32 La. Ann. 912 | La. | 1880
The opinion of the Court was delivered by
This is an action to annul a tax-.sale, on the following main grounds:
First. The property was not assessed in plaintiffs name, but in the name of other persons to whom it did not belong.
Third. The proceedings coercive of the payment of the taxes said to be due and conducive to the sale, were not carried on contradictorily with the plaintiff, but against other parties, not representing her.
Fourth. The taxes claimed were illegally assessed ; they exceed the limit fixed by law, and are oppressive.
In bar the defendant first pleads the prescription of two and of three years, and next urges that plaintiff is estopped from attacking the sale, because she induced him to purchase the property, and subsequently ratified the sale. The defendant further avers that plaintiff’s action, if any she have, is one of redemption.
The case was tried on those preliminary defenses. The lower court overruled the plea of prescription, and sustained the estoppel. The case-was dismissed with a reservation of plaintiff’s right to institute an action of redemption. From such judgment, the plaintiff appeals.
The plea of prescription is predicated first upon, sec. 2 of act 101 of 1873, and next upon sec. 5 of act 105 of 1874
From the terms of the last enactment, the plaintiff was authorized to consider, if she was aware of the expropriation proceedings, that she could not arrest the sale, being expressly prohibited from doing so, and that her sole relief or remedy was an action to invalidate the sale.
The plaintiff was justified, taking her allegations for true, as they must, in this proceeding, in ignoring the steps taken for the sale of the property said to be liable for the taxes in question. She avers that it stood in her name on the proper public records, whereon conveyances and transfers of real estate are entered. It was the duty of the assessors to place it in her name on the rolls which the law requires them to prepare, and which are to contain the names,of the true owners of real estate, upon which taxes are to be levied. In case of non-payment of taxes legally assessed and due, it was incumbent on the tax-collector to proceed against the true owner of the land so assessed.
The assessment of the property in question in the name of P. A. Nezat & Co., and the proceedings against them to enforce payment of the taxes alleged to be due, are not only irregular, but absolutely null, and, therefore, not binding on the plaintiff, the real owner. 15 A. 15 : 19 A. 185; 26 A. 730; 28 A. 537 ; 6 ST. S. 348; 7 L. 50; 10 L. 283 ; 13 L. 205 ; 4 A. 248 ; 6 A. 542 ; 8 A. 19 ; 10 A. 329 ; 14 A. 210.
The title of the plaintiff could not be divested in such a manner.
The provisions of the law relative to expropriation, on account of non-payment of taxes, have always been strictly construed. It has ' never been held that one could be deprived of his title to property, unless he were constructively or actually notified of proceedings for that
The act relied upon, as justifying the defense of prescription, has the same features and the same object as that relative to monitions in cases of judicial sales, is subject to the same constructions, and cannot be accepted as intended to perfect titles in ■ cases like the one at bar, in which the gravest irregularities and absolute nullities have been propounded, and were known to the party claiming title under the tax-sale.
It is a matter of serious doubt whether the defense of estoppel set up by the defendant can stand on its face as amplified by the evidence. Its object is to exclude from the revendication of her property one who charges that her title to the same was never legally divested from her. The facts upon which this defense is based are said to be that the plaintiff has, previous to the sale, induced the defendant to purchase the property, and has subsequently ratified the sale: The evidence offered in support of that plea is not in writing. It consists merely of oral testimony. It does not appear to have been objected to, and might, therefore, be entitled to effect, were it sufficient in itself. We have given it a careful attention. It is vague, conflicting, unsatisfactory, and certainly not such as should be required to substantiate such a defense. Parol testimony, if admissible, in such a case, for such a purpose, must be at least as precise and convincing as written evidence itself should be, otherwise it does not supply it.
It is worthy of notice that, these defenses, termed “ exceptions ” were expressly advanced as an “ answer.” Were we to consider them such, we should, in strict pleading, now end this litigation with a judgment for the plaintiff as prayed for ; but, as we apprehend that the word was used by inadvertence, and as it is possible that the defendant may have, rights which may thereby- be set at nought, we make it our duty, in furtherance of the ends of justice, to dispose of the case before us otherwise.
It is therefore ordered that the judgment of the lower court, overruling the plea of prescription, be affirmed, and that in other respects it foe reversed.
