The city of New Orleans claims to be the owner of a one-fourth interest in and to certain lots in squares Nos. 495, 501, 502, 503, 620. Said squares lie north of Broad street, between the prolongation of Philip and Toledano streets. The city claims its interest through John McDonogh.
In order to protect such interest as the city might have in said lots, by preventing the running of prescription against it, the city filed notice of its claims with the register of conveyances under the provisions of Act No. 169 of 1926.
The Puritan Company claims the same property by purchase from Oliver W. Rembert, who had acquired the same from the Quaker Realty Company. It brings this suit to cancel the aforesaid notice from the conveyance office, as constituting a cloud upon its title.
The Quaker Realty Company had originally acquired said property at tax sale, and there is no question that as to a three-fourths *Page 367 interest in said lots its title is unimpeachable, and is not even questioned by the city. On the other hand, this court has held in Carrere v. City of New Orleans, 162 La. 981, 111 So. 393, that John McDonogh, through whom the city claims said one-fourth interest, never had any title whatever to any lands north of Broad street in this section; so that McDonogh could convey no title to the city as to said one-fourth interest claimed.
But the defense of the city of New Orleans is that as to these particular lots the question of title to an undivided fourth interest therein has heretofore been passed upon and adjudicated favorably to the city and adversely to the Quaker Realty Company, through whom the Puritan Company claims, to wit, in the matter entitled "In re Quaker Realty Company, Praying for Confirmation of Title," No. 5669 of the docket of the Court of Appeal for the Parish of Orleans, reported in 10 Orl. App. 79, which is also No. 83844 of the civil district court for said parish.
In that case the Quaker Realty Company sought to confirm its tax title contradictorily with the city. A default was taken against the city and was confirmed. Thereupon the city brought an action to annul said judgment. An exception of no cause of action was sustained by the court below, but was reversed by the Court of Appeal. See In re Quaker Realty Co., 7 Orl. App. 296. The suit to annul the judgment of confirmation was then tried in the court below and decided in favor of the city. An appeal was then taken to this court, and this court, in declining jurisdiction and transferring the case to the Court of Appeal, found that the issue involved was the title to the property and the matter in dispute was the value thereof; that the city claimed title to the property and the Quaker Realty Company denied the city's title and set up title in itself. In re Quaker Realty Co., 131. La. 84, 59 So. 23. *Page 368
When the case came before the Court of Appeal, that court also found that to be the issue involved, saying: "If we find that the City is the owner of said squares; the tax sale must be set aside, but if we come to the conclusion that she is not the owner of them, then, she has no right to raise those questions [i.e. other causes of nullity of the tax sales]." And the conclusion of that court was [even though wrong] that the city had a one-fourth interest in said lots.
It is true that the form of the judgment was that the original judgment of confirmation be annulled in so far as the interest of the city was concerned. But the substance of the judgment in view of the issues involved, to wit, title vel non in the city, was that the city was the owner of an undivided one-fourth interest in the lots.
That issue is therefore not open to further inquiry, but is foreclosed by said judgment reported as aforesaid in 10 Orl. App. 79. And accordingly the judgment for plaintiff must be reversed.
The judgment appealed from is therefore reversed, and it is now ordered that plaintiff's demand be rejected at its cost in both courts.
OVERTON, J., dissents.