No. 20224 | La. | Apr 12, 1915
Opinion on the Merits
On the Merits.
The grounds of nullity alleged are that the newspaper in which the advertisement of the sale was published was not the official journal, and that notice of delinquency was not given to the tax debtor.
The sale was made more than 5 years before the institution of this suit, and defendant invokes the benefit of the curative provision of the Constitution (article 233) reading:
“No sale of property for taxes shall be set aside for any cause, except on proof of dual assessment, or of payment of the taxes for which*401 the property was sold prior to the date of the sale, unless the proceeding to annul is instituted # * * within three years from the * * * recordation of the tax deed.”
Plaintiffs’ learned counsel contend that the bar established by this constitutional provision is a prescription, the legal basis of which is possession; and that the defendant in this case has never had possession of any kind, neither actual nor constructive. Not actual, because the property is pine timber land of which no one has ever had any other kind of possession than the mere civil or constructive possession accompanying title. And not constructive, because a title must be valid on its face to carry civil possession with it, and the tax title in this ease is not valid on its face.
And while, as stated hereinabove, this court has over and over again referred to constructive possession in applying the said remedy, it has never held that such possession is an essential condition of it. That point is now iwesented in this case for the first time. True, in several cases, the court has justified the application of this remedy by invoking this fiction; but it has never held squarely, as it is now asked to do, that this fiction is essential. And we now hold that all that is necessary is that there should have been a tax sale. That its nullities, no matter what they might be, and no matter whether appearing on the face of the tax deed or not, are cured. Of course, a sale which is null in the sense of nonexistence, could not be thus cured; as, for instance, where the property could not be identified, or was not subject to sale; but all sales not null in that sense, but merely annullable, are thus cured. And, indeed, the fact itself of their being thus curable endows them with a potential life which they might not otherwise possess.' There can be no doubt that the framers of the Constitution intended by this provision that they should be cured, no matter what their nullities might be — saving' always in the two excepted cases — and we think this clear intention of the Constitution should be given effect, and that it stands in no need of legal fictions for having full and complete operation.
An implication from the foregoing would be that the court is of opinion that constructive possession does not follow a tax title annullable for causes appearing on its face. We do not wish to be so understood. We express no opinion on that point. However, we. may mention, in this connection, that what was held in the case of Giddens v. Mobley, 37 La. Ann. 417" court="La." date_filed="1885-05-15" href="https://app.midpage.ai/document/giddens-v-mobley-7193645?utm_source=webapp" opinion_id="7193645">37 La. Ann. 417, cited by counsel, was not that possession does not accompany such a title, but that such a title does not afford a basis for good faith. Possession and good faith are not the same thing.
Renshaw v. Imboden, 31 La. Ann. 662, another of the cases cited by plaintiffs’ learned counsel, holds that a tax sale which is on its face an absolute nullity is no obstacle to a seizure of the property by a creditor of the tax debtor. The court distinguishes between a tax sale which, though null, is not so on its face, and one which is null on its face. The writer can understand how this can malee a difference in connection with good faith, but not in other respects. In the opinion of the writer the court failed in that case to distinguish between a relative and an absolute nullity; the one not depriving the act of life, nor of effect so long as unassailed in a direct action; the other depriving it of all life, so that any one may disregard it, and may attack it whenever it is set up, anywhere, at any time, in any form of proceeding. The court treated the nullities iu that case as absolute in character, whereas they were in fact merely relative. They could not have been invoked by any. one save the tax debtor, or some one claiming through him- — and could have been ratified by the tax debtor. They were that the advertisement had not been for the full 10 days required by law, and that the adjudication had been for less than the full amount of the taxes, penalties, and costs. But, be that decision as it may, all it holds is that, under our practice, a tax sale null on its face may be collaterally attacked. It does not hold that a nullity is greater,- or more fatal to the validity of a tax sale, according to the manner in which, or the kind of evidence by which, its existence is made to appear. That, for instance, the nullity resulting from failure to give notice of delinquency, or from having advertised in a newspaper not the official journal, is any less destructive of the validity of the sale if made to appear by evidence introduced on the trial, than if appearing on the face of the tax deed. A nullity is a nullity, and does not change its nature, or its potency, from the kind of evidence by which its existence is to be established. Therefore if a tax sale that is null because of either or both of the above-mentioned defects, may serve as a basis for this constitutional prescription when the said nullity does not appear on the face of the deed (and there can be no doubt of it, for the point has been repeatedly decided), so may a tax sale tainted with the same nullities appearing on the face of the tax deed. Both deeds are translative of the property until set aside. Both may be ratified. Both may be cured by the constitutional prescription.
Another decision cited by counsel is Redfield v. Parks, 132 U.S. 239" court="SCOTUS" date_filed="1889-11-18" href="https://app.midpage.ai/document/redfield-v-parks-92596?utm_source=webapp" opinion_id="92596">132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327" court="SCOTUS" date_filed="1889-11-18" href="https://app.midpage.ai/document/redfield-v-parks-92596?utm_source=webapp" opinion_id="92596">33 L. Ed. 327. In that case, as well as in the cases of Moore v. Brown, 52 U. S. (11 How.) 414, 13 L. Ed. 751" court="SCOTUS" date_filed="1851-03-11" href="https://app.midpage.ai/document/moore-v-brown-86653?utm_source=webapp" opinion_id="86653">13 L. Ed. 751, and Walker v. Turner, 22 U. S. (9 Wheat.) 541, 6 L. Ed. 155" court="SCOTUS" date_filed="1824-03-18" href="https://app.midpage.ai/document/den-v-turner-85433?utm_source=webapp" opinion_id="85433">6 L. Ed. 155, upon which it is founded, the tax purchaser had been in actual possession during the entire prescriptive period; so that the question of constructive possession following title did not enter into it Its doctrine is simply that the curative provision there involved does not cure a nullity appearing on the face of the tax deed, even where the tax purchaser has been in actual possession. We imagine no one would venture to put upon the radical constitutional provision with which we are concerned in the case at bar a limitation such as this, especially in the light of the well-known history of that provision, and of the purpose it was designed to accomplish. At any rate not in the present condition of our jurisprudence on this point.
The judgment appealed from is therefore set aside, and the suit of plaintiffs’ is dismissed, at their cost in both courts.
Lead Opinion
On Motion to Dismiss.
Nothing shows that this error is imputable to the fault of the appellant; it is not, therefore, ground for dismissal. Hodge v. Monroe Mercantile Co., 105 La. 668" court="La." date_filed="1901-07-01" href="https://app.midpage.ai/document/hodge-v-monroe-mercantile-co-7163452?utm_source=webapp" opinion_id="7163452">105 La. 668, 30 South. 142; Railroad Co. v. Baton Rouge Brick Yard, 136 La. 833, 67 South. 922.
This case is sought to be differentiated from those in which the court has heretofore refused to dismiss the appeal, on the ground of an erroneous return day having been fixed, by pointing out that in the present case the prayer for the fixing of the return day was not that it he fixed “according to law,” hut simply that it be “fixed by the judge.” We can see no difference between the two prayers. The prayer that the jud.ge fix the return day cannot mean anything else than that he fix it according to law. It cannot possibly he interpreted as meaning that he fix it in violation or disregard of law.
The motion to dismiss is overruled.