Biggs v. Furnish

1 La. App. 664, 1925 La. App. LEXIS 121

• Court: Louisiana Court of Appeal
• Decided: February 20, 1925
• Docket: No. 1985
• Status: Published

Opinion

CARVER, J,

On June 17, 1911, W. H. Scanland and J. Er Biggs bought from the Tax Collector of Bossier parish for the taxes of 1910 assessed to Felix Dixon an undivided one-third interest in east half of west half and west half of northeast quarter of Section 27, Township 19 North, Range 11 West, receiving therefor the usual deed, which was recorded on June 22, 1911.

At that time the whole of the tract belonged to one J. W. Catlett.

In 1921 plaintiff, the heirs of said Scan-land and Biggs, had a partition with Mary E. Catlett (alleged in the petition to be the widow of J. W. Catlett and his sole legatee respecting the land involved herein), plaintiffs’ taking part of the land and Mrs. Catlett the rest.

The suit is brought against the children and sole legal heirs of J. W. Catlett for $300.00 damages on the allegation that defendants are claiming the property received by plaintiff in said partiton and slandering plaintiffs’ title thereto.

Defendants, in their answer, attack the partition on grounds not necessary to mention and also attack the tax sale on the ground that the assessment was in the name of Dixon although the property belonged to Catlett to the knowledge of the tax purchaser whose acquisition of the same, they allege, was- an attempt to defraud their ancestor. They also ask for damages.

Plaintiffs filed a plea of prescription of three years, and also a plea of estoppel.

The district judge rendered judgment in favor of the plaintiffs, sustaining the plea of prescription but in favor of defendants annulling the partition and decreed the property to belong in division one-third to plaintiffs and two-thirds to defendants.

Defendants appeal, but the plaintiffs do not nor do they ask any amendment of the judgment.

Defendants do not allege that they are or have been since the date of the tax sale in possession of the property, and by praying to be sent into possession they inferentially concede that they are not.

The answer attacking the tax sale was filed in 1922 — more than eleven years after the registry of that sale. The district judge decided correctly, we think, in sustaining the plea of prescription established by Article 233 of the Constitution of 1898, which article was continued in the Constitution of 1921 with a change still more favorable to tax sales.

See Terry vs. Heisen, 115 La. 1070, 40 South. 461, and cases therein cited.

Also Winn Parish Bank vs. White Sulphur Lumber Co., 133 La. 282, 62 South. 907.

The judgment of the lower court is affirmed.