
    Luther A. WHITE et al., Plaintiffs-Appellees, v. Annie Smith WHITE et al., Defendants-Appellants.
    No. 7882.
    Court of Appeal of Louisiana, First Circuit.
    March 9, 1970.
    Rehearing Denied April 13, 1970.
    
      Watson, Blanche, Wilson, Posner & Thi-baut, by Peter T. Dazzio, Baton Rouge, for appellants.
    White & May, by Hamlet D. May, Baton Rouge, for appellees.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a petitory action in which defendants-appellants appeal from a judgment awarding plaintiffs an undivided 28.-34 per cent interest in title to 75.32 acres of land situated in the Parish of East Baton Rouge, Louisiana. Appellants’ title, acquired from a third party tax sale purchaser, was annulled for fraud. We are of the opinion that the decision of the trial court is correct and should be affirmed.

The facts upon which this matter must be adjudicated are presented primarily through the allegations of the petition, the answer thereto, and a joint stipulation. Green B. White was the undisputed owner of the subject property when he died in 1921. White was married three times and had lawful issue of each marriage. Plaintiffs herein are issue of White’s first and second marriages. The defendants are the wife and issue of the third union.

Annie Smith White and her children resided on the property until sometime after 1927. Taxes on the land were paid by defendant from 1921 to 1926, inclusive. The 1926 taxes were not paid and the property was sold at a tax sale on July 14, 1927, to W. H. Smith for $20.88, representing taxes and costs. W. H. Smith is an uncle of Annie Smith White. On August 1, 1928, he transferred the property to Annie Smith White for the recited consideration of $500.00.

Notice of the tax sale was mailed to Green B. White, then deceased, but was receipted for by Minnie White Dirr (Nichols), daughter of decedent’s second marriage. Defendant and her children were in possession of the property at the time of the tax sale. Within a year of the sale they left the property and remained away for approximately six months. It is stipulated that if Luther White, child of the second marriage and Everett White, a grandchild of the first marriage, were to testify in person, they would state that Minnie White Dirr did not advise them of her receipt of the tax notice which preceded the sale to W. H. Smith. It is also stipulated that Luther White would testify that he gave defendant small amounts of money prior to 1926, because she needed financial assistance, but that defendant did not request aid from him for payment of 1926 taxes. Another stipulation recites that Luther White and Everett White would testify that defendant never notified them that she had obtained or thought she had acquired title through the tax sale to Smith and the subsequent transfer to herself.

Elisha White and Maggie White Browning, children of decedent’s third marriage would, according to the stipulation, testify that to the best of their knowledge, plaintiff, Luther White, never gave defendant any amounts of money. Elisha White would also testify that her mother told Luther White, in Elisha’s presence, that she had purchased the land from her uncle and that conversation took place within a few weeks after defendant had acquired the land from Smith. In August of 1952 the succession of Green B. White was opened and on August 11, 1952 the children of decedent’s third marriage were recognized as his heirs at law and as such declared owners of the subject property. This present action was filed on June 23, 1961. On November 4, 1961 Annie Smith White transferred the property in question to Alma Parker Martin, issue of decedent’s marriage to the defendant. The act of transfer recited a cash payment of $10.00 and “other consideration”.

The lawful heirs of Green B. White are: Mary White Byers, daughter of decedent’s first wife; Sarah Kahan, David White, Everett White and Mary Elizabeth White Beard, children of Tom H. White, deceased’s son of his first marriage; Allen White and Curtis White, children of William David White, deceased’s son of the first marriage; James Vernon White, Luther A. White and Minnie White Dirr Nichols, issue of decedent’s marriage to Mary Buckles (Mrs. M. J. Miller); Maggie White Browning, Elisha White, Alma White Martin and Abbie R. White, children of decedent’s marriage to defendant herein.

Plaintiffs in this suit are Everett White, Mary White Beard, Allen White, Curtis White, James Vernon White, Luther A. White, David White, Mary White Byers and Minnie White Nichols.

In plaintiffs’ petition they attack the tax sale to W. H. Smith as having been invalid for (1) improper notice in that the record owner was deceased at the time the tax notice issued and (2) insufficient description to properly identify the property sold for taxes. In addition, plaintiffs urge that defendants’ acquisition was fraudulently obtained through the means of an interposed third party, W. H. Smith. In this latter connection it is argued that the defendant owed a fiduciary duty to preserve the interests of her children in the property and, as their tutrix, she could not adversely acquire their interest therein. The basic argument is that as agent of the minor co-owners defendant’s action amounted to payment of taxes in the minor’s behalf and such payment also redounded to the benefit of plaintiffs as co-owners with the minors. Of these three issues we will first consider the latter one for if the transaction between W. H. Smith and Annie Smith White was indeed a fraudulent one, the first two issues need not be resolved. Further, these first two issues were squarely presented in and determined by a district court, Court of Appeal, and Supreme Court of Louisiana in White v. Lockhart, 229 La. 611, 86 So.2d 397 (1956) and the same case at 129 So.2d 917 (1st La.App., 1961, writs denied, 1961)..

Defendants filed several exceptions; however, we are here concerned with their plea of res judicata. This exception is predicated upon the prior litigation between defendants and the present plaintiff, Luther A. White, and certain other heirs of decedent, Green B. White, in the Lock-hart cases, supra.

We are of the opinion that the Lockhart cases are not res judicata as to the issue of whether or not the transaction between W. H. Smith and Annie Smith White was a fraudulent one because the legal effect of the transaction between W. H. Smith and Annie Smith White was not presented to nor passed upon by either the Supreme Court in the first case or ourselves in the second one.

In White v. Lockhart, supra, plaintiffs therein, issue of decedent’s second marriage, initiated a timber trespass action against defendant, Lockhart, in Livingston Parish because that was the parish of Lockhart’s domicile. The principal demand was for a percentage of the value of timber cut and removed from the subject property. Lockhart defended on the ground that he had acquired title to the timber from Annie Smith White, whom he called in warranty. Warrantor filed exceptions of want of procedural capacity, lack of interest, no cause or right of action, prescription and lack of jurisdiction ratione materiae. The trial court overruled warrantor’s exceptions of want or legal interest and prescription but maintained the remaining exceptions and dismissed plaintiffs’ suit with reservation of the right to bring an appropriate action in East Baton Rouge Parish. The Supreme Court reversed the trial court insofar as it maintained the exceptions of no right or cause of action, want of procedural capacity and lack of jurisdiction, holding that the issue as to whether or not Lockhart was a trespasser must be resolved by determining warrantor’s title on the merits. The matter was therefore remanded to the trial court. On the remand the trial court initially held for plaintiffs but on rehearing reversed itself and rendered judgment for defendants. Plaintiffs’ appeal to the Supreme Court was transferred to this court on authority of Article 7, Section 30, Louisiana Constitution of 1921. This court, see 129 So.2d 917 (1961), held that the tax sale was valid and also that it was cured by a prescription of six months and five years urged by warrantor pursuant to Article 10, Section 11, Louisiana Constitution of 1921.

In the instant matter defendants’ plea of res judicata was rejected by the trial court on the ground that the cause of action in White v. Lockhart, supra, was one of trespass and therefore different from the peti-tory action herein asserted and further that the parties were not the same in each action. We concur in this holding because the issue here presented is not only the validity of the tax sale but also the transaction between W. H. Smith and defendant, Annie Smith White, insofar as these transactions pertained to the rights of her minor children and the remaining plaintiffs who owned the property in indivisión with the minors. In the Lockhart case we were particularly concerned with Lockhart’s right as a purchaser of timber. Lockhart was an intervening third party who had relied upon the public records which, at the time, failed to disclose any adverse claim on the part of the plaintiffs. 129 So.2d 917, 921.

In Quarles v. Lewis, La.App., 67 So.2d 106 (1953) we held that the same plaintiff in a previous suit, 219 La. 194, 52 So.2d 713 (1951), though successful in requiring the specific performance of a contract, could not in a second suit demand damages for the delay in performance because such damages could have been asked for and obtained in the first suit. Citing P. Olivier & Sons v. Board of Commissioners, 181 La. 802, 160 So. 419. The Supreme Court granted writs, Quarles v. Lewis, 226 La. 76, 75 So.2d 14 and exhaustively reviewed the jurisprudence on the subject and stated as follows: (75 So.2d 15,16) -

“On the face of things, it would appear that the view of the lower courts is in conflict with Article 2286 of the LSA-Civil Code for that Article declares that the authority of the thing adjudged takes place only with respect to the object of the judgment. Since the object of the first suit was to compel a specific performance whereas this suit is for recovery of damages resulting from untimely performance, it is clear that the demand in this suit is not the same as that in the first action, even if it be conceded that defendant’s breach of contract gave rise to but one cause of action (which counsel for plaintiff strenuously deny). Accordingly, it would seem to follow that the plea of res adjudicata is not well taken unless it be, as defendant professes, that the judgment in the first suit is conclusive not only of the issue there presented hut also of all matters which might have been pleaded therein — a concept of res adjudicata having its origin in the common law.
But as stated in Woodcock v. Baldwin, 110 La. 270, 34 So. 440, 441, citing the leading case of State v. American Sugar Refining Co., 108 La. 603, 32 So. 965:
‘The doctrine of the common law courts that res adjudicata includes not only everything pleaded in a cause hut even that which might have been pleaded, does not generally obtain under our system.’
* * * * * *
There are only three exceptions to this general rule that res adjudicata does not apply unless there be an identity of demands, parties and cause of action, as prescribed by Article 2286 of the Code. Those exceptions are succinctly stated in Himel v. Connely, [195 La. 769, 197 So. 424] supra, thus:
‘There are decisions recognizing three exceptions to the general rule which we have quoted, but the exceptions are not pertinent to this case. One of the exceptions that was made is that in a petitory action the parties to the suit must assert whatever titles they have, and not hold back any claim for future litigation. Shaffer v. Scuddy, 14 La. Ann. 575; Heirs of Brigot’s Heirs v. Brigot, 49 La.Ann. 1428, 22 So. 641; Howcott v. Pettit, 106 La. 530, 31 So. 61; Lindquist v. Maurepas Land & Lumber Co., 112 La. 1030, 36 So. 843; Gajan v. Patout & Burguieres, 135 La. 156, 65 So. 17; Succession of Whitner, 165 La. 769, 116 So. 180. Another exception to the general rule has been made in suits for a partition or division of real estate. Choppin v. Union National Bank, 47 La.Ann. 660, 17 So. 201; Wells v. Files, 136 La. 125, 66 So. 749; Samuels v. Parsons, 146 La. 262, 83 So. 548. And the third exception to the general rule has been made in suits for an injunction against the execution of a judgment, or a writ of seizure and sale in executory process. McMicken v. Morgan, 9 La.Ann. 208; Trescott v. Lewis, 12 La.Ann. 197; Fluker v. Davis, 12 La.Ann. 613; Porter v. Morere, 30 La.Ann. 230; Brooks v. Magee, 126 La. 388, 52 So. 551; Schwartz v. Siekmann, 136 La. 177, 66 So. 770. But, in injunction suits, the right of the head of a family to claim the homestead exemption is not waived by his enjoining the sale on other grounds without claiming the homestead exemption. Lee v. Cooper, 155 La. 143, 98 So. 869. The present suit does not come within any of the exceptions to the general rule, that the doctrine of the commonlaw courts, that res judicata includes not only everything pleaded in a cause but even that which might have been pleaded, does not prevail in Louisiana.’
See Hope v. Madison, [194 La. 337, 193 So. 666] supra.
Hence, it is plain that this suit, not being a petitory action for a suit for a partition or one for an injunction against the execution of a judgment or a sale under executory process, comes within the general rule that res adjudicata cannot apply when the demand is not the same as that previously made, even though it might have been asserted in the original action.
However, we take cognizance of the fact that, notwithstanding the above cited jurisprudence, there are a few decisions which, ignoring the provisions of Article 2286 of our Code, have applied the common law doctrine that res adjudicata includes all matters that might have been raised and decided in the prior cause. These cases are notably P. Olivier & Sons v. Board of Com’rs, supra; Norton v. Crescent City Ice Mfg. Co., [178 La. 150, 150 So. 859] supra and dictum contained in Exchange Nat. Bank v. Holoman Bros., 177 La. 537,148 So. 702.
‡ * * j{c * *
Whether plaintiff’s failure to demand the damages he is now claiming in the specific performance action precludes him from recovering them in this suit, is a matter upon which we refrain from expressing an opinion. This is because the sole issue for determination on this writ of review is whether the suit for specific performance is res adjudicata of the present action for damages. We hold that it is not.” (Emphasis ours.)

Applying the above cited authorities to the issue at hand, the question for resolution is whether or not plaintiffs were required in the suit against Lockhart for trespass to allege and urge fraud on the part of defendant, Annie Smith White, or be met now with a plea of res judicata on the issue of title for failing to do so. We must answer this question in the negative for several reasons. . One, our appreciation of the rule relative to the application of Article 2286 does not require that a defendant urge all defenses available to it except in such situations as are specifically required as hereinabove set forth. Further, res judicata being stricti juris, a suit in trespass cannot be converted into a peti-tory action. The call in warranty of the defendant in the Lockhart case was an incidental matter to the main action and was done solely for the procedural necessity of determining whether or not Lockhart was a trespasser and liable as such.

It is also noted that the parties in the Lockhart case were the children of Green B. White’s second marriage whereas the plaintiffs in the instant matter not only include children of the second marriage but also children and heirs of the decedent by his first wife. Accordingly, we must conclude that the demands in the first action and the parties are not the same and therefore the exception of res judicata was properly overruled.

We now turn to the merits of the case on the main demand, i. e., whether or not as a matter of law Annie Smith White committed a fraud upon her children and their co-owners when she acquired the property from her uncle, W. H. Smith. On this issue the trial judge stated:

“The proceedings for the tax sale of the property were conceived and instituted in fraud of the rights of the children of Green White, including those of his first two marriages, plaintiffs herein. Some thirteen months later, when Mrs. White had both a right and duty to redeem the property from her uncle for the $20.88 taxes and costs in the name of the owners, she instead purchased it in her own name for a recited consideration of $500.00. There can be no doubt that Mrs. White violated her duty to act for her children and the other children of her deceased husband, and the circumstances of the purchase for $500.00 some thirteen months after she purportedly had not the resources to pay taxes of $14.56 raises an almost irrebutable inference of fraud in the whole series of transactions. In addition she suffered the express prohibition of C.C. Article 337 from buying the property in which her children held an undivided interest. In the light of circumstances inferring fraud the burden shifts to the person seeking to uphold the sale to prove its validity; King v. Atkins, 33 La.Ann. 1057; First National Bank of Ruston v. Jones, 186 La. 269, 172 So. 155; Williams v. Watts, La.App., 195 So. 54; Chelette V. Chelette, [La.App.] 5 So.2d 553. The defendant has offered no proof of the validity of the transactions here.
The Court therefore concludes that Mrs. White attempted to defraud her children and step-children of their interests in the property and that Mr. Smith was a party interposed for this purpose. The sale is thus null and void unless these defects are cured by prescription; C. C. Articles 337, 12, 1847, 1848.
The fact that Mrs. White had a duty to pay the taxes on the property and represent the interest of her children, by virtue of her tutorship, puts her in much the same position as her children in regard to their co-owners. She was charged with the duty of acting for a co-owner. But even in the absence of that specific duty imposed by the Code, she had a responsibility to act in regard to the land in no way contrary to the interest of the plaintiffs. They had allowed her to remain in possession of their property, and she agreed to pay the taxes on it. In view of the means by which she attempted to acquire the property, her declaration to the contrary could be given little weight. It is, in fact, stipulated that she had paid the taxes for the five years preceding the sale. This circumstance brings the case within the principle of law that a purchase at a tax sale by a co-owner, or one under a duty to pay the tax, operates as a payment of the tax rather than a sale of the property. The payment inures to the benefit of all the owners, who may assert their rights by paying up their pro-rata share of the taxes; Cooper v. Edwards, 152 La. 23, 92 So. 721; Harrell v. Harrell, 174 La. 957, 142 So. 138; Wall v. Hamner, 182 La. 1049, 162 So. 769; Skannel [Skannal] v. Hespeth, 196 La. 87, 198 So. 661; Keller v. Haas, 209 La. 343, 24 So.2d 610; Hodgeson v. McDaniel, 233 La. 180, 96 So.2d 481.”

We concur in these findings by the trial judge and further cite Civil Code Article 248 which conferred upon Mrs. White the relation of tutrix by nature of her children. Under Article 253 of the Civil Code, while not compelled to accept the tutorship of her children, she was bound to fulfill the duties of a tutrix until she had caused one to be appointed. C.C. Article 337 charges her with the responsibility of prudently administering the affairs of the minors.

We note from the record that the taxes were paid regularly from 1921 to 1926 and from 1928 to the date of the trial by defendant. We conclude as did the trial judge that it is strange indeed that she would be forced to permit the adjudication of the minors’ property for taxes in the amount of $20.88 and yet during the following year acquire the same property for a recited consideration of $500.00. Of particular significance is the fact that she acquired this property from her uncle within the three year period permitted for the redemption of property sold for taxes. The trial judge found as a matter of fact that the plaintiffs did not learn of the tax sale or the subsequent adjudication of the property to the defendant until 1952 and since that time they have diligently endeavored to pursue their interests. The succession was opened in 1952 and we assume for the express purpose of judicially determining the legal heirs of decedent, Green B. White. The Lockhart case was filed shortly thereafter. It was not concluded until June of 1961 when writs were denied by the Supreme Court. This present suit was filed on June 30, 1961 and following several hearings on exceptions, etc., was tried on the merits on April 19, 1963 and rendered with written reasons assigned on September 4, 1964. Through no fault of plaintiffs, the record was not lodged in this court until June 26, 1969. White v. White, La.App., 227 So.2d 760. Under these circumstances it certainly cannot be said that the plaintiffs who were successful in the trial court are guilty of laches.

The judge has accounted for thé interests of the various heirs of Green B. White, including those who have renounced or quitclaimed any interest in his succession and the children of the defendant. He determined that the six remaining plaintiffs owed an undivided 28.34 interest in the property and he pro-rated it accordingly. We have examined his reasons therefor and find no error. Finally, the trial judge concluded that the sale by the defendant, Annie Smith White, to her own daughter, Alma White Parker Martin, having been attempted after the filing of this suit is null and of no effect. We find no error in this determination.

Accordingly, for the above and foregoing reasons the judgment of the district court is affirmed at appellants’ costs.

Affirmed.

LANDRY, Judge

(dissenting).

It is my opinion the majority have erred in rejecting defendants’ plea of res judica-ta and finding for plaintiffs on the issue of fraud.

The plea of res judicata is based on prior actions brought by plaintiffs involving the same property, namely, White v. Lockhart, 229 La. 611, 86 So.2d 397, and White v. Lockhart, 129 So.2d 917, First Circuit.

White v. Lockhart, 129 So.2d 917, was an action by Luther A. White, Curtis White, Allen White, Mrs. Bessie White Beard, Everett D. White and David White against defendant Lockhart for damages for alleged timber trespass on the property involved herein. The action was brought in Livingston Parish, Lockhart’s domicile. Plaintiffs therein demanded a percentage of the value of timber allegedly cut. Lock-hart’s defense was an alleged valid purchase of the timber from Annie Smith White, whom Lockhart called in warranty. Warrantor filed exceptions of (1) want of procedural capacity; (2) lack of interest; (3) no cause or right of action; (4) prescription, and (5) lack of jurisdiction over the subject matter. The trial court overruled warrantor’s exceptions of want of interest and prescription but maintained the remaining exceptions and dismissed plaintiffs’ suit with reservation of the right to bring an appropriate action in East Baton Rouge Parish. On appeal, the Supreme Court reversed the trial court insofar as it maintained the exceptions of no cause or right of action, want of procedural capacity and lack of jurisdiction. The Supreme Court then remanded the matter to the lower court for trial on the merits of the issue of title raised by warrantor. On remand, the trial court initially held for plaintiffs. On rehearing, the trial court reversed itself and rendered judgment for defendants. Plaintiffs’ appeal to the Supreme Court was transferred to this Court pursuant to Constitution Article VII, Section 30. This Court, see 129 So.2d 917, held the tax sale valid ab initio and also held it was cured by the prescriptive periods plead by defendant, which are the same as those plead by defendants herein. In addition, it held the title of defendant Annie Smith was expressly recognized and declared. The present action is a petitory action in which plaintiffs seek to be declared owners of the exact same property involved in the prior actions.

The trial court and the majority reject defendants’ plea of res judicata on finding the issues and parties are not the same. I disagree on both counts.

LSA-R.C.C. Article 2286 provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

It is settled in our jurisprudence that to support a plea of res judicata there must be a sameness of the parties and their qualities as well as a sameness of demands and causes of action. Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399, and authorities therein cited. The principle of res judicata is stricti juris, and any doubt regarding the identity of parties or the sameness of the action must be resolved in favor of maintaining the action. Quinette v. Delhommer, above.

The majority find the plea of res judica-ta unfounded because the former action was for money damages for alleged timber trespass whereas the instant action is to determine ownership of land. The majority also finds a variance of parties.

The former action was in Livingston Parish, the domicile of the principal defendant, Lockhart. Warrantor therein, defendant in this action, was not a domiciliary of Livingston Parish. On this basis, plaintiffs argue the court in Livingston Parish was without jurisdiction to determine ownership of land situated in East Baton Rouge Parish, inasmuch as such an action must be brought where the property is located pursuant to LSA-C.C.P. Article 80 and other cited statutory provisions. Plaintiffs also urge that jurisdiction over the subject matter cannot be conferred by consent and that a judgment rendered by a court without jurisdiction over the subject matter is void pursuant to La. Code of Practice Article 92; LSA-C.C.P. Article 3. A void judgment, according to plaintiffs, cannot serve as the basis of a plea of res judicata. Finally, plaintiffs contend the issue of fraud was not raised in the former action therefore the issues are different and defendant may not plead res judicata.

In White v. Lockhart, above, defendant Annie White alleged, when called in warranty, that the suit was converted into a petitory action and the trial court was without jurisdiction because she had not been sued at her domicile as required by Code of Practice Article 162. She also excepted to plaintiffs’ capacity to stand in judgment. In addition, she filed an exception of no right and no cause of action claiming plaintiffs were without title to the land described in the petition. Lastly, defendant affirmatively claimed ownership of the property involved. The trial court sustained defendants’ exceptions. The Supreme Court, however, see White v. Lock-hart, 229 La. 611, 86 So.2d 397, reversed the trial court and remanded the matter upon finding the trial court had jurisdiction pursuant to Code of Practice Article 165(9) which created exceptions to Code of Practice Article 162. In effect the Supreme Court held the action was filed in the proper forum for trespass actions as provided in Code of Practice Article 165(9). It appears the Supreme Court characterized the action as a trespass action for jurisdictional purposes. Noting the parties named in the petition, the Supreme Court held plaintiffs possessed procedural capacity to stand in judgment. The Supreme Court then held warrantor’s (defendant herein) exception of no right and no cause of action, based on plaintiffs’ alleged lack of title, was an issue that could not be tried as an exception but one which must be heard on its merits. Subject to these findings and instructions, the matter was remanded by the Supreme Court to the trial court to be heard on the merits. It would appear the Supreme Court was aware that under the claim of ownership set up by warrantor in opposition to plaintiffs’ claim for damages, resolution of this vital issue between plaintiffs and warrantor was indispensable in determining the validity of the rights asserted by plaintiffs. Had not the Supreme Court found the trial court had jurisdiction to try the petitory dispute raised between warrantor and plaintiffs, it would not have remanded the matter to the trial court for trial of the merits of this very issue.

I find no merit in plaintiffs’ contention the former action may not be plead as res judicata because the trial court lacked jurisdiction to try the petitory ' dispute between plaintiffs therein and warrantor Annie White who set up an adverse claim of ownership to the land involved. The former action was decided by the trial court prior to January 1, 1961. The decision therein by this court was rendered April 10, 1961. LSA-C.C.P. did not become effective until January 1, 1961. Therefore the matter was controlled by the provisions of our former Code of Practice. See Section 4(B) (2) (a) and (b) of the act implementing LSA-C.C.P. appearing at LSA-C.C.P. Volume 1, page 748.

Louisiana Code of Practice Article 384 states:

“The warrantor thus cited is bound to appear before the court in which the principal demand has been instituted; even when he resides out of its jurisdiction, in order to defend the suit for the defendant; he may plead every exception in defending the cause which the defendant himself might have pleaded; even such as are personal to such defendant.”

Applying the foregoing codal authority, Jones v. Louisiana Oil Ref. Corp., 3 La. App. 85, held that a warrantor of defendant is bound to appear and cannot successfully except to the jurisdiction of the court even though he resides out of the jurisdiction of the tribunal in which he is called.

There appears considerable doubt whether, under our former Code of Practice, venue of a petitory action was jurisdictional in nature. Comment (b) to LSA-C.C.P. Article 44, states:

“(b) The general rule under the 1870 Code seems to be that venue is waivable, either by an appearance without objection to the venue, or by default. But the question is not free from doubt. In a recent court of appeal decision, it was held that the right to be sued at one’s domicile is jurisdictional and can be urged even after default, and by the court on its own motion. Automobile Insurance Co. of Hartford, Conn. v. Thornton, 56 So.2d 308 (La.App.1951).”

Plaintiffs’ reliance upon LSA-R.C.C. Articles 840, 1290 and 1291, as decisive of the issue that the trial court lacked jurisdiction to try the issue of ownership in the prior action, is without foundation. Article 840, above, deals solely with venue in boundary actions; Articles 1290 and 1291, above, are concerned only with venue in partition suits. Code of Practice Article 165(1), cited by plaintiffs, is irrelevant in that it applies only to actions for partition. Moreover, Code of Practice Article 165(8) is also inapplicable to this question since the Supreme Court in the former action chose to find the trial court possessed jurisdiction by virtue of Code of Practice Article 165(9).

Under our former Code of Practice it was well settled that a petitory action constituting the principal demand could be brought either where the property was situated or at the defendant’s domicile. Blanchard v. Ternant, 4 Mart. (N.S.) 188; Municipality No. 2 v. Garland, 11 Rob. 387; Maduel v. Tuyes, 30 La.Ann. 1404; State v. Buck, 46 La.Ann. 656, 15 So. 531; Reugger v. De Brueys, 146 La. 283, 83 So. 556.

Assuming, for argument’s sake, the matter of venue in a petitory action was jurisdictional when the former action was tried, present defendant, when called in warranty, could not successfully except to the jurisdiction of the trial court because of the exception provided in Code of Practice Article 384. In addition, warrantor’s exception to the jurisdiction in the prior action was expressly overruled by the Supreme Court and she was ordered to try the issue of ownership on the merits. Under such circumstances, it cannot reasonably be argued the trial court lacked jurisdiction.

I find the cause of action in both cases to be identical between plaintiff and defendant. On remand of the former suit to the trial court the issues tried were (1) warrantor’s denial of plaintiffs’ ownership and assertion of warrantor’s title, and (2) the validity of warrantor’s alleged title through the 1927 tax sale to Smith and Smith’s subsequent transfer to warrantor. On appeal, this court held warrantor’s contentions that the notice of tax sale was sufficient and the description in the tax deed adequate to sustain the sale for unpaid taxes. This court also found as a fact that there was no agreement between plaintiffs and Annie Smith White to the effect plaintiffs allowed the latter party and her children to reside on the property provided she paid the taxes thereon. In addition, this court sustained warrantor’s plea of prescription provided for in Louisiana Constitution of 1921, Article X, Section 11. In the former action we noted: “We are of the opinion, as heretofore stated, that the tax title was good and valid.” The same identical issues are presented in this action.

It is settled law that regardless of the form or procedure by which the same issue or question is presented between the same parties, whether by petition, exception, rule or intervention, if the same issue or question recurs between the same parties, even under a different form of procedure, the exception of res judicata estops further proceedings in the matter. Carbajal v. Bickmann, 192 La. 56, 187 So. 53; Greenwood Planting and Mfg. Co. Limited v. Whitney Central Trust and Savings Bank, 146 La. 567, 83 So. 832; Quinette v. Delhommer, La.App., 165 So.2d 900. These cases hold that issues resolved between one or more third parties and one or more principal parties in a given action, form the basis for a plea of res judicata in a subsequent suit between these same parties even though all of the parties appear as principals in the second suit. I believe this rule is dispositive of the case at hand. The only difference between the cause of action presented in White v. Lockhart, above, and this case is that in the prior action the question of title was raised between the same parties by third party action whereas here the identical issue is contested by the parties both appearing as principals.

The thing demanded in the prior action as a result of the claim of ownership asserted by warrantor therein, is identical to that involved in the case at hand. In both instances ownership of the same tract of land is in contest.

I also find the qualities of the parties in each instance are identical. In both cases plaintiffs are claiming as heirs of Green B. White and defendant Annie Smith White asserts title by virtue of the same tax sale and subsequent acquisition from the tax sale purchaser.

I find no merit in plaintiffs’ contention that the exception of res judicata is inapplicable herein because the issues in the case at hand are different. Plaintiffs rely, in this respect, upon their plea of fraud which was alleged for the first time in this action. This issue is settled by Brown Land and Royalty Co. v. Pickett, 226 La. 88, 75 So.2d 18. In the cited authority the Supreme Court held that parties litigant in a petitory action, whether plaintiff or defendant, must set up whatever title or defense they may have. Failure to assert a claim or right will, under the doctrine of res judicata, bar a second suit based on a right or claim which existed at the time of the first suit even though omitted therefrom. The reason for the rule is the orderly and expedient handling of cases in the courts. The ills to be avoided are congested dockets and protracted, repeated litigation of the same dispute and the expense and uncertainty incident thereto.

Nor do I find a variance of contending parties in the case at bar. All claimants herein were either parties or privies of parties in the former suit.

The Supreme Court determined the plaintiffs in the prior action to be Luther A. White, Curtis White, Allen White, Mrs. Bessie White Beard, Everett D. White and David White. Plaintiffs in this suit are: Everett White, Mary W. Beard, Allen White, Curtis White; James Vernon White and Luther A. White, individually, and on behalf of David White, Mary W. Byers and Minnie White Nichols. Mary White Byers, Tom H. White and William David White were the only children of decedent’s first marriage. Mary White Byers sold her interest to Margaret White Browning, Elisha White and Abbie R. White, children of the third marriage and defendants herein. Tom White left two sons, David White and Everett White. In this action and the former suit as well, Everett White was a party plaintiff. David White, now deceased, was also a plaintiff in the prior suit. David White left two children, namely, Thomas E. White, who disclaims all interest in the property, and John David White, Jr., who is a party plaintiff herein. Mary Elizabeth White Beard, the only daughter of Tom H. White, was a party to the first suit and is a party in this action. William David White died leaving two children, Allen White and Curtis White, both of whom were plaintiffs in the first suit and appear herein in that same capacity.

Of the three children of decedent’s second marriage, two, namely, James Vernon White and Minnie White Dirr Nichols, have sold their interests to Margaret White Browning, Elisha White and Abbie R. White. Luther A. White was a party plaintiff in the prior suit and is also plaintiff in this action.

The authority of the thing adjudged applies to the parties and their privies. The term “privies” includes and encompasses the representatives and successors, including any person having a legal right or interest in the subject matter of the prior suit derived through succession, assignment or transfer from the litigant who asserted the right. The term “privies” also includes any person whose legal right or interest in the subject matter of the former action was asserted by his legal representative such as the husband asserting a community claim of the wife or a tutor advancing a claim of his minor ward. Coates Equipment and Service, Inc. v. Glover, et al., La.App., 181 So.2d 455. John David White, plaintiff herein but not in the former action, is bound by his father’s appearance as plaintiff in the first suit. All plaintiffs at bar were either parties or the privies of parties in the former action.

Neither do I find any variance in the contending parties insofar as concerns defendants herein as alleged and urged by plaintiffs. In the first action Annie White was sole defendant insofar as concerned the ownership issue raised when she was called in warranty. In this action, defendant’s four children, Maggie W. Browning, Elisha White, Alma White Martin and Ab-bie R. White, are joined as defendants. It is significant that defendant’s four children do not claim any interest in the property as heirs of their deceased father. They also recognize the validity of defendant’s acquisition from W. H. Smith. On the contrary, the record discloses these children concede their mother’s ownership, Maggie W. Browning, Elisha White and Abbie' R. White have acquired by quit claim deeds the interests of Mary White Byers, James Vernon White and Minnie White Dirr Nichols. A vendee is privy to his vendor and stands in the shoes of his vendor insofar as the principle of res judicata is concerned. Quinette v. Delhommer, above. The same rule applies to the transfer of defendant Annie Smith’s interest to her daughter, Alma White Martin, subsequent to institution of this present action.

The children of decedent’s third marriage are joined as defendants on the basis of alleged agreements between them and their mother giving the children some interest in the land. In this respect the children would be privies of their mother, Annie Smith White. As such, the plea of res ju-dicata available to her is also available to them. Since the stipulated facts recite that the children of the third marriage disclaim any interest as heirs, the sole dispute as to ownership is between defendant Annie Smith White and plaintiffs.

Lastly, plaintiffs maintain the demands in the two actions differ in that the present suit seeks recovery of rent allegedly due by the children of the third marriage by virtue of their occupancy of plaintiffs’ fractional interests in the property. No such claim is made against defendant Annie Smith White. Plaintiffs cannot, by injecting new issues as to new parties, avoid the effect of the principle of res ju-dicata as regards different issues previously adjudicated adversely with another party. To so hold would completely emasculate the concept of res judicata. Admittedly, the children of the third marriage may not plead res judicata as to plaintiff’s claim for rent.

The rent claim, however, is amenable to the exception of no cause of action filed by the children of the third marriage. Out law is settled that a co-owner is entitled to possess the property held in common without incurring liability to his co-owners for rent. Wagner v. Wagner, La.App., 134 So.2d 670. Accepting the allegations of the petition as true insofar as it seeks recovery of rent from the children of the third marriage, plaintiffs’ petition states no cause of action.

I respectfully dissent.

Rehearing denied.

LANDRY, J., dissents from refusal to grant a rehearing.  