|Richard L. S. Marmion Tragedy
September 19, 1873
|corner of 3rd and Denis, location of Richard's Grocery store as it appears today|
|RLSM home at the corner of Liberty and Franklin as it looks today|
|CORONERS REPORT- click to enlarge|
|Before they found out that it was Richard LS Marmion. From The Cincinnati Daily Gazette 9-20-1873|
At right, we found an article about the Yeager murder that the above articles refer to. Becasue this occured in the same block, there were questions by law enforcement.
It was determined that the two tragedies were not linked.
However today we know a bit more, and it seems there is a tiny link, and perhaps this is just a huge coincidence, but Richard's brother Laurence and his son Frank worked as carpenters during this time. This could be because it was a time where most certainly there would have been a great need for carpenters in the city, or it may be that there was a bigger connection, yet to be uncovered between the Yeager incident and Richard's suiside.
|At right, Richards obit. Richard was one of the officers of the Hibernians organizations,
in fact he was a Vice President. There were Hibernian organizations all over the US and Ireland. Richard seems to have been very active in the Hibernians prior to the year 1873. Then suddenly in 1873 his participation noticably dropped off, his name no longer appeared in the paper at Hibernian functions.
Interestingly John L Murray was also an officer of the Hibernians, he would marry Elizabeth Kennedy, Richard's widow 11 years later.
Elizabeth raised her son Richard Edward Marmion on her own until 1884, when
Richard Edward was 11 years old she married Murray, and Elizabeth would have quite a few more children with Murray.
|(No. 13.009.) i (Supreme Court of Louisiana. Jan. 23, 1899.)
PETITORY ACTION TAX TITLE PRESCRIPTION RENTS AND IMPROVEMENTS.
On Motion to Dismiss. When the pleadings of a plaintiff, verified by affidavit, show, aa to the amount in dispute, a prima acie right to yan appeal to the supreme court, the appeal will not be dismissed on a motion in limme, based upon testimony in the record taken on the trial of the cause in the district court. Testimony so taken can only reach the supreme court when the cause goes before it on the merits, at which time the appeal will be dismissed, if the appellate court ia without jurisdiction ratlone matense.
On the Merits.
1. Plaintiff tn a petitory action based hie claim on a complete legal title.
i Rehearing denied June 26, 1809.
2. The defendant has no title at all.
3. The plea of prescription (three /ears) did not give vitality to an adjudication at tax lale which, in law, never had force or effect.
4. The purchaser, knowingly not having complied with his bid, as required by repeated decisions of this court, was not In good faith, and therefore his asserted title was not cured by the prescription of ten years.
6. Plaintiff's claim for rent was not sustained by proof, and was not allowed, and defendant reconventional demand was rejected.
(Syllabus by the Court.)
Appeal from civil district court, parish of Orleans; Frank A. Monroe, Judge.
Action by the heirs of R. L. S. Marmion against Bridget McPeak and others. Judgment for defendants. Plaintiffs appeal. Reversed.
Kernan & Gowland, for appellants. Far- rar, Jones, Kruttschnitt & Gurley, for appellees. J. Zach Spearing, amicus curlae.
On Motion to Dismiss.
NICHOLLS, C. J. The appellants have moved this court to dismiss the appeal filed herein upon the ground that the court Is without jurisdiction to entertain the same ratione materloe, the amount claimed or In dispute being less than $2,000. The action Is a petitory action, brought by the plaintiffs as heirs of their father, Richard L. S. Marmion, In which they seek to have themselves decreed the owners of certain property, described In their petition, together with rent from September 2, 1886, from which time they allege they have been deprived of the use of their property. The value of the property Is alleged to be $1,000, and the value of the rents up to the filing of the petition declared to. be $10 per month. The petition of the plaintiffs Is verified by affidavit of their attorneys, they (the plaintiffs) being absentees. Plaintiffs declare that defendants base their right of ownership and possession upon a tax sale which is illegal and void, and whlch conveyed no title to them, for reasons assigned. They further aver that the defendants failed to comply, as adjudicates, with the terms and conditions of the said tax sale, and that title under the same has never been completed, they not having paid taxes subsequent to the year 1880; that they had permitted the property to be readjudlcated to the state for the taxes of 1880, 1881, and 1883; and that they (the plaintiffs) had been permitted by the state to redeem the property. Counsel of appellees call our attention to the case of Walsh v. Harang, 48 La. Ann. 884, 20 South. 202, stating that by that decision It was decreed that purchasers at tax sales owed fruits and revenues only from judicial demand, and therefore the court should Ignore allegations of plaintiffs' petition asking for rent prior to that time. They further call the court's attention to testimony, taken on the trial of the case, by which plaintiffs' own witnesses fixed the value of the property at $1300, and the rental value at $5 a month, while defendants' witnesses fixed the value of the property at $450, and declared It to have no rental value whatever. Counsel is In error In supposing that this court, In Walsh v. Harang, announced as a rule of law that defendants in petltory action, claiming title to the property In litigation under a tax adjudication made to them,' were only chargeable with rent, or fruits and revenues, from judicial demand. The defendant in that particular case was not the adjudicatee at a tax sale, but a purchaser in good faith from such an adjudicatee, and the court held she was properly chargeable with rent from judicial demand. We have on several occasions noted the difference between appeals dismissed on motion in llmine, and appeals dismissed by the court after the case had been regularly taken up and tried. We think the pleadings of the plaintiffs, verified by affidavit, show a prima facie right to an appeal to the supreme court sufficient to withstand a motion to dismiss made In llmine. We would not, on such a motion, be authorized to take up the testimony introduced on the trial of the cause, and base a dismissal in llmine upon it That testimony can only reach us regularly when the cause comes before us on its merits. Should the testimony in the case disclose at that time that the matter in dispute is' smaller in value than required to vest appellate Jurisdiction in this court, we will at that time dismiss the appeal. We must decline to dismiss it in limine, on the motion made. For the reasons assigned, it is ordered that the motion to dismiss the appeal before the cause is submitted to us on the merits is denied, leaving the question of Jurisdiction to be ascertained and acted upon hereafter.
On the Merits.
(May 15, 1899.)
BREAUX, J. Plaintiffs brought this action to recover two certain lots of ground sold at tax sale (taxes due prior to 1879) for the amount of $4. The adjudicatee at the sale, in addition, was to pay the taxes due the city of New Orleans for the years 1873 to 1879; also rents and revenues on the property are claimed. Plaintiffs acquired by inheritance from their father, R. L. S. Marinion, who died in 1873. Both parties to the suit treat the action as petitory against the defendants In possession of the property more than ten years. Defendants' possession under a tax title dates from September 2, 1886. The grounds upon which the tax title is attacked are: (1) That the assessments were Illegal, having been made in the name of a dead person; (2) that the assessments are grossly erroneous as to description, the name of the streets and the boundaries not having been correctly given; (3) that defendants and their ancestors never compiled with the terms of adjudication necessary to perfect their title. Plaintiffs alleged that
they redeemed the property from the state of Louisiana, and they claim rent. Defendante deny that plaintiffs have title to the property, and plead the prescription of three and ten years, and pray, In event of a Judgment against them, for a judgment In reconvention. There Is an admission of record showing that II. L. S. Marmlon formerly owned the property; that in 1885 the property was sold by the state tax collector, and was adjudicated to the state; that the adjudication of the lots was timely registered in the conveyance office. It appears that on September 2, 1886, the state tax collector offered these lots at public sale under Act No. 82 of 1884, as having been adjudicated to the state. Patrick Kane (ancestor of defendants) became the purchaser, and his title was duly recorded the same day.
Defendants, in the first place, Invoke their possession as a ground to defeat plaintiffs' action. It must be borne in mind, in considering the ground of defense, that plaintiffs have Introduced a complete, valid title In evidence, - one that must be sustained, unless there was a tax sale made of the property which gives a right superior to the right claimed by plaintiffs. It must also be remembered that both plaintiffs and defendants agree that this action Is a petitory action. No attack has been made on plaintiffs' title. Defendants, we apprehend, place too great a reliance on their possession. The rule of practice Is well founded in law and Justice that, In a petitory action, one must recover on the strength of his title, and not on the weakness of his adversary. The question to which civilians have given effect and force is of equal application here: "Qui interrogatus, cur possideat? Respon- surus sit, quia possideo." But does not this question cease to be pertinent when a plaintiff, as in this case, produces a title valid against the world, and under which he should unquestionably recover the property claimed, unless It be made evident that since the date of his title, for good and valid cause, another title was created which Is superior to plaintiff's? In our judgment, the question answers itself in the affirmative. The answer can now no longer be, "Possideo, quia possideo," but the defendants must show, In opposition to plaintiffs' valid title, that they possess the property, not merely as a question of fact, but in addition, that their possession Is a possession under a title. We have not found that defendants have civil possession, or such a possession as give them the right to stand on their right In opposition to the title offered by plaintiffs. The burden of proof, in presence of plaintiffs' title, has shifted. The unassalled title must prevail, unless defendants show a better. In this, we think, the defendants have failed.
In order to uphold their title, defendante have pleaded the prescription of three and ten years, and to sustain the former they depend on the case of Russell ?. Lang, 50 La. Ann. 38, 23 South. 113, Interpreting a statute which decrees the prescription of an action, and citing, In support, Breaux ?. Negrotto, 43 La. Ann. 441, 9 South. 507. We do not take It that, under the terms of the decision cited, all defects, however radical, must be considered cured by the prescription of three years. This court, In the last-cited case supra, said: "After a most careful and serious consideration, we have- deliberately reached the conclusion that the views expressed In Barrow v. Wilson, 39 La. Ann. 410, 2 South. 809, ought to be modified, ?? as to conform to the views expressed In the opinion now under consideration." And that opinion was that there are radical defects, such as In the case before us, that are not cured by the prescription of three years. This has been the view entertained and expressed by this court since that decision was rendered, to which we must adhere. The case of Russell v. Lang, 50 La. Ann. 36, 23 South. 113, Is not an obstruction In the way of our conclusion, as there Is no complete similarity between the two. Moreover, In the last-cited case the court said: "The deed evidencing this title accurately described the property, and Is otherwise sufficient In terms to transfer Its title." Defendants' title must prevail over that of plaintiffs, unless the latter can get rid of It by showing that, as a tax sale, It Is void for Inherent defects, such as want of fulfillment of the requirements of law In the matter of assessment of the property for taxation, or in the proceedings taken for Its sale for nonpayment of taxes.
Let us pass to the next question, Involving the character of the title claimed. We think It was void, and therefore readily difference It from the last case cited, supra. The title was not of a nature to transfer property. The adjudlcatee at tax sale, for reasons apparent from our statement of facts, must be held to have had knowledge that the state could not convey the property In the proceedings In which It was sold, and that the adjudication transferred no title.
Now, as relates to prescription of ten years, also pleaded, there are tax deeds so entirely null as not to be within the reach of prescription of three, or even ten, years. We think that the case before us for consideration is of that number. The prescription of ten years Is based on good faith. In order to determine whether or not the defendant to whom the property was adjudicated at tax sale was or was not In good faith, again a definition may assist us. Good faith consists In the well-settled opinion that the possessor has acquired the property which Is in his possession. Under the repeated decisions of this court regarding tax sales, we are precluded from arriving at that conclusion. Here the title was not apparently good, and of such a character as to Induce the possessor's belief that It was legal. It was absolutely defective on Its face, and the
defendant must be held to bave knowledge of this defect He must be held, under our jurisprudence, to have known of the vicea of his title, and his heirs, who hold under him, must be held to the same knowledge. Euvres de Pothler (Dupln) p. 336. The maxim of the law, "Mellus est non habere tltulum, quam habere vitiosum," is particularly true when, as in this case, the vice amounts to a complete nullity, which cannot serve as a basis for the prescription of ten years.
Plaintiffs' claim for rent: The property was unimproved, a naked lot The preponderance of proof shows that plaintiffs were not entitled to rental.
As relates to defendants reconventional demand, under our views of this case, as before expressed, we do not think that we would be warranted In sustaining that demand.
It Is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, reversed, and avoided, at defendants' and appellees' cost in both courts. It Is further ordered, adjudged, and decreed that plaintiffs have judgment as prayed for. decreeing them to be the owners of the property described In their petition, and annulling all tax deeds and right claimed under the tax deeds and adjudication by defendants. It is ordered, adjudged, and decreed that plaintiffs' claim for rental Is rejected. It Ib lastly ordered, adjudged, and decreed that defendants reconventional demand Is rejected.
BLANCHARD, J., takes no part not having been present at the argument MONROE, J., recused.
(51 La. Ann. 1718)
September 1873, Richard L.S. Marmion, whos youngest son Richard Edward Marmion had been born the week before to new wife Elizabeth Kennedy, shot himself in the neck and fell into the Claiborne Canal, which today is just a very wide street as it intersects Washington, but in that year it was still a canal. Why did Richard who was still a fairly young man found he could no longer go on and choose to end his life in such a manner, we can only guess. Was it a problem with his new marriage to Elizabeth, they had been married just a little over a year, probably not, was it that he still grieved for one of the other wives, Selina who died of the fever or Ellen who died sometime between 1870 and 1872. While I think he loved his wives, and grieved at their deaths, I do not think this would cause this. He lost his Mother in 1870 and he was probably devastated by this, but I do not think this would have driven him to this point in his life. I think the reason that Richard took his own life was because of financial ruin.
1873 was much like today, banks failing all over the world, business going bankrupt. Economically it was a really bad time and even worse there were no safety nets. In that same year his brother James Roger Marmion lost his silver mines in Mexico, the Mexican government confiscating them as they started to become very profitable. In the past James and Richard had Real Estate deals together, and I think it wouldn't be too much of a stretch to believe that Richard also invested in the silver mines. The combination of the banks failing and the mines being taken would have ruined Richard, James was postmaster in San Antonio, and this paid rather well, so while hurt he was not ruined, Richard however had a grocery store to run, and if you can not restock your store, you can not provide your family a living. He had quite a few children by this time, and had been raised to a certain standard of living, he would have, in this era, had an insurance policy, and this policy would have ensured his family's well being if he committed suicide. Insurance and policies were still in their infancy and it would have paid, ensureing his family would survive. So he took his own life, his older children went to live with his sisters at Pass Christian, and Elizabeth and the infant Richard Edward Marmion were able to continue on with the grocery business.
Richard L.S. Marmion was buried at Lafayette #2, which today is in ruines. We have yet to find his grave, and if anyone can help locate him, and photograph his final resting place, we would be grateful. The grocery store, his home the place he killed himself and the cemetery where he was laid to rest were all in walking distance, all in this neighborhood.
|notice that the reporter got Richard LS Marmion's name wrong, but it was indeed Richard.|