The public administrator for the parish of Orleans applied to the court below and was appointed administrator of the estate of a colored woman, Emma Williams, widow of James V. Martin, deceased. Thereafter, the said administrator brought this suit to annul a tax sale to defendant of certain real property situated in the city of New Orleans. The grounds of nullity alleged are:
(1) Insufficient description in the assessment;
(2) That the property was advertised for sale on Tuesday instead of Saturday;
(3) That the advertisement extended over a greater period than 30 days;
(4) That no lawful notice of delinquency was served on the owner, Emma Williams; and,
(5) In the alternative, if it should be held that the said sale was not null for the reasons mentioned, plaintiff, as the administrator of the estate of said former owner, is entitled to redeem said property because no lawful notice of the purchase thereof has been given, as required by Act No. 224 of 1910.
"Defendant appeared and excepted to plaintiff's capacity to stand in judgment on numerous grounds, among which were: That, at the time of the filing of the suit, plaintiff had not taken the oath as administrator required by law; that the appointment was null because not preceded by proper legal formalities ;. that plaintiff was not an heir or creditor, or in any manner related to deceased; and that the court below was without jurisdiction to make the appointment, in that, at the time of her death, Emma Williams was a resident of the parish of Terrebonne, where she died. Further, in the alternative, that at her death said deceased left a nuncupative will by public act, in which she designated a testamentary tutor for her minor children, who had the right to administer said estate, and, in event of his failure or refusal to act, a dative testamentary executor should have been appointed.
The said exception further alleged, in the alternative, that the appointment of Flanagan as administrator was void because the Acts No. 87 of 1870 and No. 74 of 1877, purporting to authorize appointment of a public administrator for the parish of Orleans, violate articles 14 and 15 of the Constitution of 1879, and articles 16 and 17 of the Constitution of 1898, as well as the Constitution of 1868, in that the said acts, in so far as they purport to vest in the Governor the power of *847appointing said officer, constitute an attempt to give to him powers and functions properly belonging to the judicial department of the government of the state. Further, that said acts violate article 48 of the Constitution of 1898, article 46 of the Constitution of 1879, and similar provisions in the Constitution of 1868, prohibiting the passage of special or local laws regulating the practice or jurisdiction of courts.
Defendant also pleaded the exception of no cause of action.
All of the above exceptions having been overruled, defendant pleaded the prescription of three years under article 233 of the Constitution of 1898, which plea was referred to the merits, and an answer was then filed denying generally the allegations of fact contained in the petition. Further answering, defendant denied the right of Emma Williams, or the plaintiff as her administrator, to redeem the property under Act No. 224 of 1910, on the ground that said act was also unconstitutional.
In the alternative, defendant averred that it had paid the state and city taxes upon said property for several years, had also made extensive repairs, and that, in the event the sale was annulled, it should recover for said expenditures, with 10 per cent, per annum thereon from date of payment under the law governing redemption of property purchased at tax sales.
The property in dispute was later, on motion of plaintiff, judicially sequestered, and subsequently bonded by defendant. Thereafter, on M'arch 20, 1916, plaintiff filed an amended petition, in which it was set out that, since the filing of the original suit, it had been discovered that the deceased, Emma Williams, had left a last will in nuncupative form by public act, in.which no executor had been named; that plaintiff had applied to the district court for the parish of Orleans and been duly appointed dative testamentary executor, after complying with the requisites of law. He therefore asked to be made party plaintiff, as such executor, in this suit.
Defendant excepted to the amendment upon many grounds, among the contentions made being that Flanagan had appeared in his individual capacity, and was therefore without interest; that, if it be claimed that same was filed in his representative capacity, it came too late; that the amendment substitutes a new party plaintiff; that it changed the issues; and that plaintiff could not appear in the dual capacities of administrator and executor. The pleading then proceeds to reiterate all of the exceptions previously urged against plaintiff as administrator.
The evidence had been submitted and the ease laid over for argument at the time the amendment was filed. On May 22, 1916, according to the minutes, the cause was continued for argument on May 23d, and, on the latter date, again continued until June 1st. On June 1st appears the following minute entry:
“This case was called, and after further hearing, was continued until June 19, 1916, for argument.”
On June 19th, there appears the following further minute entry, to wit:
“This case was called, and after hearing offers of evidence, was argued by F. Rivers Richardson for plaintiff and Theodore Cotonio for defendant, Mr. J. A. Woodville to argue Tuesday, June 20, 1916, at 10:30 a. m.”
The next minute entry, under date of November 22, 1916, shows that a judgment for plaintiff was amended and signed.
From a judgment in favor of plaintiff, annulling the tax sale, and reserving “all of said claims and counterclaims to be fixed and adjusted on said accounting,” the defendant appeals.
Opinion.
[1] The first question to be disposed of herein is that of jurisdiction in the court be*849low; for, if it was without jurisdiction to appoint the plaintiff administrator in the first instance, or later as dative testamentary executor, the entire proceedings by which he attempted to acquire the capacity to represent the estate of deceased were null, and may be attacked at any time and under all circumstances. R. O. L. p. 74 et seq. (vol. 11) verbo Executors and Administrators. We find, however, that the court below was seized of jurisdiction. The deceased, Emma Williams, had lived in the city of New Orleans for several years prior to her death, and her home and domicile were there. On account of ill health, she had temporarily gone to visit friends in the parish of Terrebonne, where she might receive their kind ministrations in her sickness, and, we think, had no intention of abandoning her residence and domicile, though she died of the malady of which she was suffering in that parish.
[2] Having found that the lower court had the jurisdiction to appoint the administrator, and later the executor, defendant’s other exceptions must fall for the reason that they cannot be urged in this collateral manner. Vinet v. Bres, 48 La. Ann. 1260 et seq., 20 South. 693, and authorities there cited.
Exception of No Cause of Action.
[3] An administrator or executor has the right to sue and stand in judgment in an action to annul a tax sale of property belonging to the estate which he represents. Succession of Williams v. Chaplain, 112 La. 1075, 36 South. 859.
Prescription of Three Years under Article 233 of Constitution.
[4] The record shows that plaintiff’s tenant remained in possession of the property in dispute under its tax title for three years prior to the filing of this suit, and hence the prescription of article 233 of the Constitution is inapplicable'. Carey v. Cagney, 109 La. 77, 33 South. 89.