
    (43 South. 889.)
    No. 16,407.
    BERNSTINE v. LEEPER et al.
    (April 15, 1907.
    Rehearing Denied May 13, 1907.)
    1. Taxation — Sale—Invalidity — Prescription.
    Where a person has always paid his taxes upon his entire property, a sale of the property under another assessment in the name of another person is an absolute nullity, and cannot serve as a basis for the constitutional prescription of three years. It makes no difference that the assessment in the owner’s name contained an error in the description of the property.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Taxation, § 1594.]
    2. Prescription — Recording Title.
    To serve as a basis for prescription, the title need not be recorded. Registry is required only for transferring the property, and in the law of prescription the title does not operate to transfer the property, but merely to establish the good faith of the possessor and fix the limits of the possession.
    (Syllabus by the Court.)
    Appeal from Thirteenth Judicial District Court, Parish of Grant; Wilbur Fisk Black-man, Judge.
    Action by Joseph Bernstine against Robert H. Leeper and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Blackman & Overton, for appellant Leeper. Henry Pollard 'Gamble and White & Thornton & Holloman, for appellant Dalton-Clark Stave Co. Nettles & Teer, for appellee.
   PROVOSTY, J.

Defendants rely upon the said adjudication to the state, and upon the constitutional prescription of three years; also upon the inability of plaintiff to show a title good as against the whole world.

The record leaves no doubt that the taxes on the‘land were regularly paid; also that the taxes on the land of corresponding description in range 1 were in like manner always paid. This disposes of the pretensions of defendants, in so far as based on the tax adjudications; for the sheriff has no power to sell for taxes property on which the taxes have been paid. The payment is not the less efficacious because of an error in the description; and cases where the taxes had been paid are expressly excepted from the constitutional prescription. Kellogg v. McFatter, 111 La. 1037, 36 South. 112; Booksh v. Wilbert, 115 La. 351, 39 South. 9.

Owing to the courthouse and its records having been destroyed by fire, plaintiff was unable to show a transfer from the original patentee to the person in whose hands the property was seized when he acquired it at sheriff’s sale; but he relies also on the prescriptions of 10 and 30 years, and in our opinion has fully established this latter prescriptive title.

At the time he bought the land, in 1873, there was a tenant of the former proprietor living on it and cultivating a part of it. The tenant attorned to him, and for a number of years paid him rent. The fact of the land belonging to him was well known in the neighborhood, so much so that his local representative was applied to by the defendant Leeper when the latter first sought to purchase it. His ownership and possession was questioned by no one until 1902, when Leeper acquired the paper title of the state. Actual possession of part under a title is possession of the whole, and a possession once begun by occupancy is continued by mere civil possession. Civ. Code. arts. 3437, 3442; Levy v. Gause, 112 La. 790, 36 South. 684; Sallier et al. v. Bartley, 113 La. 400, 37 South. 6; Handlin v. Lumber Co., Ltd., 47 La. Ann. 404. 16 South. 955.

The contention of defendant’s learned counsel that a petitory action cannot be based on a title acquired by prescription can hardly be serious. Of course, a party out of possession cannot acquire by prescription; but, if he loses his possession only after having acquired a title by prescription, it would be strange if he could not vindicate this title as against a mere possessor. A title by prescription is a title, as much so as any other, and a man does not lose his title when he loses possession.

The sheriff’s deed to plaintiff was duly recorded in the parish of Winn, where the sale was made. Plaintiff says it was also recorded in the parish of Grant. We imagine that, if it had been, the records in the recorder’s office would show it. But we do not find that registry plays an important part in the matter. It would be important only if plaintiff were relying upon the sheriff’s deed as conveying the property; but he is relying upon it merely as showing rem ipsam, namely, that he had a title — a title which fixed the boundaries of the land, and which justified him in believing that he was the owner. A trespasser “acquires possession inch by inch only of the part he occupies” (Hennen, p. 1205, No. 2); but the person who goes into possession by virtue of a title acquires possession of the entire estate the former possessor abandons to him.

The Dalton-Clark Stave Company prays “that, should judgment be rendered against your appearer, the same judgment be rendered over against said Deeper.” In the nature of things, it is not possible to grant this prayer. Hence the lower court properly contented itself with a reserve of rights against the warrantor.

Judgment affirmed.  