Fluker v. De Grange

41 So. 591, 117 La. 331, 1906 La. LEXIS 698

Opinions

PROVOSTY, J.

This is a suit to compel a purchaser to accept a title which he has refused to accept because of its not being, in his opinion, good.

The property formerly belonged to one J. * Peter Hubert. It was sold at tax sale to the state in 18S4 for the taxes of 1882i Notwithstanding this sale to the state, it was offered at tax sale in 1885, under Act No. 82, p. 104, of 1884, for the taxes of 1872 to 1878, inclusive, and was adjudicated to Joseph Holz. In 1893 the state sold it to W. W. Wall; and the latter at once took actual possession of it, by building around it a substantial wire fence; and he and his vendee, the plaintiff, have been in possession ever since. In 1895 the heirs of J. Peter Hubert filed suit, simultaneously, against Holz and Wall, to annul the tax sale and recover the property. In March, 1898, a judgment was rendered dismissing the suit against Wall. The suit against Holz is still pending. Plaintiff is the vendee of Wall. All the sales above mentioned were duly recorded.

In disposing of the case we shall limit ourselves to two questions: First, whether the heirs of J. Peter Hubert are concluded in their rights by the judgment dismissing their suit against W. W. Wall; second, whether the tax title of Joseph Holz is a serious menace to the title of plaintiff.

Defendant’s reasons for doubting that the heirs of J. Peter Hubert are concluded by the dismissal of their suit against Wall, are: First, that the judgment was rendered by the judge of division D, when the suit had been transferred to division E, and had not been retransferred to division D, except by an order of the judge of division D; second, that the original answer of Wall was simply a general denial, without any reconventional demand for the recognition of his title and his supplepaental answer, praying for a recognition of his title, was never notified to the plaintiffs in the suit.

Obviously, it would be too late after judgment for the plaintiffs in that suit to be raisihg these questions. Moreover, we know of no law requiring the answer in a suit to be notified to the plaintiff otherwise than by its mere filing, and we are not advised of the existence of any rule of court so requiring. And, again, we do not see why the dismissal of the suit on a general denial should not operate as res judicata of the issues of the suit.

The second objection, to the effect that the tax sale to Holz is a menace to plaintiff’s title, is not better founded. The tax collect- or’s deed to Holz recites that the purchaser promised and assumed to pay the taxes due on the property for 1880 and subsequent years; and it is not shown that, previous to the sale by the state to Wall — or since, for the matter of that — these subsequent taxes were paid. Indeed, from the fact that the auditor made the sale to Wall and received payment of these same taxes from Wall, a very strong inference arises that they have not been paid, so strong that the court can safely accept it as proof, in the absence of any effort on the part of defendant to rebut it. This, under settled jurisprudence (Martinez v. Tax Collector, 42 La. Ann. 677, 7 South. 796; Remick v. Lang, 47 La. Ann. 914, 17 South. 461), and numerous other cases, not needing to be mentioned, has the effect of making the Holtz title a mere nullity.

Judgment affirmed.