
    No. 12,443.
    Mary L. Genella and Husband vs. C. A. McMurray et als.
    This suit was brought to compel the defendant to take the title tendered.
    Many years prior to the adjudication of the property the tax deed pleaded by the defendant as having the effect of invalidating the title tendered, had been canceled and erased from the record.
    A rule on an administrator to cancel a tax title is as effective as any other process, if those in interest remain acquiescent for years after the judgment was rendered on the rule.
    It not appearing of record that there was an adverse title, the title tendered was legal.
    APPEAL from the Oivil District Court for the Parish of Orleans. Rightor, J.
    
    
      Jhouque & Pomes for Plaintiffs, Appellees.
    
      -James B. Rosser, Jr., for Defendants, Appellants.
    Submitted on briefs April 1, 1897.
    Opinion handed down April 12, 1897.
    Rehearing refused May 31, 1897.
   The opinion of the court was delivered by

Breaux, J.

This was an action brought by the plaintiff against the defendant to compel the latter to accept the title tendered.

The property the title to which was tendered, was adjudicated to the defendant by public auction.

The defendant declined to accept the title on the ground that the property was owned by the heirs of Joseph Holtz, and that, in consequence, no title passed by the adjudication.

The defendant avers that the property was acquired by the late Joseph Holtz on the 7th of May, 1884, at tax sale. The property had been assessed in the name of Joseph Billgery. A rule was taken by the administrator of his succession, on the administrator of the succession of Joseph Holtz, directing him to show cause why the registry of this tax title should not be canceled and erased.

The defendant contends that it was an illegality to proceed by rule to have the tax deed held by the succession of Joseph Holtz canceled and erased.

With this exception it appears that the title of plaintiff was legal in every respect, and a title which the defendant consents to take. The controversy is limited to the Holtz tax title, now canceled and erased.

The record before us does not disclose any irregularity which would justify the defendant in refusing to take title to the property.

The fact that the heirs of Billgery at one, time owners of the property, chose to proceed by rule against the administrator to erase and cancel a tax deed of record, would not, of itself render the judgment less binding upon the administrator of the succession of Holtz, and upon those he was in that capacity authorized to represent, if no objection to the mode of proceedings was made at any time.

The administrator could represent the succession with the assent of the heirs of Holtz. It was not brought to our knowledge that any of the heirs objected. To this day, they, at least, tacitly assent to the judgment.

A judgment appointing an administrator constitutes prima facie proof of his capacity to stand in judgment.

Years have elapsed since the judgment ordering the cancellation of the tax deed was rendered. As we appreciate the issues, the owners of the original title have remained in possession and no claim of any illegality was urged in the proceedings in which cancellation of an illegal tax deed was ordered.

The law, in our view, was complied with and the judgment ordering the erasure of this tax title was rendered, we think contradictorily with those in interest. This being the case, we have found, after examination of the record before us, no invalidity in the title tendered to the defendant.

It is therefore ordered, adjudged and decreed that the judgment appealed from, ordering the defendant to comply with the adjudication of the property described in plaintiff’s petition and condemning him to pay the price and interest, is affirmed.

ON Application nob Rehearing.

Blanchard, J.

Defendant complains that there is error in the judgment herein rendered, in this:

That it affirms the'judgment of the court a qua condemning him to take title and to pay eight per cent, per annum interest on the purchase price from the date of adjudication.

The property was adjudicated at public auction to defendant on November 15, 1893, for the price of two thousand three hundred and eighty dollars, upon “terms of one-third or more cash, balance in one or two years, secured by vendor’s lien, bearing eight per cent, per annum interest from date of sale until final payment.”

In Duruty vs. Musacchi, 42 An. 360—a case similar to the present one — it was held that defendant was not in default for non-payment of the cash portion of the price until the date of the judgment appealed from, and, therefore, owed interest from that date only. And on rehearing it was held that the court below had erred in requiring defendant to pay more than legal interest on the cash instalment, notwithstanding the act stipulated seven per cent, as the rate of interest on deferred payments.

Following the rule laid down in that case, we now hold that defendant is answerable for interest on the cash instalment of his purchase — one-third of the purchase price — only from the date of the judgment appealed from, February 1, 1897, and at the rate of five per cent, per annum.

It is pertinent to remark just here that the contention of defendant, in regard to overcharge in the matter of interest, was brought to the attention of this court only in the application for rehearing. It was not discussed or referred to at all in the original brief filed in his behalf.

It is now ordered that our previous decree herein be amended so as to charge defendant with five per cent, per annum interest on the cash portion of the purchase price — one third thereof, from February 1, 1897, and that as thus amended the judgment appealed from be ■affirmed at appellee’s cost.

It is farther ordered that our previous decree as thus modified remain undisturbed.

Rehearing refused.  