The action was petitory. The land claimed had been assessed in the name of J. G. Richardson. It was offered at tax sale, and plaintiffs, In 1881, became owners at that sale for the sum of ?43 and a fraction, as shown by the deeds duly recorded. One of the deeds was dated in June, 1881,“and the other In August, 1882. Plaintiffs, in support of their title, pleaded prescription. They also pleaded that their sale operated against the state, and precluded her from giving the land to the levee board.
Defendants trace their title to the United States government, and aver that the lands, being swamp and overflowed lands, inured to the state of Louisiana under the swampland grant (this is not contested by plaintiffs), and that it was granted by the state to the board of commissioners of the Caddo levee district; that it was sold by the board to R. J. Flournoy, and by Flournoy to- them, as shown by deeds annexed to their answer.
They cited the levee board in warranty. The latter joined issue with plaintiffs; averred that defendants became owners without warranty; and, further, that plaintiffs’ tax title is an absolute nullity, as averred by defendants in their answer. The warrantors, in a supplemental answer to the call in warranty, averred that plaintiffs knew that they acquired no title, but none the less they tendered the amount alleged to have been paid by the plaintiffs at the tax sale, plus the interest.
In order to prove that the land had passed from the state into commerce, plaintiffs introduced two patents in evidence to the property in controversy, less the indorsements on these patents made by the register of the land office. As well mention at this time, in stating the facts, that defendants, while introducing evidence, introduced this indorsement on the patents. The question regarding the admissibility of this evidence, in our view of the issues, has lost all importance. Plaintiffs also introduced their tax deed in evidence.
The register of the land office testified that it appeared from the record of his office that the land had been sold at the land office at Natchitoches, and that the indorsements on the face of the patents made it evident that the entry and conveyance just before mentioned were null, and that the warrants had been returned as before mentioned. The defendants further proved up their title to be as alleged by them.
*90The judge of the district court, as shown by a brief analysis of the opinion, held that the land belonged to the state, and was not subject to taxation; furthermore, that it was not sold under a valid assessment; that no notice was ever given to the one in whose name it had been assessed; and that the land was sold in block, in violation of article 210 of the Constitution of 1879. Prom this adverse judgment, plaintiffs appeal. „
We take it that plaintiffs do not claim that J. G-. Richardson, the one in whose name the land was assessed, ever had a title to the land. He never was in possession. It does not appear that any one of that name was ever known, or that one of that name ever had the least sign or vestige of title to the land. The assessor by whom the assessment was made years ago gave the name of J. B. Richardson to the assessment. This is the basis of plaintiffs’ claim to the property. The law under which the assessment was made required the property to be assessed in the name of the owner, advertisement of the property of the delinquent, and notice prior to the sale. None of these formalities were complied with. Moreover, the property was sold in block, in face of the Constitution, which required property sold 'at tax sale to be adjudicated to the bidder offering to pay the taxes for the least quantity of property offered. The title, lacking the essentials before stated, is not even prima facie valid.
But plaintiffs say that the state of Louisiana assessed the property as belonging to J. G. Richardson, in whose name it was advertised and sold, and that, in consequence, she (the state) is estopped from denying or contesting the validity of the sale; that the estoppel against the state holds good against the defendants, Heilperin & Leonard and the Caddo levee board, all of whom claim, as we have seen, from the state.
The land warrants on which the entries were made were unquestionably returned to the locator. It does not appear that the least objection was urged against their return by the register of the land office to the locator. For more than 20 years after they had been returned no one laid claim to the land. The plaintiffs are scarcely in a position, after these many years of acquiescence by silence, now to urge that the state is estopped. The act of the assessor in thus giving a mere name to an assessment cannot operate as an estoppel under the circumstances. The assessing- officer’s acts were entirely illegal, and for that reason afford no ground to base a claim to land adversely to the state. The assessing officer, who assesses property not segregated from the public domain, does not bind the state. The land not being taxable, no title passes, and the state is not estopped.
We have noted that plaintiffs’ contention is that the state did sell the land and issued a patent. It is well settled regarding all lands that the title remains in the state until the state chooses to part with its title. Patents were written, but the record does not disclose that they were delivered to the asserted patentees. They never laid any claim to the land, or appeared anywhere as the owners. The land continued in the open possession of the state, and was transferred to defendants’ authors without any objection from any one. The patentees perhaps could be heard, or their heirs or assigns, but not those who trace their title to the patents without any title whatever except a paper title to which an assessor, without authority, gave the- sanction of his name.
Plaintiffs cite with confidence the decisions of the Supreme Court of the United States in which it was decided that a patent once issued either by the state or the United States is .conclusive until set aside or annulled by some judicial tribunal. Unquestionably this is generally true. It is also true that one who claims under a patent thus issued, or traces his title to it, must show that he had acquired some right under the patent other than by an unauthorized and illegal assessment.
Plaintiffs further contend that the indorsement in red ink across the face of the patents, bearing no date, nor showing by whom made, was no part of the record, and is not binding upon any one. To this, we think, an easy answer is that plaintiffs cannot be held to be concerned in matter of this entry. The patentees appear to have acquiesced in the cancellation, and to have received the patents, and, for all we know, may have located them elsewhere. The plaintiffs cannot successfully espouse the cause of the original patentees, from whom they hold nothing, only because an illegal tax sale was made early in the 80’s. ISven as against these patentees, *92the record indorsement in the land office would, in all probability, require explanation before treating them as mere nullities signifying, as plaintiffs contend, nothing.
(March 30, 1903.)The plea of prescription invoked by plaintiffs against the state and those who hold under the state can be of no avail to a plaintiff in an action on a tax deed, they never having been in possession. Moreover, plaintiff in a petitory action does not acquire anything by prescription. Lambert v. Craig, 45 La. Ann. 1109, 13 South. 701. And, furthermore, the public domain is not subject to that plea. State v. Buck and Fruit Co., 46 La. Ann. 656, 15 South. 531.
In equity plaintiffs are entitled to the taxes paid by them as adjudicatees at tax sale. They have been tendered to them, and we assume that they will be paid in compliance with the tender made.
We therefore only have to affirm the judgment dismissing plaintiffs’ demand, for reasons assigned.
PRO VO STY, J., not having heard the argument, takes no part.