The opinion of the Court was delivered by
The plaintiff sues to recover a tract of laud of seven huudred and twenty arpeuts, in Lafayette parish. lie acquired title
In 1873 and 1874 (Meine being then the owner) the land was forfeited for non-payment of taxes and was returned as forfeited to the Auditor’s office, in December of 1874 and 1875, respectively. On the 6th of the following May (1876), the tax collector of Lafayette sold the land by public auction, and William Brandt bought it for $65 64, and received from the collector a deed which contained the usual stipulation that the owner might redeem the property within six months. On the 31st of the same month, Meine redeemed the land and obtained from the Auditor his certificate of redemption, and this certificate was recorded in Lafayette the following month, June 15,1876.
It must be noted that Brandt was then the recorder, and himself recorded this certificate of redemption.
Notwithstanding this certificate of redemption, obtained the same month that Brandt had bought at the tax sale, obtained too through the instrumentality of Brandt who was Meine’s agent, and notwithstanding this certificate had been recorded by Brandt himself officially in the next month after his purchase, he sold the land to one Salles in the following January (1877), and this Salles was the deputy'of the tax collector and had himself signed the certificate of redemption before its transmission to the Auditor, wherein he certified that Otto Meine had redeemed the land and paid the forfeiture.
Monzelun acquired from Salles four months after Salles took his deed from Brandt, viz: in May, 1877. These three are the defendants.
During the progress of the trial the defendants peremptorily excepted that the plaintiff had bought a litigious right, the reprobation of which bv law prevented his recovery. The court did not act on the exception then and the parties proceeded, but the trial being concluded, judgment rested upon that exception alone. It was sustained, and the plaintiff had judgment for one hundred dollars, the price paid by him for the land, with interest from the date of his deed to the filing of the exception.
Litigious rights are defined in the last article of the Code to be those which cannot be exercised without undergoing a lawsuit. This article is exclusively occupied with definitions, and begins with the declaration that whenever the terms of law employed in the Code have not been particularly defined therein, they shall be understood as defiued in that article.
A litigious right had been particularly defined in the body of the Code in these words: Aright is said to be litigious whenever there
The definition in Art. 2653 applies to that kind of litigious right which in the article next before is said one can be released from by paying the price at -which it was.bought. There are different kinds of litigious rights. Article 2652 permits him against whom a litigious right.has been transferred to get released by paying the real price of the transfer, and the next article declares when a l-fght is said to be litigious. The collocation of the two articles forces the conclusion that the kind of litigious right that one can be released from by paying the real price of it is that one, the enforcement of which is resisted by an existing suit. Else why the definition immediately following. These two articles are necessarily construed together. They form parts of the same subject-matter, and manifestly relate to and regulate the particular kind of litigious right that is there under consideration, enacting first how one may be released from the attempted enforcement of a litigious right, and then defining what is the litigious right from the enforcement of which this means of escape is provided.
The decisions of this Court have uniformly restricted the meaning of this kind of litigious right to the terms employed in Art. 2653. In Denton vs. Willcox, 2 Ann. 62, the Court dismissed the objection curtly, although from the note of the Reporter it appears to have been argued with citations of numerous authors. It was a purchase of a judgment which was final in that case. This was followed by Marshall vs. McCrea, 2 Ann. 79, where the demand was unquestionably litigious at the date of the transfer, as it was the subject of a suit then pending-, but that litigation had ceased and the Court said the demand had lost its litigious character by a judgment which had finally deteimined the rights of the parties. See also Consol. Assoc. vs. Comeau, 3 Ann. 553. In Pearson vs. Grice. 6 Ann. ut supra, it was emphatically said this Court has uniformly refused to avoid the sale of a thing on the giound that it was a litigious right unless suit had been brought to enforce the riglitjat the time of sale, and this was cited and applied in Grayson vs. Sanford, 12 Ann. 646. This was succeeded by Billiot vs. Robinson, 13
There was no suit pending at the time of the purchase by the plaintiff of this land, and the fact that a suit might possibly be necessary to enforce his claim to it does not constitute it a litigious right, and therefore the exception of the defendants was improperly sustained.
The affairs of modern commerce would be seriously hampered by a narrower construction of our codal provisions touching litigious rights. No one could safely purchase a mortgage-note lest perchance the maker of it should resist its payment by flimsy pretexts of the invalidity ot the mortgage, albeit his resistance might be merely for delay.
Recurrence to the French authorities in the explication of the provisions of our Code corresponding to those of the Napoleon Code are rendered unnecessary when a series of our own decisions have settled the meaning of our own text, but as the lower judge quoted Pothier to sustain his ruling, it is pertinent to remark the fact that his teaching-on this subject did not prevail in redacting the Napoleon Code:
“Pothier enseignait que ces expressions comprenaient toutes les eróanees qui sont contestées ou peuveut l’étre, eu total on en partió, par celui qu’on prétend débiteur, soit que le procés soit deja coinmencé, soit qu’il ne le soit pas encore, mais qu’il y ait lieu de l’appréhender. Au contraire, le President de Lamoignon n’admettait le retrait que lorsqu’il y aurait litige engage, ce qui etait également professé par Rousseaud de la Combe et par Mornae. Les rédacteurs du Code ont adoptó cette derniére opinion et ils ont declaró dans Part. 1700, que la chose .est censóe litigieuse des qu’il y a procos et contestation sur le fond du droit.” Répertoire Général, 5 tome, 910, secs. 70-2. See the full discussion of the French commentators in 13 Ann. 529-535.
From the statement of the chain of title hereinbefore given, it is manifest that the plaintiff is entitled to recover. He derives from Otto Meine, who had redeemed the land from the tax sale within the time permitted by the statute under which it was sold. The defendant, Monlezun, derives his title from that tax sale, the effects of -which had been nullified by the redemption. His immediate vendor is the deputy of the tax collector who had himself signed the certificate of redemption, and his vendor in turn is the recorder who had recorded
It is therefore ordered and decreed that the judgment of the lower court is reversed, and it is further decreed that the plaintiff have and recover of the defendants the tract of land described in his petition, with costs of both courts.