Basso v. Benker

33 La. Ann. 432 | La. | 1881

The opinion of the Court was delivered by

Levy, J.

Leon Séré, Syndic of the insolvent estate of D. Bouligny, by virtue of a writ of fieri facias issued on a judgment rendered in the suit of Séré, Syndic, vs. L. V. Porche, seized a certain tract of land or plantation in the parish of Point Ooupee, which he claimed as being affected by and subjected to his judgment recognizing his mortgage thereon, and his right to seize and sell the same.

This land was assessed to P. S. Wiltz, and was seized by the tax collector and offered for sale to be sold in payment of taxes due. It was adjudicated to Miguel Basso, on the 5th of December, 1877, and on the same day the tax collector executed an act of sale to the said Basso. On the 30th of December, 1879, the Auditor of the State, executed an act confirming unto said Basso the tax sale.

Basso, the purchaser at tax sale, and the possessor of the property seized, enjoined the seizure under the fieri facias. In his petition he averred and claimed that, he was the true owner of the property, denied, that Séré, Syndic, was a mortgage creditor, averring that if he ever had any claim or mortgage bearing on said property, the same is perempted and barred by the prescription of ten years, not having been reinscribed; denied that the seizure was valid and legal; prayed for an injunction restraining further proceedings under the seizure; that the injunction be perpetuated, the seizure declared null and void, and the property decreed not to be liable to seizure in said suit of Séré, Syndic, vs. Porche, and for damages against the defendants in injunction to the amount of $400. The injunction prayed for was granted.

Defendants, in their answer, allege that the tax collector’s act of sale and the Auditor’s confirmation are null and void, and the plaintiff has no right or title to the property under or by virtue of these acts, because Séré, Syndic, being a creditor of Wiltz, (who is described in the acts as the owner) duly claimed the right to redeem the said property within" two years from the date of the sale, and did tender and offer to said Basso, the purchaser at said sale, personally, the full amount of the purchase money and all taxes paid by said Basso, on said property, between the date of his said sale and the date of the tender and offer, and did all that was required by law, to effect such redemption, but that said Basso, wrongfully and improperly refused said offers of redemption and denied the claim and right of said Seré to redeem, alleging as his reason, that the mortgage in favor of Bouligny had not been reinscribed; that Basso concealed said offers of redemption from the Auditor, and his (Basso’s) illegal refusal thereof illegally and without right procured the said confirmation from the Auditor. They prayed for damages for attorney’s fees incurred, and for the wrongful issuance of the injunction, for rejection of plaintiff’s demands and dissolution of the injunction.

There was judgment in favor of plaintiff, decreeing the seizure enjoined to be null and void; that the property be restored to the possession of Basso, plaintiff, perpetuating the injunction and awarding $250 damages to plaintiff. Defendants have appealed.

The pleadings of both parties hereto have distinctly put at issue the ownership of this property. The plaintiff, appellee, enjoins its seizure on the ground that it is his, and sets up and offers in evidence his muniments of' title. Defendants, appellants, assert the ownership to be in Wiltz, and that the property is subject to Séré, Syndic’s judgment and mortgage; deny the validity of the title claimed by plaintiff as derived from the tax sale and its confirmation, and allege that the right of redemption to which Séré, Syndic, as creditor of Wiltz, was entitled, has been seasonably availed of by Séré by a tender and offer to Basso, the purchaser at tax sale, of the amount paid by him, interest, costs and taxes between the sale and tender. Plaintiff alleges that the mortgage in favor of Bouligny sought to be enforced on the property is barred by the prescription of ten years, not having been reinscribed within ten years after its inscription.

The real question for our decision is that of ownership. 12 An. 181. “ Where the plaintiff in injunction seeks to restrain the execution of a judgment, on the ground that the property seized does not belong to the judgment debtor, but to the plaintiff in injunction, no other issue can be made but that of ownership.”

We will first consider whether the tender made within the delay fixed by law and of the proper amount, even though refused by the purchaser at a tax sale, is sufficient to defeat the perfection of the tax sale title, and the tender thus made operates to entitle the owner or creditor to perfect the redemption after the lapse of the time.

We think the right of redemption is not confined to a mortgage creditor; a simple judgment creditor has the' right. Séré, Syndic, is shown by the record to be a judgment creditor. The question of prescription of his mortgage claim is not-absolutely necessary to fie passed upon here, and we do not do so, although the authorities incline strongly to the establishment of the principle, that the description of a mortgage and recital of the property itself in'an act of assumption, duly inscribed, as also such description and recital in a duly registered judgment recognizing such mortgage, operates as a reinscription of the mortgage act itself. 5 An. 675; 24 An. 524; 14 La. 214. We do not however decide that question herein.

In Montgomery & Delony vs. Burton, 31 An. 330, the Court said: “ The tender having been improperly refused, of course it was for all the purposes of the defendant’s rights, just as if it had been accepted, and the only question remaining for our conclusion, is the consequence of the tender upon the rights of the parties. Whether a tax title is inchoate or not, until the delay for redemption, need not, as we have said, be now examined, because whatever may be the law upon that subject, there can be no doubt that the right of redemption sprang into being from the very fact of the sale, and became attached to it as a dissolving condition. This being the case, every obstacle, if any existed, to the execution of the mortgage was removed, and as the evidence of the tender, after the seizure, was received without objection, we consider that at least from that date the seizure was valid.”

We cannot recognize the ownership of the plaintiff in the property seized, because the tender and offer to redeem, made in time, prevents the perfection of the inchoate title derived from the tax sale, and regarding this tender as entitling the creditor to redemption of the property on payment of the amount due the purchaser, which, when this is made, he has the right to insist upon and enforce the dissolving condition of the tax sale, and, therefore, the title to and ownership of the property seized cannot be recognized by us as in the plaintiff in injunction. At the same time, as no tender appears to have -been made in the court below, in the proceedings in the injunction suit, the plaintiff in injunction is entitled to reimbursement of the purchase price, costs, and taxes paid and interest on his payment of taxes; and we feel called upon to render such decree as will do justice and accord equity to all parties. As to the mortgage claims of the defendants, we do not pass upon them, so as to preclude any parties in interest from contesting them under a plea of prescription or other plea, but reserve to all interested any defenses to which they may be legally entitled in opposing or contesting the legality or validity of the seizure or the claim, under which it is made.

It is, therefore, ordered adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by the OoUrt below, it is ordered adjudged and decreed that the injunction issued in this case be dissolved, and that on payment to the plaintiff, Miguel Basso, by the seizing creditor of the amount of the purchase money of the tax sale, interest as allowed by law, and taxes which have been paid by him on the property seized, viz: the amount due at the date of tender November 20th, 1877, being the sum of two hundred and twelve and 50-100 dollars, the writ enjoined be proceeded with according to law, and that plaintiff’s (Miguel Basso) demand to be recognized as owner of said property by virtue of his alleged title under the tax sale, be rejected. Appellee to pay.the costs of both Courts.

Rehearing refused.