ture, and approved July 8, 1886, was Act No. 98 of 1886, from which we have quoted, that "all taxes, tax mortgages, and tax privileges shall be prescribed by three years. * * *"" The earlier act passed in 1886 (No. 26) refers in express terms to "state, parish, or municipal" taxation, and ordains the prescription of tax privileges and mortgages (not the tax itself) in three years. The later act (No. 98), purporting to be a state revenue law, does not use the words, "state, parish, or municipal," in connection with the declaration that taxes, tax mortgages, and tax privileges shall be prescribed in three years, but says, as did the two preceding revenue acts (those of 1880 and 1882) that "all taxes, tax mortgages and privileges shall be prescribed by three years." Yet this act was in force as law when the decision in Succession of Stewart, supra, was rendered, though that decision seems to ignore the prescription accorded by it as having any relation to municipal taxation, whether as to the taxes themselves, or the mortgages and privileges given to secure the same. The case of Succession of Mercier, 42 La. Ann. 1149, 8 South. 735, followed, in which it was declared that "the taxes assessed [meaning city taxes] from 1871 to 1888, both inclusive, are imprescriptible." Yet, so far as the taxes from 1880 to 1888 were concerned, there were the revenue acts of 1880, 1882, and 1886, ordaining, two of them the prescription of three years, the other of five years, against "all taxes, tax mortgages, and tax privileges." The following year the case of Leeds & Co. v. Treasurer was before the court (43 La. Ann. 810, 9 South. 488), and there it was broadly held that "the privileges and mortgages securing the payment of city taxes are prescriptible, but the taxes themselves imprescriptible." This decision was rendered in 1891. It had to do with city taxes for the years 1880, 1884, 1886, and 1887, and during that period there were in full force the aforesaid state revenue acts of 1880, 1882, and 1886, all declaring the prescription of three and five years against "all taxes, tax mortgages, and tax privileges."

From these repeated decisions it would seem that the intention had been to hold that the prescriptions accorded by the revenue acts of 1880, 1882, and 1886 were not applicable to city taxes, though it was nowhere so stated in those cases. This view of it would, however, be now taken but for the later decision of the court in State v. Recorder of Mortgages, 45 La. Ann. 571, 12 South. 882, decided in 1893, where the contrary was held. There the court used this language: "Taking the date of the service of the writ of mandamus, November 30, 1892, as that from which the computation of time is to be made, and we find that all tax mortgages and tax privileges securing the payment of municipal taxes of the years antecedent to 1889 are prescribed by

the terms of the revenue law of 1886, which are as follows: 'All taxes, tax mortgages, and tax privileges shall be prescribed by three years from the date of the filing of the tax roll.'" (Italics ours.) This is the exact language hereinbefore quoted from the revenue act of 1886 (Act No. 98 of that year). And the court in the Powers Case goes on further to say that all taxes, tax mortgages, and tax privileges (meaning city taxes and tax mortgages and privileges) are prescriptible by three and five years "under prior revenue laws"; meaning those of 1880 and 1882, hereinbefore referred to. Thus we have here a ruling apparently in conflict with earlier rulings. It shows an unsettled jurisprudence as to whether the prescriptions accorded by the revenue acts of 1880, 1882, and 1886 apply to city taxes vel non; and while in Hood v. City of New Orleans, 49 La. Ann. 1465, 22 South. 402, the court said: "With reference to prescription, it only remains to say that it did not run in favor of the tax debtor,"-thus apparently going back to the earlier rulings,-we think it wise, to the end of authoritatively settling the point at issue, which is likely to arise in other cases, to grant the writ applied for. It is therefore ordered that the writ of review do issue; that the court of appeals send up the record of the case; that counsel for plaintiff and defendant be notified; and that a delay of 20 days from this date be allowed for the filing of briefs.

On the Merits.

(June 4, 1900.)

NICHOLLS, C. J. The judgment of the court of appeals which has been brought up for review in this case was as follows:

"This case is presented to us on the following statement of facts: Plaintiff owns the four lots of ground described in his petition, the same being made part of this statement for the purpose of describing same. The same was properly assessed for the years 1891, 1892, and 1894, during which years it was owned by Jean Miramon, who paid the state taxes for those years. On August 5, 1898, he obtained the injunction filed in the record, restraining the city from selling the property for taxes, which the city would have done on August 29, 1898, had she not been prevented by this injunction. By mutual consent, the question submitted to the court for decision is narrowed down to the plea of prescription of two, three, and five years; all other claims in bar of the city's collecting taxes being waived or abandoned by the plaintiff. The court a qua sustained the plea of prescription, and perpetuated the injunction, and from this judgment this appeal is taken.

"The judgment is clearly erroneous. Since the decision in Succession of Stewart, it has been the settled jurisprudence of the supreme court that city taxes are imprescriptible.

The language of the court in Leeds & Co. v. Treasurer, 43 La. Ann. 813, 9 South. 488, is decisive of the present controversy: 'In Succession of Stewart, 41 La. Ann. 128, 6 South. 587, all of the statutes cited, and the constitutional provisions relied upon, were thoroughly examined and analyzed, and we decided that city taxes were imprescriptible, though the liens, privileges, and mortgages securing same are prescriptible. But, notwithstanding the tax privileges and mortgages have become prescribed, the city has the right to proceed against the property assessed for the purpose of realizing the taxes themselves.' And in Hood v. City of New Orleans it was said: 'With reference to prescription, it only remains to say that it did not run in favor of the tax debtor. It is settled that the tax debtor, who was personally indebted for the amount, had no right of defense growing out of whatever prescription applies when third persons are concerned.' 49 La. Ann. 1465, 22 South. 402. See, also, Succession of Mercier, 42 La. Ann. 1135, 8 South. 732; Rivers v. City of New Orleans, 42 La. Ann. 1201, 8 South. 484. The plaintiff's claim has neither law nor equity to recommend it. The judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that the injunction herein issued be dissolved and set aside, and plaintiff's demand rejected, at his costs in both courts."

An examination of the different statutes referred to, and the decisions bearing upon the subject-matter, satisfies us that the conclusion reached by the court of appeals is correct. The title of Act No. 26 of 1886, to which we are referred by plaintiff's counsel, is "An act to prescribe tax mortgages and privileges." Counsel says that in its first section it refers to "state, parish, or municipal taxes." So it does, but it merely declares "that all tax privileges and tax mortgages securing the payment of taxes, whether state, parish, or municipal," shall be prescribed by three years. Counsel admits this, but says the omission is supplied by the express terms of section 34 of Act No. 98 of 1886, that "all taxes, tax mortgages, and tax privileges shall be prescribed in three years"; but the title of the act evidently restricts its effect to providing an annual revenue for "state purposes." Expressions in the body of the act going beyond this make the body broader than the title, and must be disre garded. Our attention is directed to article 243 of the constitution of 1898, to the effect that "all the articles and provisions of this constitution regulating and relating to the collection of state taxes and tax sales shall also apply to and regulate the collection of parish, district, municipal board and ward taxes." This article refers obviously to the method of the collection of taxes, and not to the prescription to be applied to them. Seeing no error in the judgment of the court of appeals, it is hereby affirmed.

(52 La. Ant. 1550)

BALL et al. v. CITY OF NEW ORLEANS et al (No. 13,325.)

(Supreme Court of Louisiana. June 4, 1900.) MORTGAGE FORECLOSURE-RIGHTS OF PUR

CHASER-PETITORY ACTION-RENTS
AND REVENUES.

1. Where a person acquires real estate free of incumbrance at a sale made in satisfaction of the ranking mortgage and vendor's privilege, the mere assumption that such person thereafter elected to take the place of the former owner with respect to a contract whereby it was agreed that said property should be used for a number of years for a certain purpose, and should then revert, or be turned over, to another, without proof of any specific agree ment on the part of the adjudicatee, is an insufficient basis for a judgment; and, where the evidence fails to show with certainty that the property was used by him for the purposes and under the conditions contemplated by such contract, it will be held that the title remains in such adjudicatee, or his heirs or assigns.

2. Where a person, believing himself to be entitled thereto, demands and holds possession of property by virtue of a construction placed by him upon a contract concerning the same, and upon the acts of those claiming adversely, who acquiesce in such demand and yield such possession, it cannot be said that the possession thus acquired and held is in bad faith.

3. Where, in such a case, the adverse claim ant asserts his right in court, and obtains judgment decreeing him to be the owner, and restoring him to possession, the rents and revenues to which he is entitled, from the date of the filing of the suit, are to be measured by the value of the property for ordinary purposes, and cannot be augmented by adding thereto the additional revenue resulting from the use of the property by a municipal corporation as a public market.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; John St. Paul, Judge.

Action by Mrs. J. A. Ball and others against the city of New Orleans and others. Judgment for plaintiffs. Defendants appeal. Modified.

James J. McLoughlin, Asst. City Atty., and Samuel L. Gilmore, City Atty., for appellants. Rouse & Grant, for appellees.

MONROE, J. This is a petitory action brought by the heirs of Joseph Bilgery for the recovery of 12 lots of ground in New Orleans, with the buildings thereon, known as the "Second Street Market," together with certain rents and revenues. The defendants were the city of New Orleans, and its lessee, the New Orleans Contracting Company, Limited; but the contractor, having disclosed its lessor, was dismissed from the case, and the only defendant now before the court is the city of New Orleans, who pleads the prescription of 1, 2, 3, 5, and 10 years, and alleges that Joseph Bilgery acquired the rights and assumed the obligations of Joseph Raymond under Ordinance No. 2,041, A. S., and by that title operated the market in question for 20 years, and thereafter, to wit, upon March 18, 1894, in accordance with the terms of the said ordinance and with the obligations of said Raymond, turned the same over

to respondent, and that plaintiffs are therefore estopped to make the claim here set up, and should be condemned to make a clear title of said property to respondent, and she prays judgment accordingly.

The facts, as disclosed in the record, are as follows: Upon March 18, 1873, the council of New Orleans passed an ordinance (No. 2,041, A. S.) granting to Joseph Raymond permission to erect, at his own expense, a market house on the lots in question, and there conduct a market, under municipal supervision, subject to the conditions that at the end of 10 years the city should assume the administration of said market, and should for a period of 10 years retain all revenues in excess of $500 per month (or $6,000 per year), and that at the end of 20 years the property should revert to the city. It was further provided that the city should impose no taxes on said property, and that Raymond should not alienate, divert, or incumber it, to the prejudice of the city's rights, and the provisions of this ordinance were embodied in a contract entered into between Raymond and the city, April 10, 1873, and duly registered In the conveyance office on the 17th of the same month. It appears, however, that the lots upon which the market house was to be erected had been purchased by Raymond from the Union National Bank on February 27, 1873, for something over $14,000, of which a comparatively small part was paid in cash, and for the balance, of over $11,000, Raymond gave notes, secured by mortgage and vendor's privilege, which were outstanding and unpaid when the contract with the city was entered into. It further appears that in April, 1876, some of the notes mentioned being past due, the bank caused executory process to issue thereon, under which the property was seized, and upon March 3, 1877, adjudicated to Joseph Bilgery, as the subrogee of the seizing creditor, holding the ranking mortgage and privilege. Bilgery, having gone into possession of the property, died in September, 1877, leaving a widow and four children, viz. a son by a previous marriage, and three daughters by the wife who survived him. In 1878 the widow acquired the interest of the son, Joseph M. Bilgery, and thereafter, in 1879, she also died, and her three daughters, issue of the marriage with Joseph Bilgery, became owners of the entire property, and were put in possession, and so remained until March 30, 1894, when the city of New Orleans, acting through the commissioner of police and public buildings, and assuming to proceed agreeably to the terms of the contract made with Raymond, in 1873, took possession; the circumstances connected therewith being thus stated in a letter from the commissioner to the mayor, of date April 2, 1894, to wit: "Dear Sir: Acknowledging receipt of yours of the 29th ult., inclosing copy of letter from City Attorney O'Sullivan, of same date, relative to the expiration of the lease of the Second Street Market, wherein he advises that I notify

Joseph Raymond, or his agent, to immediately turn over the market to the city of New Orleans, I beg to report as follows: On the morning of the 30th ult., I sent my chief clerk, Mr. Joseph E. Manning, to take charge and collect the revenues of the Second Street Market. He immediately proceeded to notify the several people occupying stalls therein that he was acting as the representative of the city, and that the city would collect the revenues from that date, the 30th of March, 1894. While Mr. Manning was in the act of notifying the different persons occupying stalls therein, the party who has been collecting the revenues (presumably one of the Bilgerys) ordered the occupants of the stalls to pay no one for the present; but, as Mr. Manning was about completing his list of people occupying stalls in the market, he called out to Mr. Manning that he had been mistaken, and that everything was all right now, and that he (Manning) could collect, as he had informed the people occupying stalls to pay him. Mr. Manning thereupon collected said revenues for that day (March 30, 1894), reported the amount to my office, and I had the same deposited with the city treasurer. • There was no opposition made by any one to the collection of revenues on the 31st ult. Commencing the 1st day of April, 1894, I ordered Mr. John T. Carlin, commissary of the Magazine Market, to collect the revenues of the Second Street Market, and report the same to this office, when I will deposit the amount daily with the treasurer," etc. There is also in the record a communication produced by, and offered in evidence on behalf of, the plaintiffs, which reads as follows, to wit: "New Orleans, March 30, 1894. Messrs. Raymond & Bilgery, City-Gentlemen: This is to notify you that the lease, under the contract, of the Second Street Market, has expired, and that, representing the city of New Orleans, I have this day taken possession of the same, and, in the presence and with the assistance of the party who has been collecting the revenues of said market, I have collected the revenues of this day for the benefit of the city of New Orleans; reserving, of course, to the city of New Orleans the right to sue for the balance due her by you under the terms of the contract. Yours, respectfully, [Signed] C. Taylor Gauche, Comr. Police & Pub. Bldgs. J. E. M." And from that date the city remained in undisturbed possession, and heard nothing, so far as this record discloses, of the Bilgerys, until the institution of this sult, in October, 1897. The property has been in the meanwhile operated as a public market, and it is admitted that the city and her lessees have collected from the occupants. during the period from April 1, 1894, to March 28, 1899, a total of $17,430.10, for which amount, with interest, the plaintiffs have obtained judgment.

It is plain that Raymond could have made no contract affecting the property in question to the prejudice of the rights of his

vendor, the Union National Bank, and hence that the adjudicatee, who purchased the property at the sale made for the enforcement of those rights, acquired it free of any incumbrance resulting from Raymond's contract with the city. It was so held in Bank v. Raymond, 29 La. Ann. 355. It is true that, the city consenting, the adjudicatee might have taken Raymond's place, and, accepting the consideration, have become bound for all the obligations of his contract. On the other hand, he was at liberty to ignore Raymond's contract, and make a totally different one for his own account, or make such use of the property as he thought advisable. The evidence fails to show that any agreement whatever was entered into with the city, and makes it reasonably certain that there was none. It also makes it probable, however, that Bilgery, and his widow and heirs, have used the property, since the former acquired possession of it, for the same purposes that Raymond was to have used it under his contract, and that they have enjoyed the privileges and immunities contemplated by that contract; that is to say, that they have enjoyed the franchise of operating a public market upon property which has been exempt from taxation, and with the advantages resulting from municipal ordinances and regulations imposing restrictions upon the keeping of private markets. But this probability is an insufficient basis for a judgment, and, if that which is thus made probable were established as a fact, it would still fall short of making out a case which would justify this court in holding that the title to the real estate in question, legally vested in Bilgery and his heirs, had been devested and transferred to the city.

If it is true that the Bilgerys have exercised a public franchise in the use which they have made of the said property, and have enjoyed exemption from taxation, upon the assumption that they would transfer the property to the city at the expiration of Raymond's contract, they should be held to account for the advantages which they have received, but such an assumption does not authorize a judgment in favor of the city for the property. Upon the other hand, the acquiescence of the plaintiffs in the demand made by the city for possession, and in the possession thus yielded, from May 30, 1894, until the filing of this suit, October 23, 1897, acquits the city of having been a possessor in bad faith during that period. "The possessor in bad faith is he who possesses as master, but who assumes this quality when he well knows that he has no title to the thing, or that his title is vicious or defective." Civ. Code, art. 3452. Raymond's contract provided that at the expiration of the term fixed the city should be put in possession of the property as owner, the language reading as follows, to wit: "At the expiration of which time the market house, and grounds on which it is built, and so

much of the surrounding ground as has been left open for the passage around the market, shall be turned over to the city of New Orleans, and said city shall be put in full possession of ownership of said market." The city, assuming that the contract was still controlled by Raymond, or that the Bilgerys had elected to stand in Raymond's shoes, made its demand for possession, agreeably to this stipulation, and, the possession being yielded without objection, was justified in the belief that it had acquired, and thereafter held, lawfully, so that it cannot be said that it assumed the quality of master knowing that it had no title. The judgment appealed from is therefore erroneous in condemning the city for rents and revenues from May 30, 1894, to October 23, 1897. It is also erroneous in taking as a basis of the amount allowed from and after the latter date (being that upon which the suit was filed) the revenues of the property resulting from its use as a public market, since the plaintiffs are entitled to recover no more than they could have derived from the property itself, apart from the enjoyment of the market franchise.

It is therefore ordered, adjudged, and decreed that, in so far as the judgment appealed from condemns the defendant for rents and revenues of the property in question, the same be annulled, avoided, and reversed, and that as to such rents and revenues for the period between May 30, 1894, and October 23, 1897, the demand of the plaintiffs be rejected, and that as to such revenues since October 23, 1897, said demand be rejected as in case of nonsuit. It is further ordered and adjudged that in so far as said judgment decrees the plaintiffs to be the lawful owners of the property herein claimed, and entitled to possession thereof, the same is hereby affirmed. It is further ordered, adjudged, and decreed that all legal rights of the city with respect to taxes upon the said property since May 18, 1873, and with respect to any claim which it may have arising out of the use made of said property, and of any franchise or privilege in connection therewith, be reserved. It is further ordered that the defendant pay the costs of the lower court, and that the plaintiffs pay the costs of the appeal.

belonging to, or under the control of, such municipal corporations.

2. Whether the obligation sought to be enforced is made sufficiently definite by the contract, or can be made so by the evidence, to be susceptible of enforcement by mandamus, as provided by said act, is a matter to be determined by the court, in each case, as presented.

3. The defendant corporation having bound itself by contract to keep a street upon which it operates its railroad in good order, the city thereafter made a contract with a paving company, to which the defendant was a party, whereby the paving company assumed the same obligation for a limited period; and no call was made during said period on the defendant, but the street was neglected and allowed to fall into a condition of abnormal disorder, requiring an unusual expenditure to put it in good order. Upon the case as presented, it is held that the city should restore the street to a condition of good order, before the defendant can be required to keep it so, though the defendant, in another action, may perhaps be liable to contribute an amount equal to the expenditure which it might have been obliged to make under its contract.

4. The obligation to keep a street in good order necessarily involves repairs, and repairs may involve the use of new material, and this may be called "reconstruction," but it is nevertheless included in the obligation to keep the street in good order.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Fred. D. King, Judge.

Application by the state, on the relation of the city of New Orleans, for a writ of mandamus against the New Orleans & Carrollton Railroad Company. From a judg. ment denying the writ, plaintiff appeals. Modified.

Samuel L Gilmore, City Atty., and Walter B. Sommerville, Asst. City Atty., for appellant. Dart & Kernan, for appellee.

MONROE, J. The relator seeks by mandamus, under Act No. 133 of 1888, to compel the defendant to put in good order and repair, according to the terms of a certain contract, and agreeably to certain specifications, which are annexed to the petition, the lake side of St. Charles avenue, between Louisiana avenue and Dublin street, in the city of New Orleans. The defense is set out at considerable length, and will appear in the statement of the case. The facts disclosed by the evidence and admissions are as follows, to wit: Upon August 7, 1882, the city, by notarial contract, granted to the defendant a right of way for a street railroad for 25 years from February 10, 1883, in consideration whereof the defendant assumed certain obligations, and among them the following, to wit: "To keep in good order and condition at all times

the streets

or roadways bordering on the neutral ground of St. Charles avenue from Lee Circle to Madison street, in Carrollton, from curb to curb; also, including crossings, bridges, culverts, and intersections," etc. At that time the lake side of St. Charles avenue, between Louisiana avenue and Dublin street (being the portion of the avenue which is involved in the present controver

sy), was an unpaved dirt street, and defendant was obliged by its contract merely to keep it in "good order and condition." In 1892 the city, by notarial contract of date October 13th, extended the grant made to the defendant in 1882 for an additional term of 25 years from the expiration of said previous grant, and in consideration of such extension the defendant assumed other obligations, and among them the following, to wit: "To expend not less than $150,000 in the paving, with gravel, of the wood side of St. Charles avenue from Louisiana avenue to Madison street;" the work to be done according to plans and specifications prepared by the city engineer and approved by the city council, and provision being made that any unexpended balance of said $150,000 should be used in the paving of Jackson avenue with asphalt and Belgian blocks. It was also stipulated that all the paving work should be maintained "in thorough order, on the notification and to the satisfaction of the commissioner of public works, during the extended term of the franchise," and that, in the event of defendant's violation or neglect of its obligations, the city should have the right, "at its option, and by its proper officers, of rectifying such violation and neglect at the cost, charge, and expense of said company," etc. Agreeably to this plan, the city in June, 1893, entered into a contract with the Rosetta Gravel Company whereby the latter agreed to do the paving, the payment for which was thus provided for, and also agreed "to keep said street, when completed, in good order and condition for the term of five years from its completion by said contractor and acceptance by the commis sioner of public works and city engineer, and to deliver the same, with the gutters, crossings," etc., "at the expiration of said five years, in perfect good order and condition," etc.; and in the contract so made the defendant intervened, and bound itself to pay, promptly, upon certificates to be issued by the city, for the paving thus to be done, and also bound itself to maintain and keep in repair that part of the avenue covered by said paving contract, "to begin on the date of the expiration of the five years, during which the said Rosetta Gravel, etc., Company, by this contract, is required to keep the street in repair, as provided in the contract between the city of New Orleans and the New Orleans & Carrollton Railroad Company." It is not disputed that the defendant paid the $150,000 for the paving so contracted for by the city, which was done under the latter's direction and supervision; and it is not pretended that during the five years following the laying of said pavement any demand was made upon the defendant with respect to its maintenance, nor does it appear that any such demand was made upon the gravel company; so that shortly be fore the expiration of the five years that portion of the avenue upon which the gravel