rendered the opinion and decree of the Court, as follows;

Plaintiff, wbo seeks in this proceeding to confirm bis tax title, appeals from a judgment in favor of the defendant, the tax debtor, sustaining the latter’s assault upon and annulling the tax sale upon which plaintiff’s title, is based.

Defendant urges many grounds for annulling the tax sale, but one only need be noticed, namely; that no notice *158of delinquency and intended sale was served as required by law.

Tbe only proof submitted by plaintiff of tbe service of sucb notice, is the declaration to tbat effect contained in tbe tax deed itself.. The officer whose duty it was to make tbe service did not testify, nor was bis return, if any existed, put in evidence. On tbe other band, defendant as a witness denies tbat any notice was served upon or. received by him.

Under sucb circumstances we must conclude tbat the Law as to this notice was not observed, for tbe unsupported presumption arising from the declaration of tbe tax deed must yield to the positive denial of tbe tax debtor.

In re. Nylka Land Company, etc., 8 Court of Appeals, 151.

The prescription embodied in Article 233 of tbe Constitution of 1898, affords no protection to plaintiff.

■ Defendant acquired title and physical possession of tbe property in’1883 and still retained same at the time of tbe tax sale in 1900. Shortly thereafter be delivered possession to two parties to whom be bad agreed to sell tbe property, and be permitted them to continue in possession even after they bad rejected tbe title and bad declined to carry out their promise of purchase.

While thus in possession they secured a, written permit from plaintiff to occupy tbe premises. This was done without tbe knowledge or consent of defendant, who, as soon, apparently, ás be was apprised thereof, demanded and secured of them a return of tbe property, the physical possession of which be has since retained.

Upon these facts it is clear tbat, notwithstanding the secret permit issued by plaintiff, defendant legally pre*159served-in himself the actual, physical possession of the property from the date of the tax adjudication to the present time.

R. C. C., 3446.

And such being the case, it follows that plaintiff is without right to invoke the prescription embodied in Article 233 of the Constitution of 1898, which has no application to a ease where the tax-debtor, after 'the adjudication, continues in actual possession of the property.

Carey vs. Cagney, 109 La., 83.

There is no error in the judgment and it is accordingly affirmed..

Judgment affirmed.

On Application for. Rehearing;

The appellant complains that the Court has failed to provide that its judgment shall not be effective until he, .as holder of the tax title, be reimbursed the price paid with penalties and taxes.

No such reservation was necessary. Article 233 of the . Constitution of 1913, is self operative. The appellee cannot execute the judgment until he pays or tenders to the . appellant the amount due him under the Article.

*160'.'It is. unnecessary therefore to amend our decree.

Rehearing refused.