
    No. 11,745.
    Widow A. Botto vs. Mrs. C. F. Berges et al.
    The purpose of the suit was to have an agreement annulled, in which plaintiff promised to buy and the defendant to sell immovable property.
    The formalities required have been complied with in the first adjudication of the property at tas sale.
    It was properly adjudicated to the highest bidder, under Act 82 of 1884, without regard to the amount due on the property.
    Since the adjudication the tases assumed by the adjudicatee have been paid, thereby perfecting the tas title beyond all question. But the ^subsequent tas sale of the property was a nullity. It was adjudicated as property of the State, although it was not shown that the J3tate ever acquired any right to make such a transfer. No proof was made of the fact of adjudication to the State for tases, and yet the tas collector undertook to sell it as property that had been adjudi - cated to the State for tases.
    The joint owners, who held under the first and legal tas deed, signed a “quit claim,” thereby transferring good title to the defendant. All, escept one, Signed a document in due form.
    The latter sans seing prive, authorized the relinquishment of his right as]owner.
    No attempt was made to procure authentic evidence or relinquishment as required.
    The purchaser has the right to a title authenticated in due form.
    The absence of such evidence justified the plaintiff in refusing to take title.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.
    
    
      E. J. Méral and Albert Voorhies for Plaintiff, Appellee.
    There must be two attesting witnesses to an authentic act; otherwise its execution must be proven as an act under private signature. C. C. 2234.
    The same rule applies to acts executed by a commissioner. Nor can the act be admitted even to prove rem ipsam, without proof of its execution. Leibe vs. Haversmith, 39 An. 1050; Miller vs. Werner, 22 An. 457; and Langley & Kinkead vs. Burrows & Co., 15 An. 392.
    A promise of sale subject to ezamination of titles means that the vendor must exhibit a regular chain of titles, free from all cloud.
    A chain of titles running back to less than ten years does not meet the requirement; more especially when the two first deeds of this chain are tax sales.
    
      A promise of sale, accompanied by a deposit of earnest money, is governed by provisions of O. 0., Art. 2463, which is of limited application, and recognizes the liberty of either promisor or promisee to withdraw from the main obligation. But when either party is at fault, and there is no cause to rescind the obligation, then recourse is had to general principles, as found under C. 0., Arts. 1779, 1797, 1883, 1893.
    
      Dart & Kernan for Defendant and Appellant:
    The title tendered plaintiff is valid and legal in every respect, and one from the acceptance of which no trouble or annoyance could possibly result. It is maintained by the ratification of the heirs of Piles (or Pyles), the prescription of three years, and the numerous adjudications maintaining titles of this nature. Martin vs. Langenstein, 43 An. 791, and cases cited; Henderson vs. Bllerman, 47 An. 306.
    The ratification of tax titles, under Act 82 of 1884, is unnecessary; therefore, whether document complained of be authentic or not, is of no consequence to the validity of the title tendered by defendant.
    A tax sale made in exact conformity with the requirements of Act 82 of 1884, and the principles announced in re Lake, 40 An. 142, and in re Douglas, 41 An. 765, will be affirmed to pass a legal and valid title, there being no question raised as to the legality in the assessment of the property. 47 An. 306.
    Argued and submitted April 23, 1895.
    Opinion handed down May 6, 1895.
   The opinion of the court was delivered by

Breaux, J.

This is a suit to recover two hundred dollars deposited by plaintiff as earnest of her promise to buy.

The plaintiff alleges that defendants’ title was not legal and valid; that the defendants have not made a tender of the title; that they are not the owners, and that there are mortgages and privileges recorded against the property.

That, although unable to give good title, the defendants refuse to return the money deposited.

The answer controverts plaintiff’s demand, and contains a plea in reconvention; it sets out the validity of the title, and prays for judgment condemning plaintiff to take title and pay the fine or forfeit the earnest money.

In the written agreement, in compliance with which the deposit was made, the property is described. The plaintiff promised to buy, to buy, subject to an examination of title.

The following is the chain of title:

On the 13th of July, 1886, the property was adjudicated at tax sale, under Act 82 of 1884, to W. A. Piles for Widow Wm. Piles for thirty-three dollars.

The taxes at the time amounted to one hundred and one dollars and twenty cents. In the deed the purchaser assumed all the State, city, parish and municipal taxes on the property for the year 1880 and years subsequent.

On the 21st of August, 1890, the same property was sold by the tax collector, under Act 80 of 1886, to Miss Alice M. Stiekney, for the taxes of the years 1880 to 1883 inclusive, who also assumed taxes for years subsequent to that last mentioned. Miss Stiekney sold to J. H. Black, and in 1891 Black sold to the defendant, Mrs. O. B. Berges.

In the last act, the heirs present, of Mrs. Wm. Plies intervened and signed a quit claim to the property.

One of the heirs was an absentee, represented by an agent under a procuration acknowledged in New York before a notary, without witnesses.

A clerk of a court of record certified that the notary was duly authorized to receive the acknowledgement, was genuine.

The Secretary of State of New York issued the usual certificate, showing that the clerk was duly authorized to act.

But no witnesses having signed the procuration, under Louisiana laws it was an act sous seing prive.

Moreover, the procuration does not in terms refer to any property ; it does not authorize the agent to relinquish any right to the property or to ratify the tax deeds, which are part of the chain of titles.

The judgment of the District Oourt rejected defendant’s reconventional demand, and condemned him to return the two hundred dol - lars, earnest money.

The defendants prosecute this appeal. The appeal is before us only in so far as relates to the plea in reconvention. The amount of the principal demand is not within the jurisdiction of this court.

The tax deed, bearing date 13th July, 1886, when Mrs. Piles became the owner at tax sale, has every appearance of being regular and legal in all respects.

The required formalities have been complied with under Act 82 of 1884.

Subsequent to this date the property was, at another tax sale, adjudicated to Miss Stickney.

The adjudication at this last tax sale was illegal, and the title did did not pass from the owner under that adjudication. The tax collector declared in the deed of adjudication that the property had been previously adjudicated to the State of Louisiana for the taxes of 1880 and subsequent years.

The adjudication was not proved, save the ex parte declaration of the tax collector contained in his deed of adjudication. There is no legal evidence before us of any adjudication, whatever, to the State.

The defendant doubtless felt the necessity of curing the patent defect in the chain of titles, and for that reason obtained from the heirs of Mrs. Piles a quit claim signed by all the heirs, in due form, except one, as we have already stated.

It is unfortunate for the defendant that the power of attorney is not authentic, and that the signature of the principal was not proven on the trial of the case.

The document produced by the defendant was an act under private signature, and not admissible as authentic evidence to prove title.

The notary public before whom the acknowledgment was signed was vested with authority similar to that exercised by notaries in Louisiana.

The acknowledgment before a notary in this State would not have made it authentic, without witnesses, and the same must be true of an act acknowledged in another State to effect the title to real property here. Langley & Kinkcad vs. Burrows, 15 An. 392, 393; Miller vs. Wisner, 22 An. 457, 458.

The promise to transfer property for cash, under a title in every respect legal, was a condition not complied with by the defendant, and it, in consequence, justifies the plaintiffs in praying that the written agreement of promise to buy be declared no longer of any effect.

The defendants’ reconventional demand is properly dismissed.

The judgment, is therefore, affirmed.  