force and Vertu Streets."

The description just given of the above described property clearly establishes, beyond all doubt, that the property sold by the Auditor to the Astee land Company, and by them to the Quaker Realty Company, and by it to the plaintiff, iras, as far back as the year 1830, definitely located on the corner of Frenchmen and Virtue (now Rocheblave) Streets. The measurements of this property, by its frontage on Frenchmen Street, as well as its depth, between parallel lines, corresponds in every detail to the description of the property of which plaintiff claims it is owner, not only by virtue of the confirmation proceedings, but by possession through its author in title, back to the year 1830.

On the other hand, this court has not found it possible, by most careful research, to trace defendant's auditor's title, though same was subsequently confirmed in the. proceedings ilo, 76020, of the Civil District Court, for the Parish of Orleans, so as to identify it with certainty as property situated on the corner of Frenchmen and Rocheblave Streets, in Square 1209. The confirmation proceeding just •mentioned, brought in the name of John x. Martinez, does not contain in its judgment a title in favor of Martinez to any other extent than to state that the property is situated in Square 1209, and measures 128 feet front on Frenchmen Street. Such description by no means definitely places the Esrtinez property, subsequently acquired by defendant from Martinez, and his other transferee, to wit, Bruen, wife of Daiibert, The three acts of 3ale passed before William Árdill, Rotary Public, showing the acquisition just mentioned, failed to describe the property claimed by defendant herein as property located on the corner, or adjacent to the corner of Frenchmen and Rocheblave Streets. The title of the defendant, acquired directly and by mesne conveyance from Jos.,P. Martinez, described the property as being lots 1 to 4, measuring each 01' 11" 5'" front on Frenchmen Street, by a depth between equal and parallel lines of 187' 10" 5" 1, on a plan drawn by Geo. de Armas, Surveyor, dated October 8, 1906.

The plan of de Armas does not appear in the record before us, and in fact, there are no documents of evidence which in any manner locate the defendant's property as being on the corner of Frenchmen and Virtue Streets, e::cept the certificate of the Tax Collector, dated October 9, 1899, to the effect that all taxes have been paid up to October, 1899, and except another document, or application, by J. 1. Martinez, addressed to the Auditor of iublie Accounts, in Baton Rouge, for the purchase of property located on fe corner of Frenchmen and Virtue Streets, in Square 1809, sold for unpaid state taxes of 18^2.

The evidence shews that defendant offered various deeds to be produced and filed, but which, in fact, appear not to have been filed in this proceeding. Of course, their absence precludes us from the opportunity of identifying by original deeds, if such identification vero possible, tho property alleged to have been bought by llartinoz, v.-ith that property now located on the corner of Frenchmen and Virtue (or Rooheblave) streets.

”fe leave the record in this proceeding, after most careful and painstaking research, with tho definite conclusion that the plaintiff's title is certain and unequivocal, and can be traced from plaintiff's possession through an uninterrupted chain of title bad: to the year 1830. Plaintiff's title, dated October 16, 1918, and that of John Jache '•a, dated June 23, 1830, clearly locates the property under discussion, at the corner of Francois and Vortu, (or Rooheblave) aireóte. It is true, as the record shows, that the tax title convoying property assessed and sold for taxes in the name of John Jackson, to the State of Louisiana, under date of March a, 1886, si eve that certain lots of ground in the Third District, in ¿cuure 1209, bounded by Frenchmen, Blysian Fields, Foroe and Virtue Streets, measures 128 feet front on Frenchmen Street, by 128 feet in depth, and that this is the sole description of the property acquired, and oontains nothing in the description which would definitely locate the Jaokson property as being on the comer of Frenchmen and Virtue Streets.

It is also true that this same indefinite description is found in the act of deposit of the sale of property by Aztec land Company, ltd., to Quaker Realty Company, ltd., dated March 6th, 1905, and deposited with John S. Bust , Rotary public. Because of these facts of imperfect, or indefinite location, defendant argues that plaintiff could not, through confirmation proceedings, have these conventional sales corrected or altered so as to make definite what was indefinite, in the conveyances themselves. It is argued that as the state did not aoquire in the tax sale of property assessed in the name of John Jaokson, anything else than "128 feet front on Frenchmen Street, by 128 feet in depth" that she could not sell more than what she bought, nor sell it by a different description. However imperfect or indefinite the description complained of may have been, it is none the less a fact, made certain by record evidence, that the property acquired by the State through tax sales against the property of John Jaokson, was the identical property which John Jaokson acquired bn June 23rd, 1830, from Andrea Dimitry, who definitely conveyed the two lots known as 9 and 10, situated on the corner of Francois and Vertu streets, as shown in the copy of deed passed before Oarlile pollock, Rotary Public.

Of course, it cannot be disputed that the State could not have conveyed, in 1902, to the Azteo land Company, the same property previously conveyed by it, in 1899, to J. P. Martinez, plaintiff's author in title. The evidence does not show that such error in conveyance has ever occurred in regard ■to the property in dispute, and the burden of proof to support such facts is entirely upon defendant, who has only alleged same in her answer as an alternative averment, and who has wholly failed in substantiating such contention by competent or admissible evidence.

Great reliance has been placed by defendant upon an exhibit offered by her and admitted at the trial of this cause, consisting of the state tax certificate dated October 12th, 1917, by which it is shown that the property bounded by "Frenchmen, Elysian Fields, Tonti and Rocheblave Streets, Ro. 128 by 120 Frenchmen, corner of Rocheblave, and consisting of four lots in Square 1209" has no outstanding taxes due tnereon, and that all has been listed in the name of Emma Sanchez and J. p. Martinez, from 1885 to 1917. She said certificate bears the further inscription as follows: "Sold to J.p, Martinez, Act 80/1886, and 126/96, October 11/99, deed 1615."

Ihere is also offered and admitted in evidence the assessment roll of the Parish of Orleans, for the year 1882, in which it appears that four lots of ground in Square 1209, Frenchmen, Elysian Fields, Force and Virtue Streets, measuring 128 by 120 was assessed in the name of Emma Sanchez, while that in the name of John Jackson, appearing on the same roll, is described as simply being located on Frenchmen Street and measuring 128 by 128.

It is argued that these two documents just cited conclusively prove that the property of Emma Sanchez, sold for taxes of 1883, was located on the corner of Frenchmen and Virtue Streets, and subsequently conveyed to Miss Ardill, could not have been sold for taxes in 1902, she having paid all taxes due thereon.

The evidenoe, as we appreciate it from the record before us, does not bear out defendant's contention, nor can it avail her as a means of challenging the validity of plaintiff's title, whioh has, in our opinion, been completely established by the evidénoe in this case.

The evidenoe introduoed by both parties to this proceeding, whereby eaoh ha3 attempted to prove aots of lawful and ostensible possession of the property in dispute, is not by any naans oonolusive or satisfactory. In faot, we are inclined,- from the reoord before us, to the opinion that one or the other of these litigants should have long sinos resorted to the remedies aooorded them under Adt 08 of 1908, and for these reasons, we believe that disallowance by the Court, a gua, of any damages, for alleged trespass, is right and proper.

We are therefore satisfied, from the evidenoe in this case, that the State of Louisiana, by the two auditors' deeds heretofore referred to, did not dispose of the 3ame property to two different vendees. The property passed by auditor's deed to the Azteo Land Company, and not that sold by auditor's deed to J.r, Martinez, is the property now belonging to the plaintiff in this oase.

JUDCUSHT AFFIRMED

AT DSFEtTRAHT'S COST IH BOTE COURTS

June Eth, 1922,

No. 8235,

Court of Appeal for the Parish of Orleans.

PURITAN CO., LTD. vs. MARGARET AEDILL et-al.

On Application for Rehearing.

Charles F. Claiborne, Judge.

Neither Auditor's deeds locates the "lots” sold to Martinez or to the Aztec Land Co. But the deed to Martinez oonVeyed the lots assessed to "Emus, Sanchez", while the deed to the Aztec Land Co, transferred the lots assessed to "John Jackson".

Jackson acquired from.Dimitry in 1830 two lots, the first fronting the comer of Franpais (Frenchmen) and Virtue Street, hawing 60 feet front on the former Btieet, by 120 feet deep on the latter; the second measuring 60 feet front on Francais Street by 120 feet deep, between Force and Virtue .

This description clearly locates the lots purchased by the plaintiff on the comer of Frenchmen and Virtue. Although the Auditor's deed to the plaintiff's author did not locate the property at any definite or particular part of the square, the correct location may be established with certainty by testimony or by deeds. In Re Martinez, 117 La., 719; Weber's Heirs vs. Martinez, 125 La., 663; 131 La., 681; 11 Ct. App., 80; 21 A., 578; 35 A., 453; 37 A., 304.

Nothing in defendant's* title, or that of her authors, locates her lots at the comer of Frenchnen and Virtue or elsewhere than on Frenchmen Street.

Neither the application of Martinez to the Auditor to purchase the Sanchez lots, nor the certificate of the tas collector as to the payment of tases on same can add to defendant's title, or locate the lots actually purchased. The former cannot make evidence for himself, nor can the latter certify to anything escept as to liiat is upon his books. It is true that the assessment rolls of 1882 locate the Emna Sanchez lots at the comer of Frenchmen and Virtue, and John Jackson somewhere on Frenchmen Street. Bat it was not in h~ A the power of the Assessor to confer or destroy titles by the order in which he chose to assess owners of property. By buying the property assessed to "John Jackson" the State acquired the lots which Jackson owned, and not those which Emma Sanchez claimed.

August 15th., 1922,

It is true that the Notary who prepared plaintiff's title locates the lots at the corner of Frenchmen and Elysian Fields Streets; but this is only a gross patent olerical mistake, as the two streets are parallel and can never meet to form a comer.

Although the Auditor's deed to defendant was mislaid a copy of its registration in the Conveyance Office, or other records, might have been produced. But the defendant did not buy on the assessment roll of 1882 but upon that of 1883, which, perhaps, were different.

Defendant's able and exhaustive brief has not convinced us that the judgment of the lower court and our own were erroneous.

Rehearing refused,  