41 La. Ann. 1098 | La. | 1889
The opinion of the Court was delivered by
Article 57 of the Constitution provides that “ the heirs to confiscated property may be released of all taxes due thereon at the date of its reversion to them.”
Act No. 10 of 1886 declares : “All taxes, State, parochial and municipal, due on property which may have been confiscated by the United States, shall, at the date of its reversion, he released to the heirs of filie parties who suffered the confiscation.”
The late Duncan F. Kenner was, at the time of the late war between the States, the owner of certain property in this city. The property was libelled and condemned to conñscation, and was adjudicated to L. M. Day, who entered into possession thereof. After the war, Duncan F. Kenner purchased the interest of Day in the property and re-entered into possession. The property was thereafter taxed in the name of Kenner. It was so taxed by the city of New Orleans for the year 1887, and tlie taxes were duly inscribed as liens and mortgages on the property according to law.
Kenner died on July 3d, 1887, and his heirs re-entered into possession of the property.
From this judgment the city appeals. The case involves and requires some nice distinctions.
In the learned commentary of Toullier it is said that the word persona, in its primitive sense, was applied to the masks worn by the actors in the dramatic performances of Rome, and Ureece, which masks were made to represent the character which the actor performed; and he says that, in the same sense, it was subsequently employed in jurisprudence to signify the role or si aim which a man Alls in the social organization. Thus the same man may, at different times, and even at the same time, represent different persons or roles; as, in his youth he presents the person of a minor, and, after his maturity, that of a major, each having different qualities, rights and obligations.
Now', in this ease, we must consider Duncan F. Kenner as representing two distinct persons: one, that of the confiscatee of this property; the other, that of the purchaser from, and assignee of L. M. Day.
As against Kenner, the confiscatee, and as against his heirs, the assessment of this property was, and remains, null, void and of no effect; but as against Kenner, the purchaser and assignee of Day and as against Ms heirs as such, the assessment was and remains perfectly valid and legal.
If Day had retained his title and remained in possession, the heirs of Kenner would, undoubtedly, under the law, take the property free from any taxes which had been assessed against it in the name of Day, and would have been entitled to demand the erasure of all inscriptions importing an incumbrance on the property; but under what law could Day or Day’s heirs have claimed the nullity of the assessments validly made against him, or release from any obligations resulting from such assessment ?
This indicates precisely the rule which must be applied in the solution of the questions here presented.
The plaintiffs take and hold the property solely in their capacity as heirs of Kenner, the confiscatee, and released from all taxes due thereon, and they are entitled to demand the erasure of all inscriptions purporting to encumber the property for such taxes; but they have no right to claim the nullity of the assessment made in the name of Kenner, the
The Act of 3886 was never intended to release the purchaser at a confiscation sale from taxes assessed in bis name against the property during his tenure. As he enjoys the fruits of the property, it is just that he should bear its burdens. As assignee of Day, Kenner stepped into bis shoes, and his rights and obligations are identically the same. The plaintiffs, having accepted his succession, succeed to his obligations whatever they may be.
These views necessitate a change of the judgment, in favor of the city of New Orleans, which is the sole appellant.
Plaintiffs’ demand to have the assessment declared null, void and of no effect must he rejected,; but they are entitled to have the inscriptions thereof as mortgages and privileges erased and cancelled in so far as they affect the confiscated property.
It is, therefore, adjudged and decreed that the judgment appealed from be amended by striking out that portion thereof which decrees the assessments for 1887 to be null, void and of no effect, and that, as thus amended, the same be now affirmed, plaintiffs to pay costs of appeal.
