
    Charles F. Claiborne, Judge.
    XETER REALTY LIMITED VS JOSEPH F. MARTINEZ, Appellant.
    No. 7861
    December 6th, 1920.
   XETER REALTY LIMITED VS JOSEPH F. MARTINEZ, Appellant.

No. 7861

Anneal from Civil District Court, Hon. H. C. Cago, Judge.

CHAHL'SS F. CLAIB0RN3, JUDG'3.

This is an "action to establish title", under Act 38 1908, to the following described real estate, viz:

Two lots of ground, situated in the City of Hew Orleans, _ in the Souare Ho. 1031, bounded by Hew Orleans, Grant, (late Genius), N. Johnson (l'-te Celestino) and Allen (late St. Bernard), Streets, designated as lots !'os.26 nncl 27 on a nlan of Grioux and Castaing, dated July 5th, 1852, deposited in the office of P.^.Lsresche, late Notary; lot 26 measures 32' front on Allen Street, 116' 8'' 3"' deen on the rear line on an oblioue lino, by about 136' deen on the line of lot 27, and 213' 4'' 3’’* deen and front on Genius Street: Lot 27 measures 63 ' front on Allen Street, 136'deeJ) on the line of lot 26, and 115' 8M 4'1* deep on the line of the hypothenuse, said lot forming a rectangular triangle. According to a plan found in the record the location of these two lots is as follows:

The plaintiff averred that it had acquired these two lots by act dated August 4th, 1905, registered in the Conveyance Office on January 25th, 1906, from the Auditor by virtue of Acts 80 of 1888 and 126 of 1896-; $hat theBe two lots had been adjudicated to the State for the taxes of 1882 and 1883, assessed in the name of Mrs. C. Auguste, according to two acts of A.A.Ker, late hotary, dated February 14th, 1885.

Plaintiff further averred that said two lots are now and have always been vacant; that Joseph P. Martinez is claiiiiisag said two lots by virtue of a sale made to him on March 12th,1906 by the State Auditor under same Act 80 of 1888 and 126 of 1896.

Plaintiff prayed for judgment in its favor recognizing it as the owner of said two lots.

The defendant pleaded the prescription of three, ten, and thirty years based on continuous ohysioal possession during those years. The plea was referred to the merits.

For answor, the defendant denied that the plaintiff was owner of the two lots, and denied that they had always been vacant. He averred

"that on May 31st, 1886, he acquired tha said oroperty at a tax sale made by -the State in his favor as will more fully apoear from the certificate and deed of that date made part of this petition (answer) and marked for identification "D 1"; that immediately upon said acquisition he took possession of 3aid lots and ha3 occupied them ever since. That again on March 12th, 1906, he acquired the same from the State for State Taxes for the year lOoS^as appears by act annexed marked "D 2"; that from 1886 to 1905 he has naid all taxes due the State for the years 1876 to 1905 as atrasars by suit Ho. 25,488 of the First City Court; and that from 1906 he has paid all City and State taxes on said lots'; and he prayed for judgment in his favor recognizing him as the o-mer of said two lots." There was judgment for plaintiff as prayed for.

After a refusal for a new trial, the defendant has appealed.

The first question presented Í3 the prescription pleaded by defendant, i/e find no document marked D 1, referred to in the answer. All we find is a receipt, not identified by any mark or number, dated Kay 3l3t, 1836 from the tax collector to J. P. Martinez for one.dollar as the price of adjudication of a lot of ground in Square No.1031,measuring 63 feet froAt on St. Bernard Street by 136 feet deep,for State taxes of 1878 and prior years, assessed in the name of lirs. H. Cheval. Conceding that this receipt can be the basis of a title under Act 8?, of 1884, it cannot be a perfect title unless it is shown that Martinez paid all taxes due on the property from 1880 to 1886. 42 A., 677, Martinez vs Tax Collector; 47 A., 914; 48 A., 52; 49 A., 855; 117 La,, 331, 354; 43 A., 989.

This has not been shown. On the contrary, the State tax certificate dated December 17th, 1917 shows that the State taxes for the years 1885 and 1836 are still "due", and an affidavit in the record, subscribed by Martinez asserts

"that, he has paid all taxes thereon, City and State from 1886 to date".

Besides^the tax sale for taxes of 1882 relied’ on by the defendant makes proof that he had not paid the taxes of 1832 at the time of the sale to him in 1906.

Neither do we find in the record Document marked ¶ 2". We find a document marked "Deft 8" which is an Act of sale dated March 12th, 1906 by the State Auditor to Jose P. Martinez of certain lots in Square 1031 measuring 62 feet front on St. Bernard Street by 136 feet deep - for unpaid State taxes of 1882, on the property of "Mrs. A. F. Cheval". This suit was filed on June 28th, 1917 and the defendant was cited on the next day - more than ten years after he had acquired title. Therefore the only prescription defendant can plead is that of ten years, if he took possession on the date of his title of 1906.

It is well to notice here that the property claimed by defendant and described in title set up by him measures 63 x 136, and corresponds in description with the lot No. 27 claimed by the plaintiff. Therefore defendant does not set up title to lot 26 for which plaintiff is entitled to judgment as far as defendant is concerned.

On the question of nossession the first witness examined on behalf of the defendant is Anthony Tegar. He says he is acquainted with lots 26 and 27 of Josenh Martinez; he examined the lots about two or three years; they were fenced in by Josenh P. Martinez; he was requested by Martinez to sell those lots; at the time he was in New Orleans, the lots were vacant.

The defendant J. P. Martinez testifies that after he bought the property in 1886 he had it fenced in, and nut un signs for rent or for sale; he has paid taxes on the nronerty; he has been in possession ever since and no one has disturbed him since he bought it.

The defendant is blind, and has been for many years previously.

Mrs. J. P. Martinez, wife of defendant, testifies that the nronerty was fenced in by a man named Denis Mitchell, and Martinez rented it for a oasture to Bambeau and to Perez and they had to keep the fences in order; her husband has been in nossession since 1886 when he bought and has never been disturbed; the only tine she has ever seen the nronerty is when there was a circus there, about 20 years ago. neither the party who built the fence, nor the lessees have been oroduced.

J. P. Martinez, Jr., son of defendant, knows the lots well, was taken there by his father when a boy 11 years old; in 1913 there was a good fence around the nronerty and a sign for sale; M. P. Arnoult, real estate agent, had charge of selling the property; ever since he knows himself there has been a fence around that property; peonía would take the fences and burn them up or steal them.

In rebuttal plaintiff offered three -'itnesses:

Josenh W. Lennox, a building contractor, director of Interstate Trust & Banking Co., says: In 1916 there were no fences around the square or the lot; he examined the nronerty to make a renort on the nhysical condition of the nronerty and its value.

Armstrong Donaldson is a real estate agent; knows the two lots 26 and 27; first saw them in 1911; had then in charge to 3ell then for account of the Xeter Realty Co; there were no fences whatever around the two lots, nor anywhere in the souare, open snuare, virgin soil; he out uo the fences there in 1917 at the request of the Xeter Realty Co.; there were no fences aount the square at all; it was vacant; the first fence out uo around those lots was in Kay 1917 by one Cousins to whom he gave ten cents a running foot for doing it; at that tine be out up three fences around three lots in that square.

Joseph H. übert is a real estate agent, knows the two lots because he owns prooerty in the neighborhood; they Were fenced in about two years ago; for eight or nine years orior they were vacant; there were no fences in the square; he used to go across it uoon a oath nearly every Sunday.

The Judge below gave no reasong^for judgment nor did he, in his judgment, refer to the oíase of nrsscrrotion.But it is evident that he overruled it. As his opinion was based upon the credibility of witnesses who testified in his nresence, it is entitled to r.iuch -weight. See the case of La.Building Co. Ko. 7869 decided by this Court lately. Besides, the testimony of Jos. p. Kartiriaz, and of his wife, and of his son, is all interested, and may be considered as one. 34 A1., 332. Vle are accordingly bound to decide that the defendant never took nhy-sical possession of the lots. 139 la., 358.

The prescription of three years cannot avail as this is not an attack upon a tabc title under Art.233 of the Constitution. The contention of plaintiff Í3 that in 1S05 the State sold to it the two lots it claims, and therefore, could not sell then to the defendant in 1906.

As we have seen the defendant bought lot 27 in 1906 for the taxes of 1882. Did the nlaintiff buy the same lot in 1905 for the sarce taxes of 1882?

By an act dated August 4th, 1905, Reg. C.O. January 25th, 1906 in Bk.2Q4, $ 378, the State Auditor sold to the Xeter Realty Co.

" A lot in square 1031, bounded by St. Bernard, Mew 0rlean#> Celestine, and Genius Streets, measuring 98 feet front on St. Bernard Street By one hundred and thirty-six feet in depth" for taxes of 1882 assessed against Mrs. C. Auguste".

This description evidently embraces the frontage of both lots on St .Bernard Avenue, 32 feet f»r lot 26 and 63 feet for lot ^’making 95 feet, and overlapping lot 27 claimed by the defendant. But because it does, has plaintiff acquired a title to it? It shows clearly a dual assessment? the comer lot which measured 26 feet, 98 x 136 in the name of Mrs. C. Auguste, and the ad.ioing lot 63 x 136 in the name of Mrs.A. F.Cheval.

The chain of title of those two lots is as follows:

By act of P. E. Laresche dated February 17th, 1857, Mrs. Fouche sold to Francois Escoffier the two lots 26 and 27 by the same description as that given in the beginning of this opinion, with the exception that instead of Allen Street, the Street is said to be yet;.' unnamed.

Escoffier died; his Succession was opened under No. 28,845 of the late Second District Court.

By act of Abel Dreyfous. of June 2nd, 1862, Hermogene Cheval acknowledged having been put in possession of the undivided half of the .same two lots bequeathed to him and Isis Ferrand by Escoffier.

By act of Abel Dreyfous dated November 9th, 1869, Miss Isis Ferrand acknowledged having been put in possession of the undivided half of same two lots.

By act of P. Coudrain dated November 13th, 18S9, Kiss Isis Ferrand sold to Mrs. Constance Auguste, wife of Hermogene Francois Cheval, her undivided half of salrae two lots.

So that subsequent to November 13th, 1869, these two lots belonged in the proportion of one undivided half each to Hermogene Francois Cheval and to his wife Constance Auguste.

In the year 1882, the tax assessment of the square was as follows:

By act dated August 4th, 1905, registered in the Conveyance Office on January 25th, 1906, the State Auditor sold to the Xeter Realty: A lot of ground in the above square meaa-uring 98 feet front on St. Bernard by 136 feet deep,assessed in the name of Mrs. C. Auguste.

It is evident that this sale embraces in its description, as far as its frontage is concerned, both lots 26 and 27, and, in its depth, the lot 27, to which alone defendant lays claim.

The assessment and sale were not of the undivided half, of the two lots but of the whole of the lots, and.therefore. conferred a title by the State to the Xeter Realty Co.of the entirety of the two lots. Having done so, the State could riot subsequently sell the same two lots or any part thereof to another person for the taxes of the same year. 30 A., 432: 51 A., 251; 119 La., 245.

The registry of the act to the Xeter Company took precedence over the sale to the defendant ih 1906. 142 La., 611.

The assessment of the two lots in the name of Mrs. C. Auguste was sufficient to convey title. 28 A., 677.

But if there was any irregularity in the assessment of the two lots in the name of Mrs. 0.Auguste, omitting her’married name, and also the name of her husband, Hermogene Franr cois Cheval, her eo-proorietor, this was cured by the prescription of three years under Article 233 of the Constitution, as we have seen that no one was in possession of those lots from 1905 to the time of filing this suit. 107 La. , 77; 109 La., 77, 642; 115 La. , 349, 1070; 117 La,, 353, 354.; 119 La., 1056; 138 La., 508, 525; 141 La., 247; 114 La., 282; 145 La., 350.

It ia well settled, that the prescription of three years runs in favor of the State holding muter a tax title, and inures to the benefit of a purchaser from the State. 43 A., 873; 138 La., 508 (524).

Only the owner who has paid the tax under one assessment can take advantage of a dual assessment. 115 La., 351.

The defendant sets up title by virtue of a sale made to him by the Auditor on March 12th, 1906 of certain lots measuring front jjn St^3gjrpard Street by 136 feet deep assessed^rn the.páme of Mrs. K.f. Cheval. Admitting the validity of this assessment it is evident that it was intended to embrace lot 27 which formed a part of the portion of ground assessed as measuring 98 x 115 - 136 previously sold to the Xeter Co., plaintiff herein. The District Judge was of that opinion and so are vie, and,therefore, it was not in the^nower of the Auditor to sell the lot 27 to the defendant after had sold it to the plaintiff.

Judgment affirmed.

December 6th, 1920.  