Lothman Cypress Co. v. Dusenbury

2 Pelt. 502
CourtLouisiana Court of Appeal
DecidedJune 19, 1919
DocketNo. 7578
StatusPublished

This text of 2 Pelt. 502 (Lothman Cypress Co. v. Dusenbury) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lothman Cypress Co. v. Dusenbury, 2 Pelt. 502 (La. Ct. App. 1919).

Opinion

CHARLES P. CLAIBORNE, JUDGE.

This is an action of jactitation.

~ By act dated January 12th, 1907, 1. W. Warrick sold to the L. W. Warrick Lumber Company:

A certain tract of land situated in the Parish of bt. Charles, known as the x-iorth half of section 32 in Township 11 Hast of the Mississippi River of Range 8 Sast containing 206.80 acres.

The assessment for the year 1908 for the purpose of taxation was made in the manner following:

L. W. Warrick Lumber Co:
A tract known as fractional 1/2 of sec. 32 in T. 11, Hast Bank of the Mississippi River - Range 8 E, containing 206.80 acres.
Value of Lands.$ 1500
" Horses. 1«0
” " ii/agons. 50
” " Stock in trade. 100
" " All other property . . ♦ 10.000
Total $ 11,830

By act dated April 26th, 1911, the L. W. Warrick Lumber Company sold the same tract of land to the plaintiff herein, the Lothman Cypress Company, for the price of $500.

At the time of this last sale the parties believed that all the taxes upon this land had been paid, and that they held the tax receipts. They were correct as to all the years except as to 1909. Concerning this year, this is what had happened.

On March 13th, 1908, the following document had been recorded in the Parish of St. Charles:

[504]*504"Know all men by these presents: That, I, Alfred Jackson, of Hew Orleans, do hereby sell, transfer, convey, 3et over, and assign unto Joseph Becker also of Hew Orleans with all legal warranties and with full substitution and subrogation in and to all my rights and actions m warranty which j. may have against all former owners and vendors the following described property, to-wit:
All of Section 34
All of Section 33
S. S. 1/4 of Section 32
S 1/2 of N. E. 1/4 of Section 32
N. S. 1/4 of H. S. 1/4 of Section 32
S. 1/2 of S. W. 1/4 Section 32
N. E. 1/4 of S. B. 1/4 Section 32, and
lots 1. 2, 3 and 4 in uection 32 and
not 6 in section 31
All in Township 11 S. of Hange 8 E, S. 3. D. of La &c."

• This description included and embraced not only the fcorth half of Section 32 sold by Warrick to the Warrick Lumber Co. as above stated, but it also embraced lands owned by, and assessed to, W. L. Burton.

In the year 1909 an assessment wa3 made in the name of Joseph seeker corresponding in description to the lands mentioned in the pretended sale by Jackson to Becker. There was no assessment made on the name of Warrick for the Uorth half of Section 32; but instead the following assessment had been carried on the rolls for that year 1909:

"L. W. Warrick Lumber Co.
1 saw-mill plant, 1 million feet of lumber in yards,
3 mules, 1 buggy, 2 wagons
Kules.$ 165.00
Wagons. 45.00
Other property. 14,500.00
Total $14,710.00

The Warrick Lumber Co. paid the tax of 1909 upon the above assessment, believing that they were paying upon all their [505]*505property including their lands as usual and not noticing the absence of any assessment of their "lands". Indeed, while the tax receipts for the years 1907, 1908, 1910 up to 1918,contain on the top left hand corner almost a copy of the different objects assessed such as lands, horses, vehicles and other property, and the valuation set upon each, it is strange that nothing of the kind appears on the tax receipt for the year 1909 - signed by the Deputy Tax Collector.

But the tax for the year 1909 as assessed against Joseph Becker for the Sections 32, 33, and 34 and others owned by War-rick and Burton was not paid. They were advertised for sale by the Sheriff; and on June 14th, 1910 they were adjudicated to the defendant.

On April 10th, 1912, W. L. Burton filed in the Parish of St. Charles suit Hp. 399 against Joseph Becker and A. T. Du-senbury ^In his petition he alleged that he was the owner of a portion of Section 32 purchased by Dusenbury in the above tax sale; "that Alfred Jackson had no title to the lands which he purported to sell, and had no deeds under private signature or otherwise transferring said lands to him, and that the sale from Jackson to Becker was a conspiracy to defraud him of his property, and an attempt by unlawful, fraudulent^ and corrupt means to acquire title to valuable real estate rightfully belonging to him; tiat the Sheriff of the Parish' of St. Charles illegally sold the lands described as contained in Section 32 and others; that the assessment^ upon which the said tax sale was made to Dusenbufy was illegal, null,and void, and that petitioner was entitled to have the sale based on said assessment annulled and the inscription thereof erased from the records of the Parish; that Dusen-bury was well aware of petitioner's ownership of said lands and of the error made by the assessor in describing them; that -for the last twenty years he had paid all taxes on said lands; he prayed for citation on Joseph Becker and A. T. Dusenbury, and for judgment declaring the assessments in the nans of Joseph Becker for the years 1908 and 1909 null and void and the tax sales made thereunder on June 14th, 1910 to A. T. Dusenbury to be null and void, and ordering the oanoellation of the sales above mentioned [506]*506from the records of the Parish of St. Charles. Becker was cited at his domicile No. 2720 Marengo Street in the City of New Orleans. He filed no answer, and as to him there was a judgment by default. Dusenbury filed a general denial. There was judgment on July 5th, 1912 annulling the tax sales of the properties of W. L. Burton made June 14th, 1910, annulling the inscriptions thereof, and recognizing Burton as the owner of the lands claimed by him. No appeal was taken from said judgment.

Notwithstanding this judgment, Dusenbury continued to assert title under his tax sale to that portion of Section 32 owned by the plaintiff. Thereupon the plaintiff filed this suit in March 1914. It alleged that it had purchased the property from the Y/arrick Lumber Company on April 26th, 1911 - duly registered, and gave the chain of its title tracing it back by mesus conveyances to the United States in 1849; it alleged that neither Joseph Becker nor his author, nor Dusenbury had any title to said property;it recited all the facts hereinabove stated and prayed for judgment ordering the cancellation of the tax title of Dusenbury with $300 damages, as attorney's fees.

Dusenbury denied plaintiff's ownership, ard admitted that he claimed to be the owner of the property by virtue of his tax title which vra.s neither fraudulent^or null and void; he denied that plaintiff had ever at any time acquired any title to the property or that its title was registered, and he averred that by deed executed by Hon. A.

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Cite This Page — Counsel Stack

Bluebook (online)
2 Pelt. 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lothman-cypress-co-v-dusenbury-lactapp-1919.