Carey v. Cagney

Citations

• 109 La. 77
• 33 So. 89
• 1902 La. LEXIS 111

Syllabus

<p>TAX DEEDS — ACTION TO ANNUL — LIMITATIONS —POSSESSION—NECESSITY—CONSTRUCTIVE POSSESSION — OUSTER.</p> <p>1. Act No. 80 of 188S makes provision for the sale of property which had been adjudicated to the state for taxes of 1880 and subsequent years. In sections 2 and 3 of this act it is set forth that no bids for such property shall be accepted, or sale made, for a less sum than the total amount for which the property was adjudicated to the state, together with 20 per centum and all costs of selling the property. This a prohibitory law and a bid accepted and a sale made in violation of its mandate, renders void the title predicated thereon.</p> <p>2. There must be a possession, either actual or constructive, on part of the holder of a tax title to render effective in his behalf the statute of repose embodied in article 233 of the constitution of 1898.</p> <p>3. Where the original owner remains in the actual, corporeal possession of the property, such possession is in continuous conflict with the claim arising under the tax title, and a continuous protest against the same, and it cannot bo held, under such circumstances, that any prescription operating as a statute of repose runs in favor of the holder of the tax title.</p> <p>4. Where the original owner was in actual possession at the time of the tax sale and so remains in possession, the initiative is not upon him. He stands on his possession against the world; it is a badge of ownership; and no prescription can be held applicable that would operate to deprive him of the right to defend that possession and the title upon which it is predicated.</p> <p>5.AVhile constructive possession springing from a later title deed ousts constructive possession which had been held under an earlier deed, constructive possession can in no case have the effect of ousting actual possession held under an adverse title giving the color of right. One is a fiction of law; the other a tangible fact. The fiction is inoperative as against