44 La. Ann. 556 | La. | 1892
The opinion of the court was delivered by
This ease was remanded to be proceeded with in accordance with the views expressed in the opinion, ordering it to be remanded.
After it had been remanded a compromise was effected, in compliance with which all the taxes were paid, except those for 1880, and all the issues were settled, except those relating to the taxes sought to be collected for that year.
In remanding the case the rights of both parties were reserved. Leeds & Co. vs. Treasurer, 43 An. 813.
By agreement the evidence admitted at the first trial is of record in this appeal.
At the second trial plaintiff introduced the record of a suit of the City of New Orleans vs. Charles J. Leeds, No. 454.
It was proven in said ease that the taxes were levied on the assessment roll of 1879 against Charles J. Leeds, prepared by the department of assessments.
Ordinances of the council accepting and approving the rolls of that year, as the basis of taxation for the year 1880, were also introduced in evidence.
The City of New Orleans, in said case, sued Chas. J. Leeds for city taxes of 1880, levied on the assessment of 1879, for the sum of $1327.50. (Being the same taxes for which the present suit was brought.)
Without waiving his exception the defendant filed an answer, in which he denied that the property described as being in square No. 122 belonged to him, bub alleged that it was the'Jproperty of Leeds •& Co., and he averred that the property was employed in the manufacture of machinery and agricultural implements, and that more than five hands were constantly employed in the said manufacture, and that it was, therefore, exempt from taxation.
As to this property, the District Court decided that he could not stand in judgment, as it was not his property.
With reference to the property in another square, viz., 202, as it belonged to the defendant, he was condemned to pay the taxes thereon, amounting to $247.50.
In all other respects the claim of the city was rejected.
The court reserved to the city the right to assert its claim against the firm of Leeds & Co. This judgment was rendered April 29,1881. No appeal was taken from this judgment. It is pleaded as res judicata, We will not decide that plea, for the reason that a decision on the plea of prescription disposes of the case. It appears of record that, on the second day of.August, 1878, the old firm of Leeds & Co., owners of the said manufacture, had been dissolved and a partnership was formed.
The interest of the said Charles Leeds in the partnership was nine-sixteenths and that of Miss Julia Leeds seven-sixteenths.
In June, 1889, it became the property of Leeds & Co., Limited.
In 1890 two lots of ground, viz., 8 and 9, in square 122, were advertised for the taxes of that year, due by Charles J. Leeds; also six other lots were separately advertised for taxes of the same year, situate in the same square.
Two other lots in the same square were advertised for taxes, of -that year, due by the said Leeds or Leeds & Co.
The act of sale from Leeds & Co. to Leeds & Co., Limited, contains the following:
“ That said Thomas Deeds, vice president of Leeds & Co., Limited, * * hereby assumes all the other debts and liabilities of the firm of Leeds & Co., composed of Charles J. Leeds and Miss Julia
The reservation contained in the judgment of April 26, 1881, did not bind Leeds & Co., third persons.
As to them it is as if no reservation had been made.
It is made manifest by the reasons for the judgment and the terms of the judgment, that the claim as against the defendant, except as to the amount before mentioned, was rejected.
We have noted the fact that part of the property for 1880 was assessed in the name of Charles J. Leeds, and that certain lots were assessed in the name of Charles J. Leeds and Leeds & Co.
'The corporation of Leeds & Co., Limited, third persons in law, of which corporation six different persons are the members, allege and prove that they are the owners of the said property since June, 1889, and they plead the prescription of three years.
Commencing with Succession of Samuel Stewart, 41 An. 131, in which it was held “that the lien, privilege and pledge resulting from the inscription of the taxes due the city of New Orleans from the taxes of 1880 and 1882, are prescribed, but that the taxes of 1880 and 1882 are still due said city, which remains as an ordinary creditor for the amounts thereof and entitled to be paid accordingly,” this court has uniformly decided that the three years’ prescription applies to tax liens and privileges, but not to the taxes themselves.
This principle was reaffirmed in the case of Leeds & Co. vs. Treasurer, 43 An. 812.
Whatever of personal responsibility remains against the tax debtor can hot be invoked as against third persons.
They can only be held for tax privileges extant.
Not long since a question in pari materia was before this court for determination.
“ The city,” said the court, “ admits that the liens and privileges are presented for the taxes of 1887 and prior years; therefore, we-are relieved from the necessity of examining that question.
“ We can discover no possible force in the city’s contention that plaintiffs must be denied relief, because it was stipulated in their act of mortgage that the mortgagor should pay the accruing taxes.
* ' * * The city further contends, as we understand it, that plaintiffs are entitled to no relief of the prescription of the privileges, because the taxes themselves are not prescribed. * * The code defines a privilege to be ‘a right which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors, even those who have a mortgage.’ ” O. 0., Art. 8186.
‘ ‘ The law granted this privilege to the city for its taxes; but the same law declares that the privilege should be prescribed by three years.”
* * * “ Obviously\ when the privileges for these taxes were prescribed, the taxes became mere personal claims against the tax debtor, having no greater rights against this particular property than against any other property of the debtor.” Schelefield, Goodman & Go. vs. Succession of B. J. West & Oo., ante.
We therefore conclude that the lien and privilege, as against the plaintiff, are prescribed.
The defendants contend in argument that by the express assumption before copied in our opinion plaintiffs are estopped from contesting the- regularity and legality of the assessments upon which the taxes involved were levied.
We limit the issue entirely to the question of prescription of the lien and privilege, and eliminate from consideration “all questions of the regularity and legality of the taxes,” as they present issues not necessary, to decide in the ease.
A purchaser who denies in the first place that there are taxes due on the property he buys can not be held to have assumed the debt and to have taken the lien and privilege by which it is secured out of prescription in having added that if, however, there were any
The plaintiffs not having assumed the debt, and not having acknowledged the lien and privilege, are not estopped.
“An estoppel must be certain to every intent, and is not to betaken by argument or inference.” Best., p. 527.
Plaintiff alleged that it has been damaged in attorney’s fee, vexations and annoyances in the sum of $500.
The court a qua decided that the taxes could not be recovered,, and allowed damages in the amount claimed.
The city through counsel acted in good faith.
The questions were properly litigated, and do not manifest the least desire to annoy or to be vexatious.
We have not discovered the least ground for allowing damages.
It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed in so far as it perpetuates the injunction sued out, and in every respect, except in so far as relates to the “ sum of five hundred dollars as damages with legal interest from January 4, 1892,” which are rejected, and in that respect the judgment is amended and no damuge is allowed.
As amended the judgment is affirmed at appellee’s costs.