
    Witham DUFOUR and Sidney A. Rovira et al. v. Houston L. WOOD, Jr., et al.
    No. 6992.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    
      Jorda S. Derbes, Derbes & Derbes, M. Arnaud Pilie, Pilie, Pilie & Landry, New Orleans, for plaintiffs-appellees.
    William M. Campbell, Jr., W. Matthew Campbell, III, New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA, BOU-TALL, MORIAL and BEER, JJ.
   REDMANN, Judge.

This is a class action for a declaratory judgment concerning title to land sold in 1916 for city taxes to Third District Land Company and acquired from the tax purchaser by the husband of a grand-daughter of one of the tax debtors, for precisely the price of redemption but by act which took the form of a cash sale without warranty, executed six days (including a weekend) after the period for redemption had passed.

The trial court held that the heirs of the tax debtors owned the property, on the theory that the purported cash sale was but a redemption of the property which therefore restored it to pre-tax-sale ownership. We affirm.

Facts and Factual Inferences

Antoine Rovira bought the land here involved (lots 2, 3 and 6 of Section 14 in the Third District of New Orleans) for $63.68 at an 1861 auction (at which he also bought another tract in Section 5). Antoine died in 1871.

On July 26, 1916, property assessed to “Heirs of A. Rovira and wife” and described as lots 2, 3 and 4 (sic) of Sec. 14, etc., was sold for 1913 taxes to Third District Land Co., Ltd. for the price of $67.50. That price included the tax of $41.80, interest $12.25, advertising $7.45, costs $1.00, and notary’s fee $5.00.

On Wednesday, August 1, 1917, by act before notary Gabriel Fernandez, Jr., Third District Land Co., Ltd. transferred lots 2, 3 and 6 (sic) to Houston L. Wood (husband of Claire Valloft), by the use of a printed form of cash sale in which the printed warranty clauses were replaced by the typewritten clause “without any warranty whatsoever”. The price of this transfer was the price for redemption of the tax sale under then-effective La.Const.1898 art. 233: “the price given, including costs, and twenty per cent thereon”. The $81.00 price was exactly the $67.50 price including costs at the tax sale plus 20% thereof, or an added $13.50. The date of this formal notarial act of transfer was six days (including a week-end) beyond the “space of one year” during which Const. 1898 art. 233 made tax sales redeemable; however, a typewritten “JULY” in the printed form’s blank for the month bore the handwritten superscription “August”. The factual inference (presumably that of the trial judge) is therefore permissible, from all the circumstances, especially that a corporation should transfer land it bought at tax sale for its redemption price, that the agreement to transfer was made some time before the “space of one year” for redemption, and that the formal act of transfer was merely delayed by the necessary paperwork.

On August 6, 1917, the same notary Fernandez, before whom the sale to Wood was passed five days earlier, went with John Rovira, “representing the Heirs of A. Rovira and wife,” to redeem the same lots 2, 3 and 6 from a July 23, 1917 sale to A. J. Kolwe for state taxes of 1916 assessed in the name of Heirs of A. Rovira and wife. Kolwe, however, according to Fernandez’s proeés verbal, did not appear at his place of business for over an hour, as a result of which Fernandez executed and recorded a proeés verbal reciting the payment of the redemption amount to the State Tax Collector (as authorized by La.Acts 1898 No. 170 § 65). Attached to that proeés verbal was the proposed act of cash sale “without any warranty whatsoever” which Fernandez had prepared to accomplish the “redemption” from Kolwe, the same form as the no-warranty cash sale form of the Third District to Wood transfer, whose character as sale or redemption is the heart of this lawsuit. However, unlike the Third District to Wood form, this form recited the names of the heirs, all of whom were said to be represented by John E. Rovira, a resident of Jefferson City, Missouri, “temporarily sojourning in New Orleans”. (John’s authority to act for the other heirs is not shown.) Thus the “cash sale” attached to the proeés verbal is ambivalent in its effect on our question, tending to prove, on the one hand, that our “cash sale” for the redemption price was intended as a redemption (since that form was used in both cases) but, on the other hand, that a redemption in favor of the heirs of Rovira was not intended (since they are made the “vendees” in the Kolwe form but not in the Third District to Wood form).

Other proven facts include that the subject property is listed in some and omitted in some succession proceedings of various of the heirs of Antoine Rovira; that Wood purchased several other pieces of real estate in his own name, title to none of which remained in his name at his death (near penniless); that the subject property has at all times subsequent to the Third District to Wood transfer remained assessed in the name of heirs of Rovira; and that taxes on the property have been paid over the years, although the record does not show by whom.

Preliminary

This matter was first heard by a three-judge panel of this court which proposed non-unanimously to reverse the trial court’s judgment in favor of plaintiffs. That panel ordered the matter resubmitted to a five-judge panel “as required” by La.Const.1974 art. 5 § 8(B). Defendants argue that resubmission was not required, in view of art. 14 § 23’s provision that “actions . existing on the effective date of this constitution shall continue unaffected.” Defendants cite Traigle v. P. P. G. Industries, Inc., 3 Cir. 1975, 315 La.App. 859, so ruling, but that ruling was reversed by the supreme court, 317 So.2d 625.

Res Judicata

Defendants filed in this court an exception of res judicata or, alternatively, estop-pel by judgment, on the basis of a monition proceeding which they filed while this suit was in progress and in which they obtained a judgment against a lawyer appointed curator ad hoc for the heirs of Thompson (see n. 1) and the heirs of Rovira (alleging inability to find any of the heirs). The judgment was allegedly obtained 17 days after trial of this suit but 14 days before judgment in this suit in the trial court; however, our record does not contain any such judgment. We therefore may not consider this exception; C.C.P. 2163.

The “Cash Sale” a Redemption

The evidence supports the trial court’s conclusion that the Third District to Wood transfer was intended as a redemption. The supportive evidence includes that the price Wood paid to the corporate purchaser at the tax sale was precisely the amount required to redeem; that notary Fernandez used the printed form of a cash sale (with warranty clauses replaced by “without any warranty whatsoever”) for one other act known to be an act of redemption; that Wood was the husband of a granddaughter of one of the tax debtors and was to that extent identifiable with the tax debtors; that the Rovira heirs five days after Wood’s “purchase” redeemed the property from another tax sale; and that Wood never disposed of this property although he apparently possessed nothing but a ten-year-old automobile at his death in 1969. This evidence supports the conclusion that Wood procured the transfer from the corporate purchaser by exercising the tax debtors’ right to redeem.

We conclude that when any person who is identifiable with the tax debtors exercises the tax debtors’ right of redemption by purchasing from the tax sale purchaser at the redemption price, the purchase must be deemed a redemption for the benefit of the tax debtors, If it were the intention of the tax debtors (all the then heirs of Rovira) to donate their right of redemption to Wood, that intention could only be effected by a donation in authentic form. Moreover, the redemption just five days later by one of the Rovira family of a sale for state taxes not only casts doubt on any family intent to donate its right of redemption to Wood; it also compels the inference that the family had not abandoned (or overlooked) this property, and therefore — if, indeed, Wood fraudulently exacted a sale to himself (and, by operation of community property law, his wife) rather than also intended a redemption as did the tax-sale purchaser in selling for the redemption price — our case is distinguished from Staples v. Mayer, 1892, 44 La.Ann. 628, 11 So. 29 (in which a complete stranger’s fraud in posing as a creditor of the tax debtor and thereby obtaining a transfer to himself from the tax purchaser for the redemption price was held no fraud against the tax debtors, who had done nothing towards redemption of the property).

We first note that, unlike Hodgeson v. McDaniel, 1957, 233 La. 180, 96 So.2d 481, this is not a case of a third party’s rights being involved. Accordingly, the public records doctrine does not apply and does not make any claim “utterly null and void,” C.C. 2266.

We second observe that the parol evidence exclusionary rule is as applicable to acts under private signature as to authentic acts, C.C. 2238 (see also C.C. 2242). Thus the circumstance that the Third District to Wood transfer is by authentic act is not material to our inquiry; the parol evidence rule is no stricter because of that circumstance.

The parol evidence rule has, in any event, but limited application to our case. Plaintiffs need not show that Wood acted for them or their ancestors. All that plaintiffs need show is that Wood redeemed the property rather than bought it, and it is the law that declares the result of that redemption. The principal element in the showing of redemption is not parol evidence but evidence within the very act of transfer from Third District to Wood, namely the price: the price is the price of redemption and not of sale. The second element similarly is recited in that act of transfer, namely that Wood was the husband of Claire Valloft. If (as plaintiffs’ counsel suggest) we suppose a timely suit to rescind the Third District to Wood transfer for lesion beyond moiety (C.C. 2589), would any court refuse to receive parol evidence to show that it was a redemption?

A tax sale purchaser from whom redemption is sought:

“is not called on to make a cession or transfer of his rights in favor of any other person. All that he has to do on payment [of the price of redemption] made to him is to surrender the rights which he had acquired by his purchase, leaving the result of that surrender or relinquishment to inure to the party or parties who by law would be entitled to the benefit of the same. . . .We think that anyone may, for the advantage of the owner, as negotiorum gestor, make payment for him of the redemption money, even without his knowledge. Civ. Code, arts. 2133, 2134.” State v. Register of Conveyances, 1904, 113 La. 93, 36 So. 900.

As doubtless did the trial judge, we deem it established that Wood intended either to act for the Rovira family in redeeming the property for the family, or to usurp the family’s right to redeem in order to appropriate the family’s property to himself, at the same time that the family itself (unlike the tax debtors in Staples v. Mayer, supra), through John Rovira, was redeeming the property from another tax sale and therefore had not abandoned the property to the tax purchaser.

In either case, we hold that Wood’s act was one of redemption of the property from the tax sale, the result of which was to restore the property to the tax debtors.

Affirmed.

BEER, J., concurs in result.

BOUTALL, J., dissents.

BOUTALL, Judge,

dissenting.

This is a title dispute brought by the heirs of Antoine Rovira and his wife against the heirs of Houston L. Wood involving a tract of land in the Third District of the City of New Orleans. The deraignment of title is rather complex, but the issue narrows down to the effect of a Notarial Act passed before Gabriel Fernandez, Jr. dated August 1,1917, purporting to be a sale from the Third District Land Company, Ltd. to Houston L. Wood of the subject property described as lots Nos. 2, 3 and 6, in Folio 283, Section 14, Township 12 South, Range 12 East, containing 97 & 97/100 acres. The Rovira heirs claim title based upon an Act of Sale dated February 20, 1861 from the City of New Orleans to Antoine Rovira, and contend that the above described act was only a redemption of a tax sale, and Houston L. Wood was acting as agent or negotiorum gestor for the Rovi-ra heirs. The Wood heirs contend that the act of sale is simply what it purports to be and rely upon it as conveying title to Houston L. Wood. The trial court declared title to be in the Rovira heirs and the Wood heirs have appealed. The majority of this court would affirm, and I would reverse.

Because of the deaths of the parties involved in the circumstances surrounding the Act of August 1, 1917, there is no direct testimony offered in connection therewith. In order to understand the contentions of the parties, I relate the following summary of events based upon-documents offered in evidence.

Antoine Rovira acquired the subject property, lots 2, 3 & 6 of Section 14 by Act of Sale from the City of New Orleans, dated February 20,1861, pursuant to a public auction at which he, being the highest bidder, paid the price of $63.68. He also acquired other real estate consisting of a similar tract in Section 5 and several city squares, all in the Third District of New Orleans. Antoine Rovira died December 14, 1871 and a succession was opened a week later, however there is no judgment of possession contained therein. Subsequently, the property assessed in the name of Antoine Rovira, under a vague description, was adjudicated to the State of Louisiana for unpaid taxes of the year 1882. By Act dated March 5, 1901, the widow and children of Rovira gave a power of attorney to Louis E. Valloft, enabling him to redeem or reclaim the property previously sold at tax sale. There then ensued a series of lawsuits filed by the Roviras and others concerned with the property. I refer to Dockets No. 70,105 and 77,407 of the Civil District Court of the Parish of Orleans, In Re: Quaker Realty Company; In Re: Valloft, 127 La. 208, 53 So. 526 (La.S.Ct. 1910) and Docket No. 15088 of the Docket of the United States District Court for the Eastern District of Louisiana. The result of all of this litigation is to leave the title to the subject tract very much in doubt. I point with particularity to a state auditor’s deed dated October 26, 1903 in favor of a certain Alfred Thompson, based upon the tax sale for 1882 taxes under a vague inscription, but which purports to be the subject property, and to the suit of the Rovira heirs directly against Alfred Thompson, Docket No. 86,482 of the Civil District Court of the Parish of Orleans. This suit did not go to judgment, and apparently was abandoned.

As a result of the abovementioned law suits titles to the similar tract in Section 5 and to the squares of ground owned by Rovira were eventually settled, but none of them settled the validity of the 1882 tax sale and the subsequent State Auditor’s Deed to Thompson. During this period of time, the property was apparently not carried upon the tax rolls. Later for some reason not ascertainable from the record, the property was again placed upon the tax rolls in 1913 in the names of “Heirs of A. Rovira and wife.” The City taxes for the year 1913 were not paid and this resulted in a tax sale by the City of New Orleans to the Third District Land Company on July 26, 1916. Subsequently the Third District Land Company conveyed the property to Houston L. Wood by the Act of Sale before Fernandez dated August 1, 1917, which is the conveyance in question before us.

Shortly thereafter, the property was sold for the 1916 State Taxes to a certain A. J. Kolwe on June 23, 1917. The same Notary Public, Gabriel Fernandez, Jr., who passed the Act of Sale to Wood, attempted a redemption of the State Tax sale with John Rovira, one of the Rovira heirs, on August 6, 1917 and made proces-verbal relating that Kolwe refused to redeem. Accordingly, on August 29, 1917 the property was redeemed by virtue of paying the redemptive amount to the State Tax Collector.

It should be noted that from the time of the sale to Wood, there has been no alienation in Wood’s name, so that the property stands upon the public record in the name of Wood. At the same time, there has been no change in the assessment of the property, and the property has stood assessed in the name of Heirs of A. Rovira and wife from 1913 to the present date. The record does not show who paid the taxes during this period of time, however it does disclose a tax sale for the City Taxes of 1929 to the City of New Orleans and a cancellation of that tax sale for erroneous adjudication on June 22, 1960. The record also shows a redemption from the City of New Orleans to the heirs of A. Rovira for 1921 taxes dated that same date. Lastly, we call attention to a redemption from Andrew J. Kolwe to the heirs of Rovira dated August 16, 1933.

With this background, let us now proceed to consider the issue on this appeal. It is elemental that the Rovira heirs, being plaintiffs herein, bear the burden of proving a superior title to the defendants.

An examination of the questioned act of sale to Houston L. Wood discloses that it is on the usual form of cash act of sale used by notaries in the area. The only thing noteworthy about it is the consideration stated, the sum of $81.00 cash. That sum closely conforms to the amount necessary to effect a redemption of the property. The trial court found “That the actions of Mr. Wood were on behalf of all of the co-owners, and that his actions amounted to a redemption and was not in the nature of a sale.” In support of this finding, the Rovira heirs introduced evidence to show that one of the children of Antoine Rovira and wife was Josephine Rovira Witham. In turn Josephine had a daughter Regina Witham Valloft (wife of the Valloft holding the Power of Attorney referred to above) and in turn Regina had a daughter Claire Valloft. Houston L. Wood was married to Claire Valloft April 14, 1917.

It is contended in argument that the Rovira property had been looked after by Valloft because of his marriage to the daughter of Josephine Witham, and after Valloft died the burden of looking after the property was designated by Regina Witham Val-loft to her son-in-law Wood. To prove this proposition, the Roviras attempted to introduce testimony of two witnesses, but this testimony was correctly excluded from evidence by the trial judge.

Although the trial judge did not specify upon what basis he reached his conclusion that Wood acted for the Roviras, an examination of the record discloses the following evidence in support thereof which I summarize: 1.) The price of the cash act of sale is consistent with the amount necessary to redeem the property; 2.) Houston L. Wood was the husband of one of the prospective Rovira heirs; 3.) the redemption of the property by John Rovira and Gabriel Fernandez, Jr., the same notary public and attorney who passed the Wood act, at the same general time frame as the Wood act; 4.) the tax assessment has continued to remain in the name of Heirs of A. Rovira and wife since 1913 and the later tax re-demptions mentioned above; 5.) the property was included in the successions of some Rovira heirs at a later date and 6.) the proffered testimony of witnesses tending to show circumstantially a handling of the Ro-vira property by Wood.

In contradiction of this evidence I note the following: 1.) The act in favor of Wood is regular notarial act of sale and not in the form of a redemption; there is no evidence as to value of the property at the time in question, but it is noted the acquisition was for $63.68, that the property was vacant marsh land and because of the prior tax sales, auditor’s deed and lawsuits had a very litigious title; 2.) at the time of the act Wood was not an heir, nor was his wife an heir, but only a prospective heir 3.) there is no written evidence which would indicate the ultimate purpose of Fernandez, the attorney; (it is as easy to presume that Fernandez was attempting to assist Wood in acquiring title, and hence effected the redemption with John Rovira to aid Wood, as it is to assume that Fernandez was effecting a redemption on behalf of the Rovi-ra heirs and used Wood as a method of helping the Rovira heirs) 4.) the property has remained in the title name of Wood for an equally long period of time and there is no proof as to who paid the subsequent taxes; 5.) the subject property was not included in the successions of a number of the Rovira heirs; 6.) there is evidence to show that Wood had property dealings on his own, which would tend to indicate that he might desire to acquire the property for himself, and had the means to do so.

In considering the complex and conflicting evidence before us, we must first note that the document in question is on its face an authentic act of sale conveying title to Houston L. Wood.

It has been recorded for more than 22 years as provided in L.R.S. 13:3727 and more than 30 years as provided by L.R.S. 13:3729 and 3730. It qualifies as an ancient document and as such there is a prima facie presumption of its genuineness and it is deemed prima facie proof of its contents. Under these statutes, the burden of proof is upon those who assail an ancient document to overcome these presumptions. Watkins v. Zeigler, La.App., 1962, 147 So.2d 435; Roy v. Elmer, La.App., 1963, 153 So.2d 209; Houston v. Mondy, La.App., 1974, 306 So.2d 91. See also Osborn v. Johnston, La.App., 1975, 308 So.2d 464.

In attempting to overcome the recorded act of sale the plaintiffs are also faced with other pertinent requirements. It is a basic premise of Louisiana Law that the terms of an authentic act may not be varied by parol evidence and are to be considered as they purport to be with only few exceptions. C.C.P. Art. 2236, Franton v. Rusca, 187 La. 578, 175 So. 66 (1937); Cernich v. Cernich, 210 La. 421, 27 So.2d 266 (1946). Facts affecting title to real estate are required to be in writing and a title may not be established by verbal testimony. C.C.P. Art. 2275, Ceromi v. Harris, 187 La. 701, 175 So. 462 (1937); Cookmeyer v. Cookmeyer, La.App., 1973, 274 So.2d 739. This rule applies in the case of agency where real estate is concerned. L.C.C. Art. 2992; White v. Batson, La.App., 1975, 317 So.2d 205; King v. Hutchinson, La.App., 1974, 303 So.2d 534 Bray v. Boyd, La.App., 1973, 286 So.2d 508. Parol evidence is inadmissible to prove that the person whose name appeared in a deed was only the agent and not the purchaser. Serio v. Chadwick, La.App., 1953, 66 So.2d 9. Lawrence v. Claiborne, 215 La. 785, 41 So.2d 680 (1949); Hackenburg v. Gartskamp, 30 La.Ann. 898 (1897).

The parol evidence rule applies not just to the oral testimony of witnesses, but it also applies to documents of an extraneous nature, and is a rule of substantive, not evidentiary law. See Wigmore on Evidence, Sec. 2400. There are no allegations of fraud involved in this case. We are faced with the question of overturning an authentic Act of Sale on the public records for more than 50 years on the basis of circumstantial documentary evidence, and the conclusions that may be drawn therefrom. As set out above, a comparison of the evidence indicates that the evidence is not in such status that the judge can say that the fact of agency is more likely to exist than the opposite fact. In this case, one conclusion is as likely as the other, and the court cannot overturn an authentic act upon such circumstantial evidence.

Nevertheless, the Rovira heirs urge to us that cases involving tax sales and redemptions differ from the usual laws relating to title to property, and in this regard they refer to the following cases: Alexander v. Light, 112 La. 925, 36 So. 806 (1904); Gulf Oil Corp. v. Olivier, 412 F.2d 938 (5th Cir. 1969); In Re Berry, 148 So.2d 313, La.App., 1962; Bossier v. Herwig, 112 La. 539, 36 So. 557 (1904); State ex rel. Busha’s Heirs v. Register of Conveyances, 113 La. 93, 36 So. 900 (1904); Newman v. McClure, 62 So.2d 126, La.App., 1952; White v. White, La.App., 1970, 233 So.2d 289. On the basis of these cases they contend that Houston L. Wood was a negostiorum gestor, that he possessed an identifiable interest as the husband of a co-heir of the property, and that his act, whether it be called a redemption or an act of sale, was for the benefit of all of the Rovira heirs. I have examined the cases referred to and find none of them to be factually consistent with this case. I quite agree that our courts have stated that the laws regulating tax sales and redemption of property sold at tax sales are sui generis and constitute a system to which the provisions of our Civil Code have little or no application (See In Re: Berry, supra) but at the same time, the law must have some consistency to it and some basis of legislative purpose and intent. I note that in each of the cited cases there was a definite showing of the interest of the redeeming party, and in some cases there was simply outright fraud. In our case the evidence simply does not support a finding that Wood was a party at interest, or that his relationship to a co-heir, at that time Josephine Rovira Witham, his grandmother-in-law, was so close as to consider his actions standing alone as being done on behalf of those heirs.

For the reasons above assigned, I would reverse the judgment of the trial court and render judgment in favor of the appellants, the heirs of Houston L. Wood, and against the plaintiffs-appellees, the heirs of Antoine Rovira and wife, declaring the heirs of Houston L. Wood to be the true and lawful owners of the property.

Therefore, I respectfully dissent. 
      
      . In 1882 property assessed to Rovira was adjudicated to the state for non-payment of taxes. However, the only description was “a certain portion of ground in the Third District of the City of New Orleans designated as Prairie Land in front of Gentilly Blvd.” The state in 1903 sold by the same description to Alfred Thompson, who judicially admitted (in New Orleans Lake Shore L. Co. v. Thompson, No. 15088, U.S. District Court, E.D.La., a suit over Sec. 5 in which the tax adjudication was declared a nullity) that he added lot and section numbers and acreages to the description. We hold the description inadequate to transfer title: except that it tells of land in the third district, it does not describe any particular land at all. Thompson was thus not the owner of the land at the time of its sale for city taxes in 1916. That the Rovira heirs may have earlier than 1916 abandoned their suit filed against Thompson to decree the null sale a nullity does not make the null sale valid.
     
      
      . The spurious Constitution of 1913 (see State v. American Sugar Rfg. Co., 1915, 137 La. 407, 68 So. 742), art. 233, made no attempt at changing this wording.
     
      
      . Included among them was Mrs. Josephine Rovira, widow of Charles Witham. Josephine was the mother of Regina Witham, wife of Louis E. Valloft, and grandmother of Claire Valloft, wife of Houston L. Wood.
     
      
      . The heirs in 1901 had given a power of attorney to Louis E. Valloft to recover lands for them, but Valloft died April 11, 1914. No similar power of attorney to John E. Rovira (or to Wood) appears in the record. Valloft was married to Regina Witham, daughter of Josephine Rovira, as noted above, and their daughter Claire was the wife of Wood. Claire was 17 years old when her father died in 1914, his succession petition avers; thus she was about 20 when the Third District to Wood transfer occurred, and she was the oldest of the Valloft children.
     
      
      . Kolwe later did execute a “redemption”, not in the form of a cash sale but in a typed form reciting he did “redeem, transfer, sell, convey, assign and quit claim unto the heirs of A. J. Rovira . . . any and all rights, title and interest which ... he may have had or now has by reason of said tax sale . . . .”
     
      
      . See also Gulf Oil Corp. v. Olivier, 5 Cir. 1969, 412 F.2d 938, citing Louisiana authorities in concluding that a redemption by a husband benefitted his wife, who was the tax debtor.
     