113 So. 140 | La. | 1927
In 1910, the Louisiana Avenue Realty Company, by deed duly registered, from E.L. Szabary, purchased 40 acres of land, lying in the rear of the city of New Orleans, Szabary at the time being the undisputed owner of the land. The Louisiana Avenue Realty Company, after its acquisition, divided the land into squares and lots, styling the subdivision thus formed the Louisiana Avenue Parkway, and began selling lots therefrom. In 1916, the company sold to the Security Building Loan Association lot 40 and one-half of lot 39 of square C of the subdivision formed, and attached to the deed a plat, which is referred to therein, which designates the property conveyed with the letter F, though it makes it clear that the property is in square C. *903
In the year 1917, the Louisiana Avenue Realty Company rendered to the board of assessors for assessment for that year a list of all the property owned by it in the subdivision which it had formed, and also of all the lots in that subdivision which it and its vendees had sold. It returned lot 40 and one-half of lot 39 of square C as the property of T.J. Huff, to whom its vendee, the Security Building Loan Association, had sold it, and it returned lots 39 and 40 of square F, which includes the property in contest here, as its own property. The board of assessors, however, apparently disregarded the return made, and, it seems, concluded to follow the conveyance records. In doing so, they not only overlooked the transfer from the Security Building Loan Association to Huff, but, possibly misled by the fact that in the plat, attached to the deed by which the Building Loan Association acquired the property conveyed to it, the property is designated by the letter F, though it clearly appears from the deed and the plat that the property designated as F is in square C, assessed the Security Building Loan Association with one-half of lot 39 and lot 40 of square F, when, as a matter of fact, the Security Building Loan Association at no time owned that property, but once owned one-half of lot 39 and lot 40 of square C, which it had transferred to Huff, and when the Louisiana Avenue Realty Company was still the owner of all of lots 39 and 40 of square F. In other words, the Security Building Loan Association, instead of the Louisiana Avenue Realty Company, the owner of record, was assessed with one-half of lot 39 and lot 40 of square F.
The Security Building Loan Association did not pay the city of New Orleans the taxes levied against the one-half of lot 39 and lot 40, assessed in its name, and in 1920 the city sold the property for the taxes of 1917 to J.A. Morales. The tax title acquired by Morales was duly recorded on June 7, 1920, and the *904 property which it purports to convey is now claimed by Steve Horvath, the defendant herein, who asserts title to it under a regular chain of conveyances from the tax purchaser.
On April 13, 1923, nearly three years after the foregoing tax sale was made, the Louisiana Avenue Realty Company sold to Mrs. Mabel A. Kivlen, wife of A.C. Williamson, the plaintiff herein, one-third of lot 39 and lot 40 of square F, which is included in the property sold by the city as the property of the Security Building Loan Association to Morales for the taxes of 1917.
From the foregoing statement it appears that it Morales acquired a valid title to the property by the tax sale, then defendant, who claims title by a regular chain of conveyances from Morales, has a valid title to the property. However, Mrs. Williamson, who purchased from the Louisiana Avenue Realty Company after the tax sale was made, contends that Morales did not acquire a valid title to the property by the tax sale, and hence that defendant has no title, and has instituted this suit to annul the tax sale.
The grounds alleged for annulling the tax sale consist of three. Only one of these need be noticed. That ground is that no notice of delinquency and intention to sell was given to the Louisiana Avenue Realty Company, the owner of record at the time of the sale.
That the Louisiana Avenue Realty Company was the owner of the property conveyed by the tax sale at the time of the sale, and was then the owner of record, does not admit of dispute. The owner of record is entitled to notice of delinquency and intention to sell, to be given in the manner prescribed by law, before a valid tax sale of his property can be made, whether the property be assessed in the name of the owner or in the name of another. Such owner is the delinquent tax debtor, within the meaning of the constitutional provision requiring the giving of notice to the delinquent before making the sale. Article *905
233 of Constitutions of 1898 and 1913; Concordia v. Bertron, 46 La. Ann. 358, 15 So. 60; Adolph v. Richardson, 52 La. Ann. 1159, 27 So. 665; Arnold v. Sauer,
The owner of record, in this instance, was domiciled in the city of New Orleans, and was entitled to notice by the service of a written or printed notice upon it by delivery of the same to its proper officer or by leaving it at its place of business. Sections 50 and 51 of Act
The prescription or pre-emption pleaded is not applicable, and hence is of no benefit to the tax purchaser or to those to whom he has sold, when the owner at the time of the sale continues to remain in actual possession of the property, for his remaining in possession is a protest against the tax title and relieves him of the duty of going out to seek his adversary to attack him. Carey v. Cagney,
In the case at bar, the tax sale was registered or recorded on June 7, 1920. Plaintiff bought the property on April 13, 1923, from the Louisiana Avenue Realty Company, the owner at the time it was offered for sale, and on the following day, acting through her husband, she began to haul material on the property for the construction thereon of a home. Two days later the actual construction of the home commenced. The work was completed on June 14, 1923, and plaintiff and her husband have been occupying the property ever since as their home. Therefore plaintiff took possession of the property adversely to the tax sale before the prescription of three years accrued, and has maintained that possession. Hence the prescription of three years pleaded has not the effect of barring plaintiff's demand.
Our conclusion is that the tax sale is null, and that the attack upon it is not barred by the prescription of three years. We may also add that the fact that defendant and those from whom he bought are purchasers in good faith does affect the questions here considered. So thought the trial judge, with reference to these questions, and he rendered judgment accordingly, and recognized plaintiff as the owner of the property.
*907The judgment appealed from is affirmed.