Viator, 33 La. Ann. 1162; Millaudon v. | Quaker Realty Co. v. Citizens' Bank, 131 Gallagher, 104 La. 713, 29 So. 307; George La. 845, 60 So. 367; Quaker Realty Co. v. Purcell, 131 La. 496, 59 So. 915.

v. Cole, 109 La. 833, 33 So. 784; Re Sheehy,
119 La. 608, 44 So. 315; Cordill v. Quaker
Realty Co. 130 La. 939, 58 So. 819.
The death of a person one hundred years sumed. It must be clearly shown.
old is always presumed.

The death of an absentee who was less than one hundred years old is never pre

Martinez v. Vives's Succession, 32 La. | Ann. 305; Rachel v. Jones, 34 La. Ann. 110; Babin v. Phillipson, 3 La. 376. Mr. William Winans Wall, for appellee:

In a suit for specific performance of a contract of sale of real estate, the defendant will be compelled to accept a title where the court is satisfied that such title is safe from successful judicial attack.

Pattison v. Maloney, 38 La. Ann. 885; Johnson v. Carrere, 45 La. Ann. 847, 13 So. 195; Meibaum v. Brennan, 49 La. Ann. 580, 21 So. 853; Westerfield v. Cohen, 130 La. 538, 58 So. 175.

For the purposes of prescription, vacant successions now represent, as they did, under the Code of 1808 and under the Roman law, the person of the deceased.

Davis v. Elkins, 9 La. 147; Poultney v. Cecil, 8 La. 342; McCullough v. Minor, 2 La. Ann. 468; Cordill v. Quaker Realty Co. 130 La. 933, 58 So. 819.

Plaintiff has had actual possession of the property for more than ten years, and its title would be placed beyond successful attack by the prescription of ten years, acquirendi causa, and the constitutional prescription of three years, under art. 233 of the Constitution of 1898.

Ashley Co. v. Bradford, 109 La. 641, 33 So. 634; Canter v. Williams, 107 La. 77, 31 So. 627; Re Lockhart, 109 La. 740, 33 So. 753; Simoneaux v. White Castle Lumber & Shingle Co. 112 La. 221, 36 So. 328; Slattery v. Kellum, 114 La. 282, 38 So. 170; Crillen v. New Orleans Terminal Co. 117 La. 349, 41 So. 645; Shelly v. Friedrichs, 117 La. 679, 42 So. 218; Terry v. Heisen, 115 La. 1076, 40 So. 461; Levy v. Gause, 112 La. 789, 36 So. 684; Lavedan v. Choppin, 119 La. 1056, 44 So. 886; Citizens' Bank v. Marr, 120 La. 236, 45 So. 115; Little River Lumber Co. v. Thompson, 118 La. 284, 42 So. 938; Prater v. Craighead, 118 La. 627, 43 So. 258; Harris v. Natalbany Lumber Co. 119 La. 978, 44 So. 806; Woodfolk v. Witkowski, 120 La. 489, 45 So. 401; New Orleans Land Co. v. National Realty Co. 121 La. 196, 46 So. 208; Doyle v. Negrotto, 124 La. 100, 49 So. 992; Holland v. Southern States Land & Timber Co. 124 La. 406, 50 So. 436; Weber v. Martinez, 125 La. 663, 51 So. 679; Re Quaker Realty Co. 127 La. 208, 53 So. 526; Re Perrault, 128 La. 453, 54 So. 939; Norgress v. E. B. & S. P. Schwing, 128 La. 1040, 55 So. 667;

Martinez v. Vives's Succession, 32 La. Ann. 305.

Sommerville, J., delivered the opinion of the court:

Plaintiff sues defendant to compel him to accept title to property located in the city of New Orleans, which defendant agreed to buy, and to which he refuses to accept the title tendered. Defendant appeals from an adverse judgment.

The property in controversy appears to have belonged to Victor Defoux at one time, who sold it to A. De Rosa May 4, 1837. It appears to have been assessed in the name of Defoux after the sale to De Rosa, and it was forfeited to the state under said assessments for the taxes of years 1871 to 1877, inclusive; and it was adjudicated to the state in 1885 for the taxes of 1882. The title of the state passed, in 1894, to plaintiff's author in title, and by mesne conveyances to the plaintiff in this suit, in 1904; and plaintiff and its authors have had possession of the property since 1894.

The defendant filed an answer, in which there are many defenses, alleging that the property had not been properly assessed in the name of De Rosa; that it was assessed in the name of Defoux, and illegally forfeited and sold to the state under those assessments; that De Rosa disappeared more than thirty years before the assessments were made, for which the property was forfeited and sold; that the presumption is and was that De Rosa died prior to 1871; that his succession was vacant, and the property thereof belonged to the state of Louisiana; that prescription does not run against the state, and if De Rosa were to return and demand the property, or, being dead, his heirs should demand the property from the state, that their rights would be prescribed by thirty years; that, if the court should declare the De Rosa succession not to be a vacant possession, then that the property had been abandoned, and had been, therefore, the property of the state prior to the time that the state acquired title by the forfeitures and sale to it; that if the property was in private ownership, at the time that the state took title for unpaid taxes, said forfeitures and tax sales are null, void, and of no effect, because the property was not assessed in the name of the real owner, and no notice of seizure was given to the owner of the property; and

that plaintiff's title is therefore not good, will not make a will before he dies, or beand valid, and that he is justified in re- fore the time when he may be presumed to fusing to accept the title tendered. be dead.

The defenses are numerous and contradictory; they destroy one another.

ment.

(1) The abandonment suggested by defendant would have to be in writing; and there is no allegation of the existence of any such document. The other allegations in the answer destroy the defense of abandonThe abandonment referred to in article 3548, Civil Code, applies only to movables, and not to immovables. Hereford v. Police Jury, 4 La. Ann. 172. (2) Defendant says: "Both plaintiff and defendant assume that A. De Rosa is dead, and this court must do likewise, for the reason that De Rosa purchased the property in 1837, when he must have been at least twenty-one years of age, and, if living to-day, would be ninety-eight years old. The death of a person one-hundred years old is always presumed."

These things we cannot do. The presumption is, in absence of any proof, that De Rosa is alive; and that he was the owner of the property at the date of the forfeitures and sale to the state of Louisiana for delinquent taxes on his property. He having been the owner at those dates, he, and one claiming through him, cannot be beard to attack the validity of the assessments or forfeitures or sale of his property for delinquent taxes.

If De Rosa or his heirs should reappear, they will be confronted with plaintiff's title, the forfeitures for taxes, and the adjudication of 1885, as muniments of title, and of plaintiff's actual possession of the property since 1894, supported by the prescription of ten years.

The prescription of three and ten years have rendered plaintiff's title immune from

The assumption of plaintiff and defend-attack. ant that De Rosa is dead is not borne out

by any evidence whatever. They assume
that he was twenty-one years of age in
1837, when he bought the property in dis-
pute, and that he would now be ninety-eight
years old.
But he would not be one hundred
years old; and, in the language of counsel,
"the death of a person one hundred years
old is always presumed." But, until it is
shown that an absentee is one hundred
years old, his death will not be presumed;
and, as one hundred years are not shown to
have elapsed since De Rosa was born, the
law does not presume him to be dead. "An
absentee is presumed to live until the con-
trary is proved; otherwise the absence must
be such that the life of a man, who may
live one hundred years, should be presumed
to have ended. 1 Ferriere, 13, Verbo Ab-
These principles are drawn |
from the Roman Law." Hayes v. Berwick, 2
Mart. (La.) 138, 5 Am. Dec. 727; Owens
v. Mitchell, 5 Mart. N. S. 667; Babin v.
Phillipon, 3 La. 374; Martinez v. Vives's
Succession, 32 La. Ann. 305.

sens.

Defendant does not attempt to fix the date of the birth of De Rosa; yet he asks the court to assume the latter to be dead. He asks that we assume further that De Rosa did not part with title to the property after he acquired it; that he died intestate, and without heirs, leaving the property in dispute; that there was a succession, or that there is to be one in 1916; that said succession was, or is to be, irregular or vacant; or that the property was abandoned; further that the state became the owner when De Rosa died, or that it will become owner in 1916, when De Rosa may be presumed to be dead; and that De Rosa

Defendant says that he relies upon the decision of this court in the case of Cordill v. Quaker Realty Co. 130 La. 933, 58 So. 819. But in that case a succession was under administration, whereas in this case there is no succession. Besides, the facts in that case, and the law applicable thereto, have no place whatever in this case. Judgment affirmed.

LOUISIANA SUPREME COURT.

JOHN S. SUTTON, Appt.,

V.

DUNCAN BUIE et al.

(— La.

Injunction

money

against waste of public - right of taxpayer.

A citizen and taxpayer of a state has no standing as such to contest the expenditure of funds under an alleged unconstitutional statute.

PPEAL by plaintiff from a judgment | U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep.

A of the Judicial District Court for the 240; Pennoyer V. McConnaughy, 140 U. S.

Parish of East Baton Rouge, in defendants' 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; favor in a suit to enjoin an investigating commission from doing its work at the expense of the state treasury. Affirmed. The facts are stated in the opinion. Messrs. Walter Elder and Gilbert L. Dupre, for appellant:

In Lucas v. American-Hawaiian Engineering & Constr. Co. 16 Haw. 80, a citizen and taxpayer enjoined the superintendent of public works of the territory from signing materials furnished under a contract with or approving any vouchers for work done or the engineering company, and enjoined the rants for payments for work or labor done auditor of the territory from issuing waror materials furnished under said contract, and enjoined the engineering company from receiving any money under such contract, In Crawford v. Gilchrist, 64 Fla. 41, 59 the contract being illegal on the ground

The money being in the treasury, and in the possession and under the control of the state, the state alone has a right and interest to be heard, and must be made a party, which cannot be done without its consent.

Mr. Daniel Wendling, with Mr. R. G. | Agri. College, 221 U. S. 636, 642, 55 L. ed. Pleasant, Attorney General, for appellees: 890, 894, 35 L.R.A. (N.S.) 243, 31 Sup. Ct. Rep. 654; Louisiana v. McAddo, 234 U. S. 627, 58 L. ed. 1506, 34 Sup. Ct. Rep. 938; Minnesota v. Hitchcock, 185 U. S. 373, 387, 46 L. ed. 954, 962, 22 Sup. Ct. Rep. 650; Kansas v. United States, 204 U. S. 331, 333, 51 L. ed. 510, 511, 27 Sup. Ct. Rep. 388; Lord & P. Chemical Co. v. Board of Agriculture, 111 N. C. 135, 15 S. E. 1032; Tate v. Salmon, 79 Ky. 540.

Louisiana v. Jumel, 107 U. S. 711, 27 L. ed. 448, 2 Sup. Ct. Rep. 128; Louisiana ex rel. New York Guaranty & I. Co. v. Steele, 134 U. S. 230, 33 L. ed. 891, 10 Sup. Ct. Rep. 511; State ex rel. Hart v. Burke, 33 La. Ann. 498; Board of Public Works v. Gannt, 76 Va. 455; Butler v. Ellerbe, 44 S. C. 256, 22 S. E. 425; Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140, 20 Sup. Ct. Rep. 919; Hopkins v. Clemson that the plans and specifications were too indefinite to be the basis for competitive bids. The court stated that the right of a taxpayer to bring suit to restrain a public officer from doing an illegal act had been settled in that jurisdiction since the case of Castle v. Kapena, 5 Haw. 27.

In Castle v. Kapena, supra, the court seemed to be of the opinion that at the suit of a citizen and taxpayer of the kingdom of Hawaii, an injunction might lie against the minister of finance preventing him from selling bonds at less than the statutory figure at which he was authorized to sell them; the court below had granted a mandamus, and the writ was discharged apparently on the ground that this was not the proper remedy. The defendant, however, denied that he intended to sell the bonds at less than the authorized rate.

-Illinois.

In Littler v. Jayne, 124 Ill. 123, 16 N. E. 374, it was held that a taxpayer suing for himself and for all other taxpayers of the state was entitled to an injunction restraining the state house commissioners from making, signing, or approving vouchers for any expense incurred under a certain contract for the making of statutes for the state house, and from using any portion of the money appropriated for the completion of the state house, for the purpose of procuring or placing such statutes in said building, on the ground that the contract was not publicly let in compliance with the statute, but let contrary to its provisions; and the fact that the vouchers required the approval of the governor did not prevent the relief.

In Burke v. Snively, 208 Ill. 328, 70 N. E. 327, the court sustained the right of a citizen and taxpayer to sue the commissioners of a certain canal, the auditor of public accounts of the state, and the treasurer of the state, to restrain the auditor from draw ing his warrant in favor of the commissioners for certain sums of money appropriated by an act of the legislature for the maintenance and protection of the canal, and

No one can question the constitutionality of a law unless he has an interest in the matter and shows some injury that will result to him by the enforcement thereof.

Reid v. Eatonton, 80 Ga. 755, 6 S. E. 602; Gibbs v. Green, 54 Miss. 592; Mason v. Rollins, 2 Biss. 99, Fed. Cas. No. 9,252; for the necessary and extraordinary expenses thereof, and to enjoin the treasurer from paying any money out of the public funds of the state on any such warrant, should one be or have been drawn, on the ground that the legislature had no power to make any appropriations for the canal under the provisions of the state Constitution.

-Indiana.

N. E. 1, the court sustained an action In Ellingham v. Dye, 178 Ind. 336, 99 brought by a voter and taxpayer suing for himself as a citizen, elector, and taxpayer, to enjoin the secretary of state of the state of Indiana and certain other persons, the governor being one, constituting the board of election commissioners, from the performance of their ministerial duties in submitting to the people of the state a proposed new Constitution, on the ground that the

legislature had no power thus to propose a new Constitution. The court stated that the fact that only a small proportionate part of the cost of the election would fall upon the appellee as a taxpayer was not of itself sufficient to destroy his competency

to sue.

-Maryland.

In Christmas v. Warfield, 105 Md. 536, 66 Atl. 491, it was held that the plaintiff, who was a resident and taxpayer of the state, had such a special interest in the subject-matter as to entitle him to maintain a suit to restrain the unauthorized destruction of valuable state property, or the unwarranted expenditure of the funds of the state by the defendants, who, assuming to act as the state tobacco warehouse building commission under an act of the legislature pronounced unconstitutional by the court, proposed to tear down certain warehouses belonging to the state and build a new warehouse.

-Oregon.

There seems to be but a single case in Oregon where the payment of state funds

Provosty, J., delivered the opinion of the solely in his quality of a citizen and tax