LAND TRUST OF INDIANAPOLIS et al. v. HOFFMAN, 57 F. 333

PARDEE, Circuit Judge, (after stating the facts.) The case made by the pleadings is one where a party in possession seeks to remove a cloud from the title to real estate, and .to cancel deeds, records, etc. The suit, therefore, is essentially an equity suit, (Pom. Eq. Jur. § 1398; Story, Eq. Jur. § 692,) and, under the law and practice of the Hnited States courts, should have been prosecuted on the equity side of the court. The decree rendered in the court below, brought up for review, is to all intents an equity decree.

We might well, therefore, decline to review this case under the writ of error sued out, and leave the parties to the results of the arbitration by the judge and jury, to which they agreed. Surgett v. Lapice, 8 How. 48; McCollum v. Eager, 2 How. 61; Hayes v. Fischer, 102 U. S. 121; Walker v. Dreville, 14 Wall. 441; Kelsey v. Forsyth, 21 How. 85; Marin v. Lalley, 17 Wall. 14. Taking the case, however, as the parties by stipulation have tried to make it, and considering it as properly brought to this court for review by writ of error, we will examine the errors assigned.

The stipulation of parties is to the effect that this suit is to be considered and tried as an action at law in the courts of Louisiana for slander of title, in which the defendants, in their reconventional demand, assert title and ownership to the land in' controversy. Under this - stipulation the pleadings, as made by the parties, properly consist of plaintiffs’ petition and the defendant’s answer in reconvention.

The replication filed by defendant in error, plaintiff in the court below, when proceeding on the supposition that the cause was an equitable one, is necessarily to be disregarded, under the agreement made in the case, or, at most, considered as a general denial to the demand in reconvention. “Replications are not permitted by our law, and so all allegations in answer are open to every objection of law and fact, as nonage, coverture, fraud, and the like, as if specially pleaded. If defendant be surprised, the proper remedy is continuance or a new trial.’’ 2 fien.

Dig. ‘"‘'Pleading V.” p. 1155, and cases there cited. In a suit for slander of title, in which the defendant admits the slander, and sets up title in himself, the suit thereby becomes a petitory action, in which the burden of proof iq thrown upon him to establish his title. Livingston v. Heerman, 9 Mart. (La.) 714; Walden v. Peters, 2 Rob. (La.) 331; Proctor v. Richardson, 11 La. 186. In the leading case of Livingston v. Heerman, supra, Mr.

Justice Porter, for the court, said: “Now, when a suit is commenced like the present, defendant should do one of two things, — either deny that he said so, which would amount to a waiver of title, or admit the accusation, and aver Ills readiness to bring suit. In the first alternative the courts would proceed to try the fact whether he liad defamed the title or not, and give damages accordingly; In the second, they would order suit to he commenced. This, it appears to me, is ihe regular course.

The object of tliis law was intended to protect possession; to give it the same advantages when disturbed by slander as by actual intrusion; to force the defamer to bring suit, and throw the burden on him of proving what he asserted. If this course had been pursued here, the defendant Heerman directed to bring suit, in the language of the law, to prove what he said, and tlie plaintiff yelying on it, possession would have been maintained in it nniil a better right was shown.

Instead df doing this, he has chosen to maintain the truth of what he lias advanced by stating thereafter the title in his answer, and averring it to be a better one than the plaintiff’s. Having done so. I think the court can examine it as well in ihat answer as if set forth in the petition. It is only, in fact, anticipating the order which the court must have given, and coming forward at once with that title which the court would have directed him to produce in another suit His adopting this course at his own choice cannot change the mode in which the proof must he adduced.

He must make out his title alleged, and cannot take from the plaintiff the advantage which he derives from his possession by varying the form by which lie thought proper to make good his claim 1o the premises.” In the case of Telle v. Fish, 34 La. Ann. 1244, the plaintiff brought a petitory action against the defendants, who called their vendor-in warranty. That vendor set up a tax title. Plaintiff thereupon filed it supplemental pet if ion, in which he urged that the tax title was fraudulent, unreal, null, and void.

Defendants and warrantormoved to strike out this supplemental petition, and, during the progress of the trial, objected to the introduction of any evidence under the allegations of the petition, on the ground that it was in the form of an answer, or rejoinder to an answer, which is not allowed under Louisiana laws, and objected to all evidence in support of the alleged simulation and fraudulent character of the tax sale.

In passing on this objection the court said: “Construing the allegations in the supplemental petition touching the nullity of the tax sales as a mere means of defense urged by plaintiff, and as of no greater importance iban objections advanced orally, we find no error in the ruling of the judge in refusing to strike out the supplemental petition. His ruling on that point, and on all the other objections of defendants and warrantor, hereinabove enumerated, is fully sustained by the decisions in the cases of Hickman v. Dawson, 33 La. Ann. 438; McMaster v. Stewart, 11 La. Ann. 546; Maillot v.

Wesley, Id. 467, — in which the right of the plain-riff in a petitory action to meet the title opposed to him, even at tax sale, by all means of attack, as though specially pleaded, has been recognized as a correct rule of practice.” In Maillot v. Wesley, supra, 'wkicli was an action of revendication, the court said: “As our law does not permit either a replication or a rejoinder, all matters of defense set up in the answer must therefore he considered as open to every objection, and not as if such objections had been specially pleaded.

Thus the plaintiff may resort to the exceptions of nonage, coverture, fraud, violence, and the like, without pleading them, because he is not permitted to reply.” In Hickman v. Dawson, supra, which was a petitory action, in which the plaintiff alleged title and the defendant set up a tax title, the court said: “In such a case all matters of defense set up in the answer must be considered as open to every objection of law and fact, as if such objection had been specially pleaded.

The title which defendant sets up in such an action is presumed to be traversed or resisted in all its vital elements, and is thus open to every attack which might be leveled at it in a direct action in nullity.” The first and third assignments of error in this case, based upon the first and third bills of exception, present substantially the same question, and that is whether the plaintiff in the trial court, under the stipulation of the parties, and in accordance with the practice in Louisiana, (the defendant in reconvention,) was authorized to present and have considered by the jury evidence tending to show that the tax for the year 1878, the nonpayment of which was the basis of the tax title pleaded in reconvention, had been paid prior to the sale for taxes.

It was urged in objection that such testimony and evidence was irrelevant, and not responsive to pleadings, and that, being a plea of payment, under the Louisiana Code of Practice, it must be specially pleaded; but the trial judge overruled the objections, on the ground that the defendants in the original suit, by setting up title in themselves, became plaintiffs in a petitory action, and therefore plaintiff (defendant in reconvention) had the right to prove any fact tending to destroy or impeach defendants’ title as though specially pleaded, and to show that the tax for 1878, for which the property was sold by the tax collector, had been paid prior to said sale.

The evidence objected to was certainly relevant, as tending to show the absolute nullity of the tax title forming the basis of the reconventional demand, and, under the authorities above given, we are of the opinion that such nullity was not required to be specially pleaded . in order to render the evidence admissible.

The case is not at all like a suit on a money demand, where payment can only be proved under a special plea, as is well settled in Louisiana practice. ■ There remains to consider the second assignment of error, which is that the coiirt erred in refusing to charge the jury that plaintiff’s action was prescribed by the lapse of three years, under

section 5, Act 105, Laws La., approved March 28, 1874, which requires that “any action to invalidate the title to any property purchased at tax sale under and by virtue of any law of this state shall be prescribed by the lapse of three yéars from the date of such sale.” The court refused to give the charge requested, holding that the defendant, the former plaintiff, being in possession, and her possession never having been interrupted, the plaintiffs in reconvention must recover upon the strength of that title, and that the provision with reference to prescription did not apply to such case.

It is a general rule that the statute of limitations does not run against tin; party in possession. The particular statute in question was held subject to this rule by the supreme court of Louisiana in the case of Breaux v. Negrotto, 43 La. Ann. 427, 9 South. Rep. 502; McWilliams v. Michel, 43 La. Ann. 984, 10 South. Rep. 11. See, also, Lague v. Boagni, 32 La. Ann. 912; Barrow v. Wilson, 39 La. Ann. 403, 2 South. Rep. 809; McDougall v. Monlezun, 39 La. Ann. 1005-1010, 3 South. Rep. 273. The case of Smith v. City of New Orleans, 43 La. Ann. 734, 9 South.

Rep. 773, seems to hold directly the contrary, and that the special prescription in question begins to run from the day of sale. This case, however, cannot be regarded as authority, because a rehearing was granted therein on the ground of conflict with Breaux v. Negrotto, supra, and, pending reargument, the case was compromised and taken out of court. If the case of Smith v. City of New Orleans should be considered as authority, and as overruling Breaux v.

Negrotto, we do not see how it will help the plaintiffs in error, because the date of sale 'in that case, and we think properly, is fixed by the court at the date of the tax collector’s deed, and the record of this present case shows that the tax collector’s deed to Negrotto was executed on the 15th day of December, 1888, less than three years before the institution of the suit attacking such title.

We note the authorities cited by plaintiffs in error to the effect that in all public sales in Louisiana, whether made by auctioneers, sheriffs, or tax collectors, the adjudication is regarded and treated as the completion of the sale. Rev. Civil Code, arts. 2(101, 2017; Baham v. Bach, 13 La. 287; Freret v. Meux, 9 Rob. (La.) 414; Macarty v. Gasquet, 11 Rob. (La.) 270. But we are of the opinion that the principle invoked applies only to actual parties to the sale, and that third persons cannot be affected until after the act of sale is passed, and ought, not to he affected until the sale is recorded. See Rev.

Civil Code, arts. 2010, 2442. If is difficult to see how an action can be brought (o invalidate the tax title before it is made. Of course the party can proceed by injunction to prevent the tax title from being made, but a suit for nullity, or to invalidate the lax title, would he premature before making the same. Besides (Ills, we notice that in Lague v. Boagni, supra, the supreme court of Louisiana held that the prescription in' question did not apply in case of absolute nullity in the tax title. On the whole case, we find no reversible error. The judgment of the circuit court is affirmed, with costs.