that his vendor, his lessor, or other parties, be brought into the proceedings, it is for him to take steps leading to that end. The plaintiffs in this case have not cumulated with the petitory action proper actions of nullity against the various proceedings alluded to in the pleadings, and made parties accordingly, for the reason that the theory of this case is that all these proceedings are absolute nullities, needing no judicial action to set them aside; that they are void, not voidable. The allegations of the petition are to that effect. If the plaintiffs think proper to go into this case on that basis, on the strength of the correctness of their legal conclusions on that subject, they have, at their own risk, the right to do so. Should it turn out, on inquiry, that the proceedings alluded to were not void, as claimed, but simply voidable, and the case should be before the court without the proper parties and proper prayer, plaintiffs will take nothing by their action. Defendant cannot, in limine and on exception, introduce evidence, and have the court pass upon the character of the proceedings which plaintiffs assume to be, and characterize as, absolute nullities. That will be one of the issues on the merits.

For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled, avoided, and reversed; and it is now ordered and decreed that the case be reinstated in the district court, to which it is hereby remanded for further proceedings according to law.

1. A succession sale, made under an order granted by the clerk of court upon application of a person acting as administrator, cannot be dealt with as an absolute nullity, upon the ground that the particular person had not the qualifications necessary for appointment, nor because, though letters of administration signed by the deputy clerk were in the record, there was no direct evidence of an appointment by the clerk. The action of the latter, governing the order of sale, was a recognition by her of such an appointment, and that the party had legally qualified under it.

2. Where the deed under which a party claims title to real estate, as vendee at a succession sale, does not recite that it was made under order of court, and is otherwise silent as to the observance of the formalities essential to the legality of such a sale, and where the evidence shows that the auctioneer, in selling, departed from the terms of the order authorizing a sale, such title cannot serve as the basis for the commencement of the prescription of 10 years.

3. Where the title tendered to a purchaser makes no reference to that which the vendor holds, bad faith cannot be presumed in the pur chaser from the fact that the vendor's title was of record, and fatally defective.

4. Declarations of former owners of property, in derogation of their own title and good

faith, made after they had ceased to be owners, are not admissible against the subsequent vendees of the same.

5. Plaintiff, in bringing a petitory action, is not forced to cumulate therewith a direct action of nullity, with proper parties, to set aside judicial proceedings under which his title has apparently been divested, if he alleges that such proceedings are absolute nullities. He has the right, at his risk, to tender, and go to trial on, that issue.

(Syllabus by the Court.)

Appeal from district court, parish of Catahoula; J. L. Dagg, Judge.

Action by the heirs of John Ford against F. M. Mills and Guy Phillips to try title to land, and for other relief. Defendants had judgment, and plaintiffs appeal. Reversed in part.

Frank B. Thomas and Allen B. Hundley, for appellants. Potts & Hudson, for appellee Guy Phillips. J. F. Ellis and D. N. Thompson, for appellee Mills.

NICHOLLS, C. J. John Ford died in 1863, leaving eight minor children, some personal property, and the small tract of land in the parish of Catahoula which forms the subject of this litigation. In 1865 one Dean applied to be appointed administrator, alleging that an administration was necessary in order to liquidate and settle the succession and pay debts. On the 12th December, 1865, the district clerk signed an order directing the advertisement of the application according to law, and "decreeing that if, after the expira tion of said period, no opposition be made in the mean time, he be appointed administrator, on his giving bond and security for the sum and conditioned according to law, and on his complying with the law in all other respects." On the 2d January, 1866, the deputy clerk issued letters of administration to Dean, in which, after a recital that Dean "had been appointed administrator of the succession of John Ford, and taken the oath and executed bond as prescribed by law," it is declared, "Therefore, be it known that the said A. B. C. Dean is hereby confirmed in said appointment." On the 11th January, 1866, the district clerk, upon an application of Dean, as administrator, praying for a sale of all the property of the succession to settle and liquidate the same, rendered an order of sale of all the property "at public auction, on the terms and conditions required by law." On the 26th December the following instrument, upon which the title of the defendants is based, was executed by Dean, and placed of record: "State of Louisiana, Parish of Catahoula. Know all men by these presents, that I, A. B. C. Dean, administrator for the heirs of John Ford, did offer for sale on the first day of December, 1866, according to law, the tract of land below described, to the highest and last bidder, whose name will also appear below. Therefore, the aforesaid Mr. Dean, a resident of Catahoula parish, Louisiana, does bar

gain, sell, and convey and deliver unto Solomon Jemison, a resident of the aforesaid parish and state, and Ransom B. Jemison, an equal portion of said land, the said Ransom B. Jemison being a resident of Caldwell parish,-the following tract or parcel of land, with all the improvements and appurtenances thereto belonging, on what is known as 'Sandy Creek,' Catahoula parish, Louisiana, to wit [here follows a description of the property]. The consideration of the abovenamed land given by the Jemison brothers is seven hundred and fifty-five dollars, for which they have executed their joint notes, made payable to A. B. C. Dean or order, due on the first day of December, 1867, with Josiah Jemison and C. P. Kees as security to said notes. Now, it is the true intent and meaning of both of the above contracting parties that the above-described land is to remain specially mortgaged and hypothecated, and the same is hereby mortgaged and hypothecated, for the payment of the abovedescribed notes. In testimony whereof, we have this day signed our names and affixed our seals thereunto, in the presence of W. H. Holloman and Levi Prestridge, witnesses, of lawful age and domicile. Signed, sealed, and delivered on this, the 22nd December, A. D. 1866. [Signed] A. B. C. Dean. [Seal.] Solomon Jemison. [Seal.] Ransom B. Jemison. [Seal.] Witnesses: [Signed] W. H. Holloman, Levi Prestridge." On the 22d November, 1869, Solomon and Ransom Jemison sold the property to R. L. Elliot. R. L. Elliot sold to W. H. Elliot on the 26th December, 1886. W. H. Elliot sold to William McBroom on the 18th day of October, 1888. William McBroom sold to F. M. Mills, one of the defendants, on the 27th day of May, 1890. F. M. Mills transferred a portion of this property to C. G. Woodbridge on the 9th day of February, 1891. C. G. Woodbridge sold his interest on the 29th day of June, 1891, to Guy Phillips. F. M. Mills and Guy Phillips are in possession of the property under their respective titles, and claim to be owners thereof. On the 25th July, 1892, the plaintiffs, as heirs of John Ford, instituted the present petitory action against Mills and Phillips, praying to be declared the owners and placed in possession of the tract of land referred to, and for rent of the same, at the rate of $200 per annum, from the 27th May, 1890.

Plaintiffs attack all the proceedings in the matter of the succession of Ford, and declare them to be absolute nullities. They allege that Dean was neither a creditor of the suc cession of Ford, nor a relative or connection of the family; that he had no right to be appointed administrator; that the original order touching the appointment, signed by the district clerk, was null and void, as it was a conditional order of appointment, and the subsequent order signed by the deputy clerk was also an absolute nullity, as he was without power or authority to appoint or confirm an administrator. They allege: That the order of

sale was granted within three months of the appointment of the administrator, in violation of article 1164, Rev. Civ. Code. That there was no necessity for the sale of immovable property. That no creditor applied for a sale, and Dean never filed a statement of debts. That the pretended sale to the Jemisons was absolutely null, as a judicial sale. That it was nothing more than a private sale by Dean to said parties. That, in making the same, Dean did not pretend to make it as administrator of the estate of John Ford, or auctioneer, but as administrator of the heirs of John Ford, which he never was. That it was also absolutely null, as a judicial sale, for the reason that none of the forms of the law for such a sale were complied with. That it was not advertised for sale in three public places in the parish of Catahoula. That the deed of sale does not recite that it was made in pursuance of, or in obedience to, any order of court; that it had ever been advertised to take place at the courthouse door, or at the late residence of the deceased, for 30 days preceding the sale, or for any number of days, in three public places in the parish, designating said places; that Dean had offered the same for sale to the bystanders in an audible voice, or that he proclaimed the terms of sale, whether for cash or on a credit of 12 months; nor that he adjudicated said lands and improvements to the said Jemisons, as the last and highest bidders, as administrator and auctioneer of the estate of John Ford, deceased; nor did Dean sign the deed to the Jemisons as such, but signed the same in his individual name, thereby making it a private sale, and absolutely null and void. That, in point of form and legal requirements, it could not form the basis of the prescription, or the commencement of prescription. That the deed does not show whether it was the first or second attempt at sale. That, if for the first attempt, it was null and void, as it was sold for less than the appraisement. That the Jemisons, and all the other parties holding under them, were purchasers and transferees and possessors in bad faith. That they had actual and constructive knowl edge and notice of all the illegalities and informalities connected with the sale. That the deed of sale to the Jemisons conveyed no legal title to them, and they could not legally convey title to another.

Defendants filed exceptions, only one of which has been referred to in this court. That exception, which was to the effect that the necessary parties had not been made, and that the persons holding and claiming the property as owners under the Dean deed, and since, should have all been made parties. was overruled, and defendants answered. They pleaded the general issue, averred their good faith, maintained the legality and validity of the proceedings in the matter of the succession of Ford, and of the various titles thereunder. They averred that the purchase price of the sale to the Jemisons was received

by Dean, administrator, and applied by him to the payment of valid, existing debts of the succession, and finally pleaded the prescription of five and ten years.

The district judge held the sale from Dean to the Jemisons to be so radically null as not to serve as the basis for the commencement of prescription. He was of the opinion, however, that there was no evidence before him impugning the good faith of R. L. Elliot, and those holding the property after him, and therefore took as the initial point of prescription the date of R. L. Elliot's purchase. With that date as its starting point, the court held that the prescription of 10 years had accrued, even as against the minors. It therefore sustained the plea of the prescription of 10 years, and rejected plaintiffs' demand. They appealed.

The plaintiffs having alleged the absolute nullity of the proceedings in the matter of the succession of Ford, and gone to trial on that issue, we do not think it was necessary for them to have made other parties than those before us.

See Belard v. Gebelin (decided this day) 14 South. 843; also, Succession of Bright, 38 La. Ann. 141.

We are of the opinion that plaintiffs' objections, in so far as they seek to base the nullity of the transfer of the property to the Jemi. sons upon the ground that Dean was not the administrator of the succession, for the reason that he was neither a creditor nor a relative or connection of the Ford family, and that there is not in the record any evidence of a direct order of the district clerk, himself, appointing him as such, but simply a paper from which it would appear that Dean's appointment rested upon the unauthorized act of a deputy clerk, cannot be inquired into in the collateral manner attempted. The order of sale was granted by the district clerk upon a petition addressed to the court by Dean, as administrator, and he was at least a de facto officer. We presume, besides, that there must have been some intermediate order between the original one of the district clerk and the later one of his deputy. We think the paper signed by the latter was intended to be merely the "letters of administration" which issue to an administrator after he has complied with the law.

We agree with the district judge that the claim of ownership to the property in litigation, based upon the prescription of 10 years, as founded upon the alleged sale to the Jemisons, is untenable. The deed of sale upon which this claim rests is radically defective in its recitals and form, and, dehors the deed, we are satisfied that Dean, if he was acting in the matter of the sale under the order of the court, departed from the terms of the order. He was ordered to sell according to law, and the evidence shows that there was no attempt whatever to sell the property for cash, but that it was transferred at once to the Jemisons, upon their furnishing their notes payable at 12 months. The case falls

under the operation of the principle an nounced in the case of Ambrose v. Marsh, 27 La. Ann. 241. See, also, Succession of Fritz. 12 La. Ann. 368.

We next come to defendants' claim of prescription, based upon the transfer of the property by the Jemisons to R. L. Elliot, and upon the subsequent changes of ownership. If R. L. Elliot's title and possession were of such a character as to serve as the commencement of the prescription of 10 years, the conclusions reached by the district judge on this branch of the case were correct, except as to Elijah Ford. We have therefore to inquire into the question of the prescription of 10 years from that standpoint. Plaintiffs contend that, had the court permitted J. J. McKeithen, Thomas Davis, Calvin C. Davis. and Wade Hough to testify upon the points which they sought to interrogate them upon. and had not excluded their testimony, as it did (under reservation of their bills of exception), they would have established the bad faith of the Elliots and McBroom. They contend that the excluded testimony was admissible. We think the judge's ruling correct. Plaintiffs sought to prove, as against the defendants, declarations of former owners, made to those witnesses, derogatory to their own titles and good faith, those declarations having been made subsequent to their having themselves alienated the property. Declarations made under such circumstances cannot be permitted to affect the subsequent vendees. We were inclined to doubt the propriety of the ruling as to Hough's testimony, as it does not very clearly appear from the record what the date of the statements to Hough was; but it was plaintiffs' duty to have made the recitals show the date with certainty, so as to affirmatively establish error on the part of the judge. We have to assume his rulings to be correct, until the contrary is made manifest. There was no reference, in the title tendered to R. L. Elliot, to that under which the Jemisons acquired. Bad faith cannot be presumed from the fact that the Jemison title was of record. Fletcher V. Cavelier, 4 La. 274; Morand's Heirs v. Mayor. etc., 5 La. 242; Self v. Taylor, 33 La. Ann. 769; Pattison v. Maloney, 38 La. Ann. 888.

Plaintiffs claim that, under any circumstances, minority has saved the rights of the children of William Duncan Ford and those of Elijah Ford. We think the evidence establishes that the prescription of 10 years had run, as against William Duncan Ford, before. his death. He must have been 34 years of age at that time. He became of age in 1872, and died in 1885. R. L. Elliot purchased the property, as we have seen, in 1869. Elijah Ford must have become of age in 1883. Prescription, as to him, was not completed when this suit was brought.

For the reasons herein assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, affirmed, as to all the plaintiffs, Elijah

Ford excepted. It is further ordered, adjudged, and decreed that the judgment be an nulled, avoided, and reversed as to Elijah Ford, and judgment is now rendered in his favor, and against the defendants, recognizing and declaring him to be the owner of an undivided interest in the property mentioned in the petition, to the extent of the interest inherited by him in the same. That interest not clearly appearing by the record, as to its extent, the case is remanded to the lower court to have the same ascertained, fixed, and declared; costs of appeal to be shared between the appellants, other than Elijah Ford, and the appellees, in proportion to their respective interests.

(46 La. Ann.)

HOWCOTT et al. v. BOARD OF COM'RS OF FIFTH LOUISIANA LEVEE DISTRICT. (No. 11,469.)

(Supreme Court of Louisiana. March 12, 1894.) TAXATION-ASSESSMENT-SALE-LIMITATION OF ACTIONS.

1. An assessor cannot bring together a number of distinct properties belonging to different individuals, fix a single valuation upon them as a whole, and, ascribing the ownership of them all to one of the owners, assess taxes against him to the full amount of the assessment on that false assumption.

2. The act of the tax collector in advertising and adjudicating said properties in block to the state, in enforcement of the delinquent taxes thereon so assessed, was without legal authority.

3. Property of one person cannot be sold confusedly with those of others, where there is no privity of estate between the parties. One person's property cannot be sold to pay the debt of another.

4. The transferee from the state, of property held by it under such title, is not protected by the prescription of three and five years. (Syllabus by the Court.)

Appeal from district court, parish of Madison; Field F. Montgomery, Judge.

Action by W. H. Howcott and J. E. & F. X. Ransdell against the board of commissioners of Fifth Louisiana levee district to remove a cloud from title. Plaintiffs had judgment, and defendant appeals. Affirmed.

W. M. Murphy, for appellant. Joseph E. Ransdell, for appellees.

NICHOLLS, C. J. In the years 1880, 1881, and 1882, the assessor of East Carroll parish assessed together, in the name of Samuel H. Lambdin, a large body of lands, separately described by numbers of township, range, sections, and subdivisions of sections, at a valuation in block for all the lands, the same aggregating some 1,900 or more acres. During the same years the assessor also assessed, in similar manner, a large body of lands, aggregating 2,073 acres, in the name of Charles Byrne. In April, 1883, the tax collector of East Carroll advertised these lands for sale for delinquent taxes. The advertisements followed the assessments. At the sale

made under the advertisements, both bodies of land (each sold in block) were adjudicated to the state, as the last and highest bidder. The state subsequently transferred these lands to the defendant, the Fifth Louisiana levee district. On the 16th of May, 1893, plaintiffs instituted the present suit, in which they allege themselves the owners of certain described property included in the two sales referred to, by purchase from their former owners, Samuel H. Lambdin and Charles Byrne. In their petition they refer to and attack the sales of the said properties to the state as being nullities, and a cloud upon their title. They pray for judgment annulling and setting aside any claim or title of the Fifth Louisiana levee district to the lands described in their petition, and quieting them in their own title to the same. The attack upon both sales is substantially the same, varying only as to names of parties and description of lands. They aver that no valid assessment of these lands was made; that only a small portion of the lands described in the assessments belonged to the parties in whose names they were assessed; that the greater portion belonged to other parties; that the portion belonging actually to the parties named was blended and confused with property of other persons and charged with taxes not due by it; that a portion of of the lands assessed to Lambdin was situated in West, and not in East, Carroll, and a portion of the lands described was at a distance of many miles away, and entirely separate from the other portion. They aver that there was a large discrepancy in the lands assessed in the name of Byrne, between the acreage set out in the tax rolls and the true acreage indicated by the description, and that the amount of taxes for which the property was sold, being calculated upon an erroneous acreage, was largely in excess of what was due by the 1,020 acres of Byrne's land, which were really included in the tax collector's deed; that the lands were illegally sold confusedly with property belonging to other people, and for taxes due for such other lands. They charged that notice was not giver to Lambdin and Bryne, as required by article 210 of the constitution. The defendant pleaded first, as an exception, "the prescription of three years in bar of plaintiffs' right to bring this action to invalidate a tax title under which defendant holds possession in good faith." It next answered by general denial, and pleaded the prescription of five years against all the alleged informalities charged in the petition. Judgment was rendered in the district court against the defendant, and in favor of the plaintiffs, in conformity to their prayer, and the defendant appealed.

The evidence establishes that a large part of the property assessed to Lambdin and a large part of that assessed to Byrne belonged, not to them, but to other persons; that a part of that assessed to Lambdin was in

another parish, and a portion was entirely separate from the other lands, and many miles away. The witnesses testify "that, whilst Byrne was assessed on 2,078 acres, the description of the land, per official survey, shows only 940 acres belonging to him, plus three hundred acres belonging to other parties; the whole amounting to 1,240 acres, instead of 2,078." We do not think plaintiffs have shown want of notice to Lambdin and to Byrne. The sales under the assessments having been made in block, and following the assessments, the question submitted to us is whether the former owners were divested of their title or not, and whether the defendant is protected and secured by the prescriptions set up. There can be no question as to the assessments made having been wrongly made. The assessor has no legal right to include in one assessment, and under one valuation, properties belonging to different persons; and the state, through its offi- ! cers, had no right to sell together properties of different individuals, assessed in that manner. In suits between private individuals, conducted under ordinary proceedings, where the rules of proceeding are far less rigorous than in tax proceedings, it has been, on several occasions, held that the property of one person could not be sold confusedly with that of another, where there is no privity of estate between the parties. See Mayor v. Armant, 14 La. Ann. 181, and Savage v. Williams, 15 La. Ann. 252. The property of one person cannot legally be sold to pay the debt of another, even though, through the sale, a debt of his own may be paid; and the tax collector was without power or authority to do so. We are of the opinion that the prescriptions pleaded do not apply to this case. For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment of the district court be, and the same is hereby, affirmed.

1. On appeal from justice's court to city court, defendant cannot set up the summons, complaint, and judgment in the justice's court, and plead in abatement, as the case is to be tried de novo.

2. A complaint is not demurrable which fails to show that defendants have been served with process.

3. It cannot be objected that suit was not instituted against the late firm of S. & Co., where both summons and complaint show that S. and B. were proceeded against as "late partners under the firm name of S. & Co.," and the summons was served on B.

4. In an action to enforce a mechanic's lien, the overruling of the owner's demurrer to the complaint, which sought a money judgment against him, was harmless error, where the judgment merely declared a lien on the owner's premises for the amount of the money judgment rendered against the contractor.

v.14so.no.16-54

5. Objection to the discontinuance of a suit as to a party not served with process cannot be raised first on appeal.

6. Where defendant failed to comply with the mechanics' lien law to protect his property from the enforcement of a subcontractor's lien, and told the subcontractor that he had enough to pay him from the money going to the principal contractor, and allowed the subcontractor to complete the contract, he was estopped to deny that he had money of the principal contractor's sufficient to pay the subcontractor.

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Ed. C. Worns, doing business under the firm name of E. C. Worns & Co., against H. L. McConnell and Stoner & Co., to recover for labor performed, and materials furnished, in the erection of a house owned by defendant McConnell, and to fasten a lien on the house and lot. From a judgment for the plaintiff, defendant McConnell appeals. Affirmed.

The suit was originally commenced in the court of a justice of the peace, and as styled in the complaint the suit was against "H. L. McConnell and Matthew T. Stoner and C. E. Bryan, late partners in business under the name of Stoner & Company." The summons was issued on November 22, 1892, and the same was marked executed on the said Bryan, December 1, 1892, and on McConnell December 9, 1892. There was no service upon Stoner. In the justice of the peace court judgment was rendered in favor of the plaintiff "against Stoner and Bryan and H. L. McConnell for $83.00, $15.00 attorney's fees, and costs of this proceeding, and the same is declared a lien on the following property." (Describing the lot upon which the house was erected for McConnell.) From this judgment an appeal was taken to the city court by H. L. McConnell. In the city court the defendant H. L. McConnell filed his plea in abatement setting out the summons and complaint issued and filed in the justice of the peace court, and also the entry of judgment of the justice of the peace, which is copied above. And the defendant alleged in said plea that the facts set forth by the summons and complaint, and the judgment, show that the said cause of action was discontinued, and judgment rendered against this defendant was invalid. To this plea in abatement the plaintiff demurred on the ground (1) that the plea was no answer to the complaint, or any part thereof. (2) That the said plea was not filed by Stoner & Co. or by either member of said company. (3) That said plea was filed aft er the said McConnell had appealed the cause to the city court, thereby waiving such defects as he complained of, and by such acts he was estopped from making such objections. (4) That the alleged defects in the judgment entry of the justice of the peace court constitute no defense to this action in the city court, as in said city court, under the law, the case is triable de novo. This demurrer was sustained, and the de