On Eehearing.
Nicholls, O. J.A rehearing was granted in this case restricted to the question of the validity or invalidity of the tax sale, in so far as concerns the interest of the two defendants to the undivided half once owned by their grandfather, Henry Levy, in the property in question, and title to which they claim by inheritance, the inquiry being restricted to the irregularities alleged in the tax proceedings leading to the sale.
The property involved in this litigation was purchased by Henry *586Levy during Ms marriage with Sarah Klein. Henry Levy died in March, 1876, leaving as his heirs “his sons, Alexander Levy and Leon Levy, issue of his marriage with Sarah Klein. His succession was opened in the Civil District Court for the Parish of Orleans, and the two sons were, ion the 21st of July, 1881, recognized by judgment of court as his sole heirs to the property in question, their mother being entitled to the undivided half as widow in community, and holding possession of the other half under her usufructuary rights.
Leon Levy died on the 3rd of August, 1889, and Alexander Levy died on the 18th of August of the same year.
Their mother, Sarah Klein, died on the 23rd of February, 1894. On the 24th of May, 1900, two lots claimed by the plaintiff were separately sold at tax sale in enforcement of State taxes of 1889, assessed upon it in the name of Henry Levy, and adjudicated to Lawrence Fabacher; deeds to Fabacher were executed on June 12, 1900.
On the 21st of July, 1891, Fabacher, by notarial act, sold and assigned, but without,warranty, to the plaintiff, Herman Levy, a son of Alexander Levy, and the plaintiff herein, all his (Fabacher’s) rights, title and interest in and to th.e two lots adjudicated to him, for and in consideration of recited price of five hundred dollars, which the vendor acknowledged he had received and for which he gave acquittance.
The titles were declared to have been based on the tax adjudications referred to. Mrs. Sarah Klein, the mother of Herman Levy, intervened in this act, and took cognizance of the sale to him by Fabaeher. She referred to the tax adjudications -and acknowledged that they were valid and binding; that she had no defenses to urge against the same, and that title to the property had vested absolutely in Fabacher by non-redemption of the same within the period fixed by law.
In view of the premises and in consideration of the sum of five hundred dollars then and there paid to her by Herman Levy, she “relinquished, abandoned, remitted, transmitted and forever quit-claimed ¡o the latter (which quit-claim Herman Levy accepted) all such rights, title, interest, claim, pretension, action or cause of action she might have had in the properties, binding herself to warrant him and his heirs,or ¡assigns against, all person or persons lawfully claiming the same in the quiet and neaceable possession of the same forever.”
On the 12th of March, 1894, the plaintiff instituted the present action of slander of title against Ella Levy, wife of Isidore Rich, and Teenie *587Levy, widow of Leopold Klein, the daughters and sole heirs of Leon Levy.
On the 24th of March, 1894, the defendants answered. They averred: That plaintiff has no legal nor equitable title to the property described in his petition, for this, namely: That the tax sale under which his vendor acquired, and under which Sarah Klein Levy confirmed to him for family purposes, was and is null and void, because:
1st. A proper assessment of said property was not made.
2nd. That notice of demand of payment, of advertisement, of the sale of said property was not made or given as required by law, your respondents being then non-residents and in ignorance of what was done.
3rd. They aver the sale was made and had through the instrumentality of Herman Levy to Lawrence Eabacher, and from him to Herman Levy, by Sarah Klein Levy, his grandmother, in the interest and for the benefit of their said grandmother, and the children and heirs of Henry Levy, Alex Levy and Leon Levy, and without any other consideration to said Sarah Klein Levy, and with the view and object of placing said property jn the name of Herman Levy, as a living person, to collect the revenues thereof, pay the legal charges and taxes accrued thereon, and with the surplus of proceeds thereof, to contribute to the support of their grandmother, Sarah Klein Levy, in the same manner he and Alex Levy before had done, prior to said tax sales; said tax sales and confirmation being without the knowledge of these defendants, and concealed from them until January, 1894.”
On the 25th of April, 1894, by act before Dreyfous, notary public, Leopold Klein, husband of Teenie Levy, executed a power of attorney co Isidore Rich, in which he, among other matters,' empowered him “to authorize my (his) wife in all acts and matters in which such authorization is necessary, particularly to authorize her to defend the suit against her instituted by Herman Levy or to enter into that connection into all contracts, covenants and agreements as may be requisite; to sign all bonds of appeal or other needful bonds, or to assist her in any compromise and composition as she may deem most advisable in her interest.” On the 15th of May, 1894, Ella Levy, wife of Isidore Rich, and Teenie Levy, wife of Leopold Klein, and Isidore Rich to aid and authorize his wife and under the said power of attorney to aid and assist Mrs. Klein, executed an act before Cohn, notary, in which it was recited that, whereas, Herman Levy is the apparent owner of certain *588real estate ¡hereinafter described, situated in this city, and whereas they are desirous of giving a full quit-claim to said Levy thereto, and of his ratifying his title thereto, — therefore, in view of the premises, and for a full and valuable consideration received by them, 'as they hereby acknowledged, they do respectively, by these presents, relinquish, abandon, remise, transfer and forever quit-claim unto the said Herman Levy, his heirs and assigns, all of which the said Herman Levy hereby accepts, 'all such rights, title, interest, claim, pretensions, action or cause of action which they might have or might have had in and to the following described real estate, hereby binding ourselves to warrant said Levy, his heirs and assigns against all persons lawfully claiming the said property in the quiet and peaceable possession of the same forever.” (After this follows a description of the properties declaring them to be the same properties acquired by Lawrence Eabacher at the tax sales.)
Herman Levy did not sign this act, though it was evidently contemplated that he should have done so. This quit-claim deed was recorded on June 27th, 1894.
On the 26th of J une, 1894, Herman Levy sold these lots under full warranty and with subrogation to Frank J. Nusloch for five thousand dollars — twenty-five hundred dollars cash, the balance represented by three notes of the purchaser, payable to his own order and by him endorsed, secured by special mortgage and vendor’s privilege on the property. The plaintiff repudiated and repudiates the claim that the tax sales here made for the reasons and purposes stated in the answer and maintains and contends that they were made not by consent, but adversely to the owners; that Fabaeher obtained a full, absolute and complete title to the lots which he himself subsequently áequired, solely on his own account and which he caused his mother to have confirmed and ratified for a valuable consideration passing to her from himself.
'"The quit claim from the defendants to the plaintiff is not referred to in the pleadings, nor are any claims urged and asked upon it. It was evidently executed under some compromise arrangement or reservation.
Mfrs. Sarah Rlein only owned the undivided half of the property; her ratification and quit-claim covered nothing more than her own interest in the property. She could bind herself, but not bind the defendants holding an interest in the ¡other undivided half as heirs of their 'father, Leon Levy, and the plaintiff denies that she intended or attempted to do so.
*589Unles the defendants have concluded themselves in some way we think their interest in the properties as heirs of their father was no* divested by the tax sales referred to. They were made in enforcement of the delinquent taxes of 1889, under an assessment made in the name of Henry Levy. He was not the owner at that time, but had been dead a number of years. The father of the defendants had been recognized as one of his heirs as far back as 1881 by judgment of court and his mother, Sarah Klein, was in possession as usufructuary at the date of the tax sales.
The deed refers to Henry Levy as being the delinquent taxpayer and declares that the notices given were sent to him. An assessment of the property made at that time in the name of Henry Levy and notices sent to him were not under the circumstances of the case a compliance with the requirements of the law. We set aside a tax sale in Genella vs. Vincent, 50 Ann. 966-967, under circumstances very similar to the present. The property in that case had been sold under an assessment in the name of Catherine Neidergang. She had removed from New Orleans to Switzerland years before and had died there, bequeathing her property to her husband, Jaquier. Her succession was opened in New Orleans and her husband recognized and placed in possession. At the time of the tax sale Jaquier was absent from the State, but the property was in possession of his tenant. In the tax deed the notices required by law to be given were declared to have been given to the delinquent tax debtor and the delinquent tax debtor in the deed declared to be Catherine Neidergang.
At the time of the tax sale which is involved in the present litigation, Teenie Levy, wife of Leopold Klein, was owner of one undivided eighth interest in each of the two lots described in plaintiff’s petition as'heir of her father, Leon Levy, and Ella Levy, wife of Isidore Rich, was owner of one undivided eighth interest in each of said lots described in plaintiff’s petition as heir of her father, Leon Levy. We are of opinion that the said Ella Levy and the said Teenie Levy were not divested of their said interest in the property by the tax sales referred to in the pleadings, and that they are still the owners of the same. We are strongly impressed with the belief that Fabacher was merely a party interposed to hold title, and that the real adjudieatee at the tax sale was either Mrs. Sarah Klein or Herman Levy. It will be remembered at the time of the tax sales the latter was himself a joint owner in the properties by reason of his heirship of his father, Alexander Levy.
*590If the plaintiff in this suit has made payment of taxes on the property, towards the payment of which defendants should have contributed, he has the right to enforce such contribution now. The continued possession of the property has given rise to reciprocal rights and obligations between the parties which should be liquidated and the property partitioned, if the parties elect to put an end to their joint ownership. The record is not in a situation to enable us to pass upon these questions, and the cause must be remanded for that purpose.
Eor the reasons herein assigned, it is ordered, adjudged and decreed that the defendant, Ella Levy, wife of Isidore Rich, and the defendant, Teenie Levy, wife of Leopold Klein, are owners each of one undivided eighth interest in each of the lots of ground described in the petition of the plaintiff herein, the tax sales of the said properties by C: Harrison Parker, State tax collector, on the 24th of May, 1890, at which said properties were adjudicated to Lawrence Eabacher, to the contrary notwithstanding, and it is hereby ordered, adjudged and decreed that the said tax sales and the said adjudications be and they are hereby decreed, to the extent of the said interest of the said parties in said properties, null, void and of no effect, and that the same be set aside. It is further ordered, adjudged and decreed that the former decree of this court rendered in this matter, to the extent herein just adjudged and decreed, be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that this -cause be remanded to the District -Court and there reinstated on the docket, and that that court cause, by proper proceedings, to be ascertained, adjusted and liquidated the respective rights and obligations of the parties hereto arising out of and relating to said properties.
It is further ordered, adjudged and decreed that the plaintiff pay the costs of this appeal, defendants to pay the costs of the District Court. It is further ordered, adjudged and decreed that our former decree and judgment herein, except as herein altered -and amended, remain undisturbed and affirmed.
Breaux, L, dissents.