58 So. 899 | La. | 1912
The seven squares of ground hereinafter described were adjudicat
The sheriff served upon Hyman Hiller & Co. a notice in which occurs the following:
“By virtue of a writ of possession and seizure ■to me directed by the honorable the civil district ■court for the parish of Orleans, I hereby demand possession of the following described property, and upon your failure to comply with ■said demand, three days from service hereof .you will be ejected therefrom.”
Thereupon Hyman Hiller & Co. sued out ¡an injunction claiming ownership of said property through purchase from the heirs of ■J. B. Patrick in 1899. They allege that after ■said tax sale the state continued to assess the said property to the former owner, J. B. Patrick, and that all the taxes thus assessed to J. B. Patrick up to the time of the acquisition of said property by them from the heirs of J. B. Patrick as well as all the taxes ■assessed upon said property previous to said tax sale as far back as 1877, as well as the ¡said tax sale itself, were canceled by judgment of the First city court of the city of New Orleans, in a suit brought by their immediate author in title against the tax collector ; that all the taxes assessed upon the «aid property since 1895 have been paid; ■and that the state, having thus continued to ¡assess said property to the former owner, J. B. Patrick, and his successors in title, has renounced the said tax sale, or, at any rate, has estopped herself from claiming ownership under it.
Hyman Hiller & Co. have not proved the 'death of J. B. Patrick or any sale or transfer from him or his heirs; but the absence ¡of this proof is immaterial, since judgment must go against them even on the assumption of such proof having been made.
In Pitre v. Schleslinger, 110 La. 234, 34 South. 425, the only thing which the court decided was that prescription could not be invoked by the state for curing the nullity resulting from want of notice, where the tax debtor had continued in possession and the property had continued to be assessed to him and the taxes to be collected from him. The principle of that decision is that the prescription curing the nullities of a tax sale cannot be invoked as against the debtor who has continued in possession, especially in view of the fact that the tax collector, who is the very officer charged with the duty of taking possession of all property adjudicated to the state at tax sale, admits the adverse possession of the former owner by collecting taxes from him.
In Lisso & Bro. v. Giddens, 117 La. 507, 41 South. 1029, the court found that the tax debtor had continued in possession, and had paid all taxes. The fact, also, that the property had been redeemed, played an important part in the case.
In Gauthreaux v. Theriot, 121 La. 871, 46 South. 892, 126 Am. St. Rep. 328, the court found that the tax sale had been invalid, and that the tax debtor had continued “in undisturbed possession” and had paid the taxes.
The main element of the estoppel upon which these decisions are based is that upon which the decision of the Supreme Court of the United States, in the case of Martin v. Barbour, 140 U. S. 634, 11 Sup. Ct. 944, 35 L. Ed. 546, cited in Pitre v. Schleslinger, supra, is based, namely, the lulling of the tax debtor into a false security by which he is deprived of the opportunity to redeem his property. Another important element is the, one that prescription cannot run against the party in possession. Another is the appealing equity that the state, having received payment of all the taxes due her ought to be satisfied. All these elements are absent from this case. In this case the taxes due the state from 1877 to 1895 have never been paid, but have been sought to be canceled by a null and void proceeding against the tax collector.
The judgment appealed from is therefore set aside, and the injunction herein is dissolved ; and it is now ordered, adjudged, and decreed that the plaintiff, Philip Veith, have judgment recognizing him to be the owner of the following described property situated in, the city of New Orleans, to wit: Square- No. 2,100, bounded by Spain, Washington, Humanity, and Benefit streets; square No. 1,-981, bounded by Hunters, Deers, Treasure, and Benefit streets; square No. 1,976, bounded by Washington, Music, Treasure, and Benefit streets; square No. 1,590, bounded by Marigny, Mandeville, Industry, and Florida Walk; square No. 1,801, bounded by Music, Arts, Agriculture, and Abundance streets; square-No. 1,817, bounded by Painters, Arts, Treasure, and Abundance streets; and square No. 1,973, bounded by Marigny, Mandeville, Humanity, and Benefit streeets. And that the plaintiff in injunction, Hyman Hiller & Co.,, pay the costs of this suit.