43 La. Ann. 789 | La. | 1891
The opinion of the court was delivered by
The object of this suit is to compel the defend■ant to accept the title offered him, to property which he had agreed to buy, and which he declined because it is not good and valid.
The property was purchased by the plaintiff, at a tax sale by the Collector, on the 10th of July, 1885, for taxes of 1871 to 1878 inclusive, under the provisions of Act 82 of 1884.
The deed was delivered to him on the 30th of September, 1885, and registered in the conveyance office same day.
Since then, the plaintiff has been in the undisturbed possession of the property, which has been assessed in his name each year, and he has paid the State and city taxes due thereon.
The objections to the title are (1) that the former owner has not voluntarily yielded possession to plaintiff, and that, in default, the sheriff, under proper proceedings, did not put plaintiff in possesion ; (2) that the former owner has not been notified, as the Constitution requires.
In relation to the first objection, it is enough to say, that the law never contemplated that the title of a purchaser of property, at a tax sale, could be forfeited only if the divested owner voluntarily yielded him possession; or, that, in the absence of such, the purchaser should invoke the powers of the judiciary to be put in possession, and should enter the property.
The law does not require vain things. Purchasers might have to wait quite long, if they were made to depend upon the willingness of expropriated owners to place them in possession, and they are not required, where no resistance is offered, to institute judicial proceedings, and to have the executive of the court, by force, to put them in possession, where there is no necessity for it. They have the right to take possession themselves, whenever, they can do so without difficulty..
In relation to the second objection, it is apparent that it is groundless.
The defendant misconstrues the ruling in the case of Breaux vs. Negrotto, recently decided, which presented the feature of a tax sale, for taxes due since the adoption of the present Constitution, Article 210 of which requires that notice be given, otherwise than by publication, to the delinquent tax debtor.
It has no application to a case, like the instant one, in which the sale was made to satisfy taxes, anterior to the adoption of the Constitution, and which is controlled by the decisions in the Lake and Douglas suits (40 An. 143; 41 An. 766), which relate to like sales, for similar taxes.
In the Breaux case we declared that the act of 1888-, which dispensed with notice required by Act 210, could not do so, and we ex-' plained and regulated the decision in Barrow vs. Wilson,[39 An. 404.
The presumption is that the previous owner was notified, as required by the acts of 1882, and there is nothing to show the reverse.
Judgment affirmed.
