Bossier v. Maskell

10 La. Ann. 671

• Court: Supreme Court of Louisiana
• Decided: September 15, 1855
• Status: Published

Opinion

Voorhies, J.

The plaintiff claims by inheritance the ownership of a tract of land described in her petition. She alleges that the defendant, who has never been in possession of said land, has slandered her title to the same. It is, in effect, an action of jactitation of title. The defendant has attempted to deduce his title from Némésis Bossier, the plaintiff’s ancestor. He alleges, in his answer, that he purchased the land in controversy from Alexander Brelte, by notarial act, dated the 7th of March, 1848, whereby he was subrogated to all the rights of action and of warranty to which Brelte was entitled by virtue of a sheriff’s sale to him on the 3d of July, 1847, at the suit of J. E. Lacy v. J. Y. Sanders; that, in case of eviction, he has his recourse in warranty against the arties to that suit, whom he prays may be accordingly cited.

Lacy, in his answer to the call in warranty, averred that he transferred to Bretle certain claims, one of which was that against Sanders, with the express understanding that the latter should take the same without any recourse against him, etc.

The other warrantor, Sanders, pleaded the general issue, and averred that the defendant was the owner and possessor of the land in controversy by virtue of good and sufficient titles translative of property; and that the defendant and those under whom he claims, have been in possession for more than ten years, a period sufficient to acquire title by prescription.

The defendant, in an amended answer, pleaded the prescription of five years, under the Act of the 10th of March, 1834, as a bar to the plaintiff’s right to attack the sale of the Sheriff at the suit of Lacy v. Sanders; and also averred that the plaintiff’s right to attack the Sheriff’s sale for taxes due by Némésis Bossier in the years 1823 and 1824 was also barred by the prescription of five years, under that statute.

The defendant is appellant frcm a judgment rendered against him on these issues in favor of the plaintiff. In this court, he has waived the peremptory exception which he had interposed in the court below, and asks that the controversy may be determined upon its merits.

The record shows that the only evidence of the divestiture of Némésis Bossier’s title are the following receipt and extract from the tax roll of 1819, viz:

“ Received of J. Y. Sanders the sum -of seven dollars and fifty cents, the amount of tax due on a tract of land assessed to Nemesl Bossier, and this day sold to satisfy the State and parish tax for 1822.

“ This 2Sth August, 1823. J. B. Murphy,

“ Collector of the Parish of St. Mary.”

extract:

“ Year 1819, No. —. Némésis Bossier, 30 arpents, third quality, valued $1500.”

Némésis Bossier was, it appears, a non-resident. Nothing shows that the land in controversy was sold under the authority of the Treasurer, in accordance with the requirements of the Act of'the 20th of March, 1818. (Session Acts of 1818; p. 90.) We consider this evidence clearly insufficient to constitute a title trans-lative of property, and such as can form the basis of the prescription of ten years. In the receipt and extract from the tax roll no description is given of the land alleged to have been sold. This we consider as a fatal defect, which cannot be cured by the prescription invoked under the Act of 1834. Wilson v-Marshall, 10 An.

As to the prescription of thirty years, pleaded by defendant, we think the evidence is clearly insufficient to sustain it.

It is therefore ordered and decreed that the judgment of the District Court be affirmed, with costs.