Argument for Appellee. the citation ran only to Clark N. Hall. The cause was duly docketed here, and when reached in its order on the docket, was submitted by the counsel for the appellant. On the 16th of December, leave was granted to make the representative of Charles F. Hall, (who had meanwhile died,) a party, with the right to file briefs on or before the first Monday in January then next. On the 9th of January, 1890, the counsel for the administratrix of Clark N. Hall appeared solely for the purpose of pleading to the jurisdiction, and represented that there had never been an appeal taken from the order dismissing the bill as to him. On the 18th of January, a citation issued to Charles F. Hall, or, if deceased, to his representatives, to appear on the 4th Monday of March then next, to show cause why the decree rendered against the appellant should not be corrected. This was served on his administratrix, and return thereof made into court. An appearance was entered for Charles F. Hall, and a brief filed.] Mr. John Johns and Mr. D. A. McKnight for appellant. Mr. John T. Ludeling, for the administratrix of Clark N. Hall, appeared solely for the purpose of questioning the jurisdiction of the court; and, as counsel for Charles F. Hall, appellee, submitted on his brief. I. Charles F. Hall, though in possession, was not a necessary party. In Louisiana a third possessor is not a necessary party, in a suit against the maker of mortgage notes, to obtain judgment against him. Code of Practice, Arts. 63, 68. II. The sheriff's deed to Charles F. Hall for the land sold at a tax sale is perfect in form and on its face valid. Article 210 of the constitution declares that "all deeds of sale made, or that may be made, by the collector of taxes, shall be received by the courts in evidence as prima facie valid sales." The same article of the constitution declares, that "no sale of property for taxes shall be annulled for any informality in the proceedings until the price paid, with ten per cent interest, be tendered to the purchaser." Argument for Appellee. In accordance with the provisions of the Civil Code, the Supreme Court of Louisiana, in a long line of decisions, has held that it was a prerequisite to the institution of a suit to rescind a sale, that the purchaser should be paid the price given by him, or he should be tendered the price. Art. 1906 of the Civil Code declares: "The effects of being put in default are not only that in contracts to give the thing, which is the object of the stipulation, is at the risk of the person in default; but in the cases hereinafter provided for, is a prerequisite to the recovery of damages and of profits and fruits, or to the rescission of the contract." A review of the decisions on this point was made in the case of Lola Blanton v. Ludeling et al., in 30 La. Ann. 1232. A peremptory exception was filed to this suit, as in this case, that no offer or tender had been made to defendant of the amount paid by him at the tax sales at which it was alleged, in the petition, he acquired title, and which sums were applied to the payments of taxes and costs due. The court said: "We prefer to place our decision upon the exception alone, which is no longer an open question." In Miller v. Montagne and Husband, 32 La. Ann. 1290, the Supreme Court said: "Proceeding to consider what judg ment should have been rendered, we admit the general principle, that a party seeking to annul a tax title, prima facie valid, must first tender to the purchaser reimbursement of the sums paid by him in discharge of his bid, and which enured to the benefit of the attacking party, and this principle would, perhaps, extend to proper taxes on the property paid by the purchaser while in possession." Blanton v. Ludeling, supra, and Barrow v. Lapine, 30 La. Ann. 310. In the last-mentioned case it is further said: "And if this want of tender is pleaded in limine, and the amount is apparent or made to ap pear, plaintiff should not be allowed to sue until it is tendered." In this case, the complainant has never offered to return the price paid by Charles F. Hall, nor has he alleged that he had done so, or was willing to do so. He had the right, under the law, to redeem the land within a year after the sale. This suit was filed within the year succeeding the sale. . Opinion of the Court. It is respectfully submitted that the record, as well as the admission made in appellant's brief already referred to, show that there has been no appeal taken as to Charles F. Hall, and that the judgment in his favor has become res judicata by the expiration of the time within which an appeal might have been taken, and that this court is without jurisdiction over the case as to Charles F. Hall. But, if this be not correct, then it is submitted that the evidence in this record shows that at a public sale for taxes Charles F. Hall bought the lands mortgaged and paid the taxes then due and the costs and penalties, and that he has been in the actual possession of said lands and paid the taxes thereon since January, 1883, the date of the sale. The title is prima facie valid. Constitution, Art. 210. MR. JUSTICE HARLAN, after stating the facts as above reported, delivered the opinion of the court. It is suggested that no appeal has been taken as to Charles F. Hall, and that this court is without jurisdiction over the cause as to him. In this view we do not concur. The cause was not finally disposed of as to Clark N. Hall, the remaining defendant, until the 14th of April, 1886, and on the 30th day of the same month the plaintiff was allowed an appeal "in the cause." His appeal bond was executed September 9, 1886, and ran "to the defendants." The record was filed here on the 12th of October, 1886. It appearing, when the case was reached on our docket, that Charles F. Hall had not been served with notice of the appeal, a citation was directed to be served upon him, or, if he was dead, upon his representative. The citation was executed January 13, 1890, upon his widow, who is also administratrix of his estate. There is no ground to question the jurisdiction of this court to proceed to a hearing of the appeal. The record was filed in this court on the day to which the appeal was returnable. Our jurisdiction did not depend upon a citation being issued, Evans v. State Bank, ante, 330, although we could not properly proceed to hear the case until Charles F. Hall, as to whom the suit was dismissed' Opinion of the Court. in 1885, or his representative, was brought into court by citation. Rev. Civil Code La. Articles 1041, 1049, 1155; McCaiop v. Fluker's Heirs, 12 La. Ann. 345. And the appeal brings before us not only the final decree of 1886, but that of 1885 sustaining the demurrer and plea of Charles F. Hall, and dismissing the suit as to him. It was not necessary to take an appeal from the latter order until after the whole case was determined in the court below. For these reasons the objections to our jurisdiction are overruled. The first question, upon the merits, to be considered, relates to the demurrer and plea of Charles F. Hall. It is contended that he was not a necessary party to the suit to fix the amount of the indebtedness of Clark N. Hall, and that the demurrer, for that reason, was properly sustained. If that had been the sole object of the suit the plaintiff could undoubtedly have proceeded at law against Clark N. Hall alone. But such a suit would not have given the relief required. The plaintiff claimed a lien on the mortgaged property to secure the payment of the notes given by the mortgagor. The property was claimed by Charles F. Hall in virtue of a tax sale. While the latter might have been proceeded against alone for the purpose of determining whether his right to the land was not subordinate to the mortgage lien, it was competent, under the practice in equity prevailing in the courts of the United States, and in order that full and adequate relief might be had, to unite in the same suit both the mortgagor and the party claiming the property adversely to the lien of the mortgage, by virtue of proceedings had subsequently to its execution. If the plaintiff was entitled to have the property sold in satisfaction of the debt secured by the mortgage, it was his right to have it sold freed from any apparent claim thereon wrongly asserted by the holder of the tax title. Such relief could not be had without making the latter a party to the suit. In respect to the plea of Charles F. Hall, we are of opinion that it ought not to have been sustained. The constitutional provisions that "all deeds of sale made, or that may be made, by the collector of taxes, shall be received by the courts in evidence as prima facie valid sales," and that " no sale of prop Opinion of the Court. erty for taxes shall be annulled for any informality in the proceedings until the price paid, with ten per cent interest, be tendered to the purchaser," have no application to cases like the present one. If Clark N. Hall had attempted to have the tax sale set aside for mere informality, it would have been a good plea in bar to any suit by him against the purchaser, that he had not tendered the amount paid by him, with interest thereon -the plea showing distinctly the amount so paid. Barrow v. Lapene, 30 La. Ann. 310; Blanton v. Ludeling, 30 La. Ann. 1232. It is to suits of that character that the authorities cited apply. The case before us is altogether different. It proceeds upon the ground that a mortgagor who had agreed " not to sell, mortgage or in anywise encumber the property," to the prej udice of the mortgage, had fraudulently combined with his brother to defeat the mortgage lien by means of a sale for taxes due from the mortgagor, at which sale the brother was to bid in the property, in his own name, and for the protection of the mortgagor, assert his absolute ownership of it. It cer tainly was not intended that the mortgagee, in order to maintain a suit to enforce his lien, should tender to the mortgagor, or to his agent, the amount of the taxes, with interest thereon, the non-payment of which by the mortgagor had caused the sale to the prejudice of the mortgagee. The case, in many respects, is like Austin v. Citizens' Bank and Sheriff, 30 La. Ann. 689, in which it appeared that a mortgage creditor proceeded directly against the mortgaged property which had been sold for taxes, and the title taken in the name of a third person. The holder of the tax title brought a suit to enjoin such proceeding. The court said: "The plaintiff [the holder of tax title] entrenches himself behind our ruling in Lannes v. Workingmen's Bank, 29 La. Ann. 112, and insists that his title must be held good until it is annulled in a direct action. But that principle holds good only as to those titles that are bona fide, and are acquired without fraud, or that are real and not simulated. Unquestionably a purchaser at a tax sale may acquire a good title to a valuable property for a small price, if the requisite formalities have preceded and attended the sale. But no government will |