
    No. 2176.
    Second Circuit Appeal.
    LEE M. McBROOM v. FROST-JOHNSON LUMBER COMPANY, ET AL.
    (June 6, 1925, Opinion and Decree.)
    
      (Syllabus by the Editor.)
    1. Louisiana Digest — Taxation—Par. 333.
    A tax sale for taxes sold in the name of a person who did not own it is an absolute- nullity.
    2. Louisiana Digest — Prescription—Par. 12, 20; Taxation — Par. 336, 341/ 377.
    Having remained in actual open, peaceable possession as owner under title translative of property for more than ten years, he is entitled to hold same' as owner free from a null and void tax title.
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Union, Hon. S. L. Digby, Judge.
    This is a suit to have an invalid tax title removed.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Elder & Everett, of Farmerville, attorneys for plaintiff, appellee.
    Fields & Blackshear, of Farmerville, attorneys for defendants, appellants.
   REYNOLDS, J.

This is a suit by Lee M. McBroom against Frost-Johnson Lumber Company and Security Trust Company to quiet plaintiff in his possession of NE¼ of NW¼ of Section 9 Township 23 North Range 1 West, in Union Parish, Louisiana, and to have the cloud on his title caused by the recordation of a tax deed to Summit Lumber Company and its assigns of tbe above described land for unpaid taxes assessed to S. L. Tubb for the year 1904 removed.

Defendants, in answer, claimed title by reason of said tax deed and alleged that said tax deed was perfect and gave tbe tax purchaser, Summit Lumber Company, a valid title, and further alleged that plaintiff is estopped from attacking said tax deed for tbe reason that tbe same is more than three years .old.

On these issues tbe case went to trial.

There was judgment for plaintiff, and defendants appealed.

OPINION.

Tbe evidence established- that J. H. McBroom acquired tbe property in dispute by Notarial Act, duly recorded on November 23, 1903. Under tbe law tbe property was or should have been assessed to him for tbe year 1904, as be -was tbe record owner of it, and tbe assessment of tbe property to S. L. Tubb for tbe year 1904 was null and void.

J. H. McBroom • was assessed in Union parish for tbe year 1904 with 320 acres of land and bis tax receipt showing payment of taxes for that year was introduced in evidence.

Tbe property in dispute was sold in 1905 for taxes of 1904 under ■ assessment to S. L. Tubbs, at which time not S. L. Tubbs but J. H.' McBroom was tbe record owner.

It is therefore apparent that tbe tax sale to Summit Lumber Company was for taxes not properly assessed and that therefore tbe tax deed was an absolute nullity.

Slattery vs. Heilperin, 110 La. 86, 34 South. 139.

Cain vs. Herndon, 107 La. 599, 32 South. 33.

Hunt vs. Abel, 154 La. 962, 98 South. 434.

Font vs. Gulf States Land Co., 47 La. Ann. 272, 16 South. 828.

Woodfolk vs. Fonbene, 15 La. Ann. 15.

In re Baton Rouge Oil Works, 34 La. Ann. 255.

Breaux vs. Negrotto, 43 La. Ann. 427, 9 South. 502.

Charbonnet vs. State Realty Co., 155 La. 1044, 99 South. 865.

J. H. McBroom and those bolding under him remained in open, peaceable, actual, notorious possession as owners of said land after tbe tax sale; rightfully, under the impression that all taxes on same bad been paid, for J. H. McBroom held bis tax receipt for bis taxes for tbe year 1904; and the tax purchaser, Summit Lumber Company, made no effort to take possession of tbe property or any part of it.

Hence defendant’s claim of title under their purchase from Summit Lumber Company must fail.

Tbe Supreme Court, in Bartley vs. Sallier, 118 La. 93, 42 South. 657, says: “One fails in bis claim as tax owner where be has never bad possession sufficient to sustain bis title and to bring it within tbe prescriptive period of Article 233 of tbe Constitution.” (Now Article X, Section 13, Constitution of 1921.)

Plaintiff and bis authors in title having remained in actual open, peaceable possession as owners under title translative of property for more than ten years, be is entitled to hold tbe same as owner free from a null and void tax title and to have said tax title and all titles emanating from the same cancelled from the record as a cloud on bis title.

Gomez vs. Wilde, 10 Orl. App. 213.

Defendants insist that plaintiff is es-topped from setting up tbe nullity of tbe Summit Lumber Company’s tax title because it is more than three years old; but this contention amounts to nothing more than a plea of three years’ prescription in support of defendants’ title and that plaintiff cannot prevail even if, under the evidence, plaintiff and his authors in title remained continuously in actual, open, notorious possession of the land as owners, before the tax safe, at the time of the tax sale and since the tax sale.

When a tax sale is made against a person assessed who had no title to the land, the sale is null.

Delaroderie vs. Hillen, 28 La. Ann. 537.

Desorreaux vs. Moylan, 26 La. Ann. 730.

The prescription of three years under Act 105 of 1874, paragraph 5, like the prescription of five years provided in Civil Code ■ article 3543 cannot defeat an action of nullity founded upon a radical defect in a tax sale such as that the property was sold under an assessment made in the name of a person who did not own it.

Gilmore vs. Frost-Johnson Lumber Co., 139 La. 354, 71 South. 536.

Plaintiff insists that defendants are es-topped from disputing his ownership of the property because of the fact that since the date of the tax sale relied on by defendants, defendants or their authors in title purchased from plaintiff a right of way across the forty acres in dispute. Under our view of the case we have not found it necessary, to pass upon plaintiff’s plea of estoppel.

For the reasons assigned, the judgment of the lower court is affirmed.  