154 So. 632 | La. | 1934
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *638 The following described property was assessed to Resaire Laborde on the tax rolls of Avoyelles parish for the year 1927, to wit:
"25 acres. N. — Jas. Chenevert, S. — Martin Laborde, E. — Mrs. Ludovic Lemoine, W. — Remi Laborde, from Eugene Scallan."
On May 19, 1928, the same property was sold at tax sale by the tax collector to the defendant, Noah J. Scallan, for the taxes of *639 1927. On May 23, 1928, the tax collector made out and signed a tax deed in conformity with the adjudication, which deed was delivered to the tax purchaser and duly registered on the same day in the conveyance records of the parish.
Several years prior to the tax sale, Rosaire Laborde mortgaged the following described land to the Federal Land Bank, the plaintiff:
"30 arpents (25.40 acres) of land and improvements situated near Mansura, in the Parish of Avoyelles, Louisiana, and bounded on the north by lands of Joseph Chenevert, South by Lands of Martin Laborde, East by lands of Mrs. Lucovic Lemoine, and West by lands of Remi Laborde; being part of Section 68, T 1 N, R 4 E, in the Southwestern district of Louisiana. From Eugene Scallan on the 13th day of March 1922. See A-26, p. 217, A-4, p. 229; A-1, p. 702."
This mortgage was in force and effect when the tax sale took place in May 1928.
On March 6, 1931, less than three years from the date of the sale, the plaintiff, mortgage creditor of Laborde, brought the present suit against Scallan, the tax purchaser, to have the sale set aside on the alleged ground that the sale was null and void for the following reasons:
(1) Want of notice to the tax debtor.
(2) That the description under which the property was sold was so vague and indefinite that the property could not be identified.
(3) That no notice of the contemplated sale was given the mortgage creditors.
*640(4) That the taxes for 1927 were paid prior to the sale.
(5) That the deed executed by the tax collector is not in the form required by law, and "is not evidence of any of the acts of the sheriff."
(6) That the property was not advertised for sale as required by law.
(7) That the tax collector failed to send notice by registered mail to the tax debtor, and, conceding that he did, he failed to make and keep a procès verbal thereof as required by law.
(8) That the tax collector failed to offer for sale the least portion of the property which any one would purchase.
(9) That the tax debtor "was permitted to remain and live on said property after the so-called and pretended tax adjudication and sale."
The defendant, in answer, denied generally and specifically the allegations of plaintiff's petition. There was judgment rejecting plaintiff's demands, from which it appealed.
The tax deed is in the record, and from it we quote the following pertinent passages:
"I, C.P. Couvillion, sheriff and tax collector of the Parish of Avoyelles * * * in pursuance of the requirements of Act
"At which sale, Noah Scallan, being the last bidder for the least quantity of land, became the purchaser of the following described property, to wit: [Same description.]"
Then follows a recital that the purchaser paid in cash the full amount of the taxes due, as well as all interest, costs, penalties, etc., and the instrument goes on as follows:
"Now therefore, in consideration of the said amount and the premises and by virtue of the authority vested in me by law I * * * sheriff and tax collector do * * * bargain, sell, assign and deliver the aforesaid property unto the said Noah Scallan," etc.
Section 11, art. 10, Constitution of 1921, provides that:
"All deeds of sale made, or that may be made, by the collectors of taxes, shall be received by courts in evidence as prima facie valid sales."
This is a deed of sale made by a tax collector, and recites that all the formalities required by law for making tax sales were complied with. Tax sales are valid only when made in compliance with the rules and regulations prescribed by law, and it is settled beyond controversy that those who hold property under tax deeds containing recitals that the property was thus sold may rely upon *642 them as prima facie evidence of valid conveyances of the property to them.
The statute now in force regulating tax sales is Act No.
These recitals, however, are only prima facie, not absolute, proof that the law was complied with. They are open to rebuttal. Hence tax titles are subject to attack within three years for informalities leading up to and in the making of the sales, such as failure to give notice, failure to advertise, failure to offer for sale the least portion of the property which any one would purchase for the amount of taxes, interest, costs, and penalties due, and the like. But such sales will not be set aside unless it is affirmatively shown that the recitals of the deed are untrue, and the burden is upon him who makes the attack to show that.
Regularity in the making of tax sales is always presumed. This is because "the law presumes that those things were done which it commanded to be done." Hence it follows that tax sales, under deeds reciting full compliance with the law, must stand until overthrown. Slattery v. Heilperin,
It is argued by counsel for plaintiff that the deed executed by the tax collector in the instant case is not in the form required by law and is not, of itself, evidence that the officer complied with the law; that a general statement to the effect that the property was sold pursuant to Act No.
In support of their argument, counsel cite Rapp v. Lowry, 30 La. Ann. 1272, Person v. O'Neal, 32 La. Ann. 228, Lambert v. Craig, *644 45 La. Ann. 1109, 13 So. 701, and Bristol v. Murff, 49 La. Ann. 357, 21 So. 519.
Without going into detail as to what these cases hold, but conceding that they support plaintiff's contention, it is manifestly clear that, if they do hold as contended, they are not in harmony with later jurisprudence and cannot now be followed. Later cases stress the point that it is provided in the Constitution that deeds made by tax collectors are to be received by courts as prima facie evidence of valid sales, and they give effect to the presumption of regularity in the proceeding.
In the case of Slattery et al. v. Heilperin Leonard,
"The deeds he executed to the purchaser are silent as to notice and as to the offering of the least quantity. But they substantially comply with sections 44 and 45 of Act No. 77, p. 101, of 1880, which is the statute under which the sale took place."
After citing the cases of Tensas Delta Land Co. v. Sholars,
"We do not understand, therefore, that the omission from these tax deeds of the recital that notice had been given to the tax debtor, or that the tax collector, before offering the property in globo had offered the least quantity of it that any purchaser would buy for the taxes, interest and costs, destroyed the prima facie valid character of the deed given it by the Constitution. Cane v. Herndon,
"Neither the Constitution nor the statute of 1880 specifically required these recitals to be made. The law presumes that those things were done which it commanded to be done."
The holding in Simoneaux et al. v. Lumber Co.,
"A tax deed, under article 210 of the Constitution of 1879, furnishes prima facie evidence of a valid tax sale, although it contains no recital that notice was given as required by the statute. `The law presumes that those things were done which it commanded to be done,' and imposes on the defendant the burden of adducing `some evidence of failure to give notice to the delinquent tax debtor'" — citing the Slattery Case, supra.
The case of Nebraska-Tensas Co. v. Moritz,
"In the absence of any such proof the presumption is that the tax collector performed his duty and followed the requirements of the law. The law does not require that the prescribed manner of offering property for *646 sale for taxes should be recited in the tax deed."
The court then referred to three cases, Norres v. Hays, 44 La. Ann. 912, 11 So. 462, Gulf State Land Co. v. Fasnacht, 47 La. Ann. 1296, 17 So. 800 and Bristol v. Murff, 49 La. Ann. 358, 21 So. 519, which were cited as supporting a different view. As to Bristol v. Murff, the court said that it seemed to have been the opinion at the time that case was decided "that the tax deed should contain a recital of compliance with article 210 of the Constitution," but of this case it was said:
"The later jurisprudence, however, is not in harmony with the case last cited."
Bristol v. Murff, supra, is one of the cases cited by counsel for plaintiff in support of their contention.
Plaintiff offered no testimony to impeach the regularity of this tax sale, and, in the absence of such testimony, it must be upheld.
The description of the property is sufficient to identify it. The assessment rolls filed in evidence show that the property is in Avoyelles parish. It is described by boundaries, north, east, south, and west, just as it is described in plaintiff's mortgage. While the section, township, and range are omitted, yet, as its boundaries are definitely stated, it can easily and positively be identified. Landry v. McWilliams,
It is alleged that the taxes were paid previous to the adjudication. There is no testimony to support the allegation. There is a stamp notation on the margin of the tax roll showing that the taxes were paid on May 19, 1928, which was the day on which the adjudication was made. The deed recites that the defendant, Scallan, "bid the amount of taxes assessed against and due by the property, together with interest and all costs," amounting to $28.60, which said sum was "paid in cash to me, the said sheriff and tax collector."
The fact that the rolls show that the taxes were paid on the day the adjudication was made does not ever create a suspicion, much less a presumption, that the tax debtor, or any one for him, paid the taxes prior to the adjudication. The presumption is that the tax purchaser paid the taxes the day the property was adjudicated to him, and that the tax collector then noted the payment on the rolls. If there had been any doubt about it, the plaintiff could have called Mr. Couvillion, the tax collector, who made the sale, to dispute it. He was then living and present when the case was tried, but was not called.
Mr. Laborde, the tax debtor, died more than three years after the sale. He remained on the property, but as tenant of Scallan, the tax purchaser, paying each year $75 as rental. If he had paid his taxes prior to the sale and if he had not known that his property had been sold for taxes, he would not have leased it from Scallan as he did. *648
For the reasons assigned, the judgment appealed from is affirmed, with all costs.
ST. PAUL, J., absent.