
    (91 South. 832)
    No. 23470.
    GRIFFING et al. v. TAFT.
    (Jan. 2, 1922.
    On Rehearing, April 22, 1922.)
    
      (Syllabus by Editorial Staff.)
    
    1. Quieting title 4&wkey;46 — Issue in suit to establish title to land stated.
    In an action under Act No. 38 of 1908, to establish title to land not in the actual physical possession of either party, the judge is called on to decide which of the claimants is the owner of the land in dispute.
    2. Taxation <&wkey;805(3) — Defect in assessment on which tax title based held cured by prescription of three years.
    That property adjudicated to the state under Act No. 47 of 1873 for taxes was not assessed to the record owner was cured by the prescription of three years provided by (Jonst. 1898, art. 233, where it was not shown that such alleged owner resided on the property.
    
      3. Taxation <&wkey;>789(l) — Tax deed held prima facie evidence of valid sale.
    A tax deed for land adjudicated to the state for taxes, under Act No. 47 of 1873, is prima facie evidence of a valid tax sale.
    4. Taxation <&wkey;623 — Assessment of property to one who had parted with title did not entitle him to notice before adjudication to state for taxes.
    The mere assessment of land to one who had parted with the title thereto, and who was not shown to have subsequently Acquired title, did not constitute him the owner per se, and where he was not the record owner he was not the delinquent tax debtor to whom notice was required to be given to pay the tax before adjudication of the land to the state for taxes, under Act No. 47 of 1873.
    5. Taxation <&wkey;>805(3) — Name in which property assessed, etc., immaterial as to prescription.
    It is immaterial as respects prescription in favor of a tax title under Const. 1898, art. 233, whether an assessment was made in the name of one person or another, or in no name, or whether the owner not in possession was notified, or whether the sale was advertised.
    6. Taxation <&wkey;65i — Recording of name and amount of tax held valid seizure for delinquent taxes.
    Under Act No. 47 of 1873, § 8, the recording in the mortgage book of the name and amount of a tax to be stated in the delinquent lists constitute a valid seizure of the property for the delinquent taxes then due.
    7. Taxation &wkey;>789( I) — 'Tax deed valid prima facie as against claim that- title never confirmed.
    A duly recorded tax deed is prima facie evidence of its validity as against the claim that title to the lands was never confirmed by the state auditor, as required by Act No. 47 of 1873, § 9.
    8. Taxation &wkey;>805(3) — That part of taxes prescribed before tax sale cured by prescription.
    Under Const. 1898, art. 233, providing that no sale for taxes shall be set aside after six months, or after three years if no notice was given, except on proof of dual assessment, or of payment before sale, the objection that part of the taxes for which the land was sold were prescribed cannot be urged after the expiration of the prescriptive period.
    9. Taxation &wkey;>796(3) — One whose land is sold to state for taxes cannot attack validity of subsequent sale by state.
    Under Code Prac. art. 15, providing that an action can only be brought by one having a real and actual interest, one whose title to land has been divested by a valid sale to the state for taxes cannot attack the validity of a subsequent sale by the state, or of an adjudication to the state for taxes for subsequent years.
    On Rehearing.
    10. Descent and distribution <®=>1I9(2) — Succession; institution of suit claiming title by inheritance is acceptance of succession.
    Under Rev. Civ. Code, art. 988, the institution of a suit claiming title to property by inheritance from a deceased person is an unconditional acceptance of the succession.
    11. Descent and distribution <&wkey;>!28 — Succession; heirs cannot recover property where ancestor had warranted title.
    Under Rev. Civ. Code, art. 988, relative to acceptance of a succession, and articles 1013 and 1423, relative to its effect, plaintiff, claiming title to property by inheritance from a deceased person, has no right of action if his deceased ancestor in disposing of it obligated himself to warrant and defend the title.
    12. Descent and distribution <&wkey;>!28 — Succession; heirs accepting succession bound by warranty, though they did not know thereof.
    A warranty clause in a deed obligated the vendor without registry; and his heirs, who have accepted his succession unconditionally, assumed the obligation, whether or not they were aware of it, when they accepted the succession.
    Dawkins, L, dissenting.
    Appeal from Eighth District Court, Parish of Franklin; S. R. Holstein,-Judge.
    Suit by Jabe Griffmg and others against Charles P. Taft. From a judgment for plaintiffs, defendant appeals.
    Judgment annulled and reversed, and suit dismissed.
    G. P. Bullis, of Vidalia, for appellant.
    W. H. Thompson, of Winnsboro, for appellees.
    By the WHOLE COURT.
   LAND,' J.

This is a suit under Act 38 of 1908 to establish title to the following land, not in the actual physical possession of either party, situated in Franklin parish, Louisiana. The property in dispute is described as the N. E. 14 and S. % of- section 3, township 12, range 9, and S. E. 14 of N. E. % of section 4, township 12, range 9. •

Act 38 of 1908 was intended as a particular form of action to adjudicate titles to real estate, where neither of the claimants is in actual possession of the land. In such action the judge is called upon to decide which of the claimants is the owner of the land in dispute.

Plaintiffs claim this land by inheritance from their father and grandfather, Jabish Griffing, and, in the alternative, they claim one-half of this land by inheritance from their mother and grandmother, the first wife of Jabish Griffing.

Jabish Griffing married his first wife, Marian Harris on, in 1837. Pie bought the land in controversy from the United States in 1844 and 1847.

Marian Harrison died in 1849. There were six children born of this marriage. At the date of the filing of this suit, October 3,1917, all of these children were dead, except Mrs. Sue Harris, a daughter of Jabish Griffing, and three children of Jabe N. D. Griffing, a deceased son of Jabish Griffing. The surviving daughter and these grandchildren are the sole heirs of Jabish Griffing and Marian Harrison, and are the plaintiffs in this suit. The property in dispute is community property.

Jabish Griffing married again in 1859; his second wife being Mary Poindexter. No children were born of this marriage.

Plaintiffs rely upon the patents issued to Jabish Griffing by the United States in 1844 and 1847, as their muniment of title. - Defendant claims this land by mesne conveyances from Jabish Griffing, and also by mesne conveyances from a tax sale to the state of Louisiana in the year 1876.

In the year 1867, after his second marriage, Jabish Griffing made a dation en paiement, by authentic act, of all of the property involved in this suit, to the Union Bank of Louisiana.

In 1876, the tax collector of Franklin parish adjudicated to the state, under Act 47 of 1873, the S. Va and N. E. % of section 3, township 12, range 9, “the same having been seized for the payment of taxes due by the Union Bank of Louisiana as owner thereof according to the tableau and_ assessment rolls for the year one thousand eight hundred„and seventy^ive.”

Plaintiffs allege that:

“The whole title of the defendant, Charles P. Taft, is based upon the forfeiture to the state of Louisiana by the tax collector of the parish of Franklin, pretending to be acting under Act 47 of 1873, and for the taxes of 1872, 1873, 1874, and 1875”

—and that said forfeiture to the state is absolutely null and void, and without any legal effect for the following causes and reasons, to wit:

“(A) That the assessment of said property was not in the name of the record owner of said property, as shown by the records of the parish of Franklin.”

The plaintiffs do not allege that Jabish Griffing was in possession of this property as owner at the time of these assessments. The title and possession of this property had passed by the authentic act of dation en paiement, executed by Jabish Griffing, to the Union Bank of Louisiana in the year 1867. Plaintiffs established the fact that Jabish Griffing lived in the parish of Franklin in 1872, 1873, 1874, and 1875, and died there in 1882; but the testimony in the record fails to disclose that he resided upon this property. This alleged defect, if any, was cured by the prescription of three years under article 233 of the Constitution of 1898, pleaded by defendant. Winn Parish Bank v. White Sulphur Lumber Co., Limited, 133 La. 282, 62 South. 907.

“(B) That no public notice was ever given, either to Jabish Griffing and your petitioners, who were the record owners of said property, or to the Union Bank of Louisiana, as required by Act 47 of 1873.
“(0) That no written or printed notice was given to the owners or agent of the lands, their father and themselves being the owners of said lands, to pay this tax, as required by Act 47 of 1873; also that no legal notice was legally given to the Union Bank of Louisiana as required by said act.”

The tax deed in this case is prima facie evidence of a valid tax sale. Plaintiffs have produced no evidence to show that such notices were not given. While the plaintiffs assert that Jabish Griffing was the owner of this property during these years, they have filed in the record no title to him from the Union Bank, nor, from any subsequent owner, to prove this assertion. The mere assessment to Jabish Griffing of this property during the years 1872, 1873, 1874, and 1875 did not constitute him the owner per se. ' He was not the record owner, as far as the proof shows, and therefore he was not the delinquent tax debtor to whom notice was due. The property was assessed in the name of the Union Bank of Louisiana, the record owner, during these years, and it was properly assessed to said bank. Moreover, it is immaterial (for the purposes of prescription under article 233 of the Constitution of 1898) whether the assessment has been made in the name of one person, or another, or in no name, or whether the ownef, not in possession, has been notified, or whether the sale has been advertised or has not been advertised. Weber’s Heirs v. Martinez, 125 La. 606, 667, 51 South. 679; Canter v. Williams, 107 La. 77, 31 South. 627; Crillen v. N. O. Terminal Co., 117 La. 349, 41 South. 645; Little River Lumber Co. v. Thompson, 118 La. 284, 42 South. 938; Terry v. Heisen, 115 La. 1080, 40 South. 461; Landry , v. McWilliams, 135 La. 659, 66 South. 875.

Plaintiffs have alleged numerous other grounds of nullity of the adjudication to the state in 1876; that no legal seizure wds ever made of said property; that there has never been recorded in the mortgage records of the parish of Franklin a description of the property described herein, with amounts due, as required by Act 47 of 1873; that there was not recorded in the office of the State Auditor a description of said property and the amount of taxes due on said property, as required by law. Counsel for plaintiffs has confused the requirements of Act 42 of 1871 with those of Act 47 of 1873, under which this property was adjudicated to the state.

Section 8 of Act 47 of 1873 requires only the name and the amount of the tax to be stated in the delinquent lists to be recorded in the mortgage book, and this was done in this case. This constituted a valid seizure of this property under said act for the delinquent taxes then due.

Plaintiffs allege that said title to said lands was never confirmed by the State Auditor, as required by section 9 of Act 47 of 1873. Plaintiffs have offered no proof to establish this fact, and the tax deed, duly recorded, is prima facie evidence of its validity.

Plaintiffs complain that said tax sale was null and void for the reason that the property was sold for the taxes of 1872, 1873, 1874, and 1875, when the taxes were prescribed, and when the tax collector was without legal right or warrant to sell .said property for back taxes beyond two years.

In the case of Board of Commissioners v. Concordia Land & Timber Co., 141 La. 264, 74 South. 927, this court said:

“The invalidity resulting from the inclusion of an amount for taxes that were not assessed, with the taxes that were assessed and for which the sale could be legally made, was nothing more than if the tax collector had, by some other mistake, augmented the amount of the taxes that were assessed.”

It might be argued with much force to a constitutional convention that a sale of property for taxes that have been paid is no better than a sale for taxes that have not been assessed, or that the owner of the property does not, for any other reason, owe. But we have this reason for recognizing a distinction between a sale for taxes that have been, even in part paid, and a sale for taxes a portion of which have not been assessed, or are not due for some other reason: That the Constitution of this state provides that no sale of property for taxes shall be set aside for any cause, except on proof of dual assessment, or of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption has expired, and within three years from the date of recordation of the tax deed, if no notice is given.

Plaintiffs do not set up a dual assessment, or that the taxes for which the property had been sold to the state were paid, and they cannot be heard to urge other exceptions. Quaker Realty Co. v. Purcell, 134 La. 1024, 1025, 64 South. 894 ; Slattery v. Heilperin and Leonard, 110 La. 86, 34 South. 139 ; In re Quaker Realty Co., Ltd., 127 La. 208, 53 South. 526 ; Cordill v. Quaker Realty Co., Ltd., 130 La. 933, 58 South. 819 ; Quaker Realty Co., Ltd., v. Purcell, 131 La. 496, 59 South. 915 ; Leader Realty Co. v. Lakeview Land Co., 133 La. 646, 63 South. 253.

We, therefore, conclude that the adjudication to the state of this property in 1876 was legal and valid, and therefore divested Jabish Griffing of all right, title, and interest in and to this property, except as to the S. B. *4 of i;he N. E. % of section 4, township 12, range 9, which was not included in this adjudication, but which was included in the dation en paiement made by Griffing to the Union Bank in 1867, and which plaintiffs, as far as this record shows, have never regained by title of any kind since that date. The S. E. % of the N. E. % of section 4, township 12, range 9, however, is embraced in deed from Fifth Louisiana Levee Board to the North Louisiana Land Company in 1898, one of the authors in one of the chains of title of the defendant. The North Louisiana Land Company also acquired another title to the land in controversy; L.Lemle sold it to Block, Lowenburg, and Ullman in 1882; Block, Lowenburg, and Ullman sold it to F. Lowenburg in 1887; heirs of F. Lowenburg sold it to North Louisiana Land Company in 1889; North Louisiana Land Company sold it to Buckeye Stave Company in 1898; and Buckeye Stave Company sold it to Charles P. Taft, defendant herein, in 1905. We also find the S. E. % of the N. E. % of section 4, township 12, range 9, embraced in a deed from Block, Lowenburg, and Ullman to F. Lowenburg in 1887; in deed of heirs of F. Lowenburg to North Louisiana Land Company in 1889; and in deed of North Louisiana Land Company to Buckeye Stave Company, the immediate author of defendant’s title, in 1905.

Plaintiffs are without shadow of title to this property, or any part of same, claimed by them in this suit. The dation en paiement from Jabish Griffing and the tax sale of 1876 to the state of these lands cut off all their rights to the land in controversy, and left them without interest to bring this suit.

Under Code of Practice, article 15, providing that an action can only be brought by one having a real and actual interest which he pursues, a person whose title to land has been divested by a valid sale to the state for taxes cannot attack the validity of a subsequent sale of land by the state. Quaker Realty Co. v. Labasse, 131 La. 997, 60 South. 661, Ann. Cas. 1914A, 1073 ; Quaker Realty Co. v. Purcell, 134 La. 1026, 64 South. 894 ; Marr v. Kane, 133 La. 629, 63 South. 246.

The plaintiffs, therefore, are without interest to attack the sale of this land by the state to Lemle in 1881 under Act No. 107 of 1880, and the sale by the state through its auditor of said property to the board of levee commissioners of the Tensas levee district under Act No. 77 of 1888, nor can they complain of dual assessment, prior payment in part, of the taxes assessed upon the property in 1884, as a basis of attack upon the adjudication to the state in 1885 of a part of their property for delinquent taxes of 1884, under act No. 96 of 1882.

We, therefore, conclude that plaintiffs have no title to the property in dispute in this case, and that the defendant claimant is the owner of the land involved in this litigation.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that the demand of plaintiffs be rejected and their suit dismissed at their cost.

O’NIELL, J., concurs in the result.

On Rehearing.

By the WHOLE COURT.

O’NIELL, J.

Of the several defenses urged against this suit, is one which was not discussed in the original opinion, but which Appears to be an absolute bar to the plaintiffs’ action. They are the direct descendant heirs, the forced heirs, of Jabish Griffing and his wife by first marriage, Marian Harrison Griffing. The land sued for belonged to the marital community. After the death of Griffing’s wife, and after he had married again, he transferred the land to the Union Bank of Louisiana, in satisfaction of a debt, represented by two promissory notes held by the bank, amounting to $3,865, on which the bank had brought suit against Griffing. At that time, of course, the children of his first marriage had inherited their mother’s half interest in the community property. Nevertheless, the deed given by Jabish Griffing to the bank purports to have conveyed title for the whole property, and the instrument, executed before a notary public and two witnesses, contains the following obligation of warranty, viz.:

“And the said vendor, for himself and his heirs, shall and will warrant and forever defend the said property against the legal claim or claims of all and every person or persons whomsoever, by these presents; and the said vendor hereby moreover subrogates the said purchasers to all his rights and actions of warranty against his own and all previous vendors of said land, to exercise said rights and actions in the same manner as he himself might have done.”

In this suit, plaintiffs claim title for the whole properts' by inheritance from the deceased, Jabish Griffing, and his deceased wife, Marian Harrison Griffing. In their petition they alleged that defendant claimed title by mesne conveyances from the Union Bank of Louisiana, and they set forth, with particularity, the various deeds — some being conventional transfers and some sales for taxes — under which defendant claimed title. They did not, however, in their petition, mention the deed from Jabish Griffing to the Union Bank of Louisiana. Their petition, therefore, disclosed a right of action. But defendant, in his answer, asserted and relied upon the deed from Jabish Griffing to the Union Bank of Louisiana; the warranty clause in which deed, in our opinion, deprives the plaintiffs of any right of action which they might have had to recover even the interest claimed by inheritance from their mother.

The institution of a suit claiming title to property by inheritance from a deceased person is an unconditional acceptance of his succession. Rev. Civ. Code, art. 988; McQueen v. Sandel, 15 La. Ann. 140 ; Brashear v. Conner, 29 La. Ann. 347 ; Sevier v. Gordon, 29 La. Ann. 440 ; McCall v. Irion, 41 La. Ann. 1126, 6 South. 845 ; Heirs of Ledoux v. Laveden, on rehearing, 52 La. Ann. 354, 27 South. 196. An heir who manifests an intention of accepting the succession unconditionally — that is, without the benefit of inventory — by doing an act which he would have no right to do' except as an unconditional heir (Rev. Civ. Code, art. 988), makes himself liable for the obligations of the deceased person whose succession he has thus accepted. Rev. Civ. Code, arts. 1013, 1423. Therefore the plaintiff in a suit claiming title to property by inheritance from a deceased person, and thereby manifesting the intention of accepting unconditionally the succession of the deceased person, has no right of action to recover the property if his deceased ancestor, in disposing of the property, obligated himself to warrant and defend the title. Walker v. Fort, 3 La. 535 ; Stokes v. Shackleford, 12 La. 170 ; Smith v. Elliot, 9 Rob. 3 ; Gusman v. Berryman, Man. Unrep. Cas. 199 ; McQueen v. Sandel, 15 La. Ann. 140 ; Sevier v. Gordon, 29 La. Ann. 440 ; Chevalley v. Pettit, 115 La. 407, 39 South. 113 ; Cochran v. Gulf Refining Co., 139 La. 1010, 72 South. 718 ; Berry v. Wagner, No. 22933, post, p. 456, 91 South. 837, decided to-day.

In Walker v. Port, it was said:

“The heir is bound by the warranty of the person, whose inheritance he accepts.”

In Stokes v. Shackleford, it was said: -

“The heir cannot claim against the warranty of His ancestor, but is estopped by it from asserting title, although the title never vested until the ancestor’s death.
“If the vendor sells without title at the time of sale, but acquires title afterwards, it will accrue to the benefit of the vendee.
“The obligation of warranty descends to the héir of the vendor, and one of its first objects is, the buyer’s peaceable possession of the thing sold. In this respect, the obligation is indivisible, although in regard to damages consequent on eviction, each heir may only be bound for his virile share.”

In Smith v. Elliot, it was said:

“The obligation not to disturb, and even to maintain the purchaser in the quiet enjoyment of the thing sold, is one to which the plaintiff succeeded on accepting the estate of the vendor as heir or coheir. It is an indivisible obligation so far as it repels the coheir who seeks to disturb the title of the purchaser.”

In Gusman v. Berryman, Mr. Justice White, late Chief Justice of the Supreme Court of the United States, said, referring to the plaintiff in the case:

“Could he be successful in ousting his mother, he and his coheirs would be her warrantors, and hence the doctrine ‘Quern de evictione tenet actio eundem agentem repellet exceptio’ is fatal to his pretensions. He claims that he has a new title. Grant it. His new title comes from his coheirs, and he cannot undo as an actor that which he would be compelled to make good as a warrantor. Even did he and his coheirs, and he through them, have a title emanating from a different source than their father, they could not be heard under such circumstances to destroy the very right they are bound to maintain.”

In McQueen v. Sandel, it was said:

“Where the averments in a petition amount to an acceptance of- a succession, the -plaintiff is estopped from contesting a valid title derived from the person to whom he succeeds; he is the warrantor of the title.”

In Sevier v. Gordon, it was said:

“Heirs who, when they attain majority, sue for a partition of the property of the succession, and enter into its possession, thereby accept the succession purely and simply. They cease to be beneficiary heirs, and become personally bound-, for the debts of the succession.”

In McCall v. Irion, it was said:

“A party suing in virtue of her right as simple heir, for property that has descended to her as an inheritance, occupies the exact attitude before the court as would the ancestor himself, as plaintiff.”

In Cochran v. Gulf Refining Co., where the plaintiffs sued to annul a contract made by their mother after their father’s death, purporting to extend the term of a mineral lease on community property, it was said:

“Pretermitting the question whether the widow, as owner of one half of the land and usufructuary of the other half, could bind the co-owners by her contract extending the term of the'lease, she bound herself by -that contract; and, by accepting her succession unconditionally and partitioning the land that was subject to the lease, which she was bound to respect, her heirs assumed her obligations with respect to the land, and were thereby bound to recognize the contract of lease. See R. O. O. 1013.”

As we explained in the opinion handed down to-day in Berry v. Wagner, No. 22933 (La.) 91 South. 837,1 the ruling in Tessier v. Roussel, 41 La. Ann. 474, 6 South. 542, 824, and the opinion rendered on rehearing in Chevalley v. Pettit, 115 La. 407, 39 South. 113, are not in conflict, but in accord, with the decisions which we have cited.

It is argued by counsel for plaintiffs that, when they accepted the succession of their father, by bringing this suit, they were not aware that he had undertaken to dispose of the property and had obligated himself to warrant and defend the title. The argument is founded upon the fact that the deed was not recorded in the parish of Franklin, in which the land is located. The deed, however, was recorded in the parish bf Tensas, in which the land was then embraced. Besides, the warranty clause in the deed obligated the vendor, without registry, ■ and the heirs who have accepted his succession unconditionally have assumed the obligation, whether they were or were not aware of it when they accepted the succession. Heirs claiming by inheritance, are not in the situation of third parties. It was said in Gus-man v. Berryman, supra:

“The plaintiff and his coheirs are not third persons, nor is the community between the plaintiff and his wife a third person quoad the plaintiff himself, the head of and master of the community. A title good without registry as to the head of the community is likewise good as to the community.”

The decree heretofore rendered by this court is now reinstated and made the final judgment of the court.

HAWKINS, X, dissents.

THOMPSON, X, recused. 
      
       Post, p. 456.
     