Remick v. Lang, No. 11,628

No. 11,628 | La. | Feb 11, 1895

Lead Opinion

The opinion of the court was delivered by

Miller, J.

The plaintiff alleges ownership of lots and squares of ground in the sixth district, and seeks to enjoin the defendant from asserting title based on the tax deed he holds, and to have the deed annulled. The defendant pleaded by exception (l),th6 prescription of one, three and five years, and (2) no cause of action. The exceptions were referred by the court to the merits. In his answer the defendant maintains the validity of the tax deed made under Act No. 82 of 1884; avers there has been no refusal to comply with the terms of that act; and, referring to an allegation in the petition, that plaintiff has paid the taxes on the property, and received redemption certificates from the State, denies that the property could be redeemed by the owner after the sale by the State, under the act of 1884, to the author of defendant’s title, and further pleads that plaintiff being the owner before the tax sale, is estopped, from claiming the property from defendant holding under that tax sale. From the judgment of the lower court against plaintiff this appeal is taken.

. The plaintiff acquired the property by authentic act in 1867. It is conceded the property was adjudicated to the State for taxes prior to 1880, and thereafter in 1885 sold, under Act No. 82 of 1884, to Lake, by him sold to Perkins, and by Perkins to defendant in 1893. The adjudication to Lake was on the condition he should assume and take the property subject to the taxes of 1880 and subsequent years. These taxes were never paid by Lake, or the vendees under him. In 1893 the plaintiff, as owner, paid the taxes from 1880 to 1893, and the State issued to him certificates of redemption.

The plaintiff urges his suit is for slander of title. He avers ownership ; that defendant claims the property under a tax title charged to be void, because of non-compliance with its condition; that the asserted tax title is a cloud, and the relief sought is an injunction to restrain defendaut from claiming ownership under the tax title, and that it be annulled. In the jaeitation suit the plaintiff avers ownership ; charges the slander, prays damages, and that the defendant exhibit his pretended title or be enjoined from asserting it. While the petition in this case does not technically charge the slander, we think, taking all the allegations together with the prayer, the suit is substantially for slander of title, and besides an attack on the tax title. The prayer for the injunction, and no prayer for a decree of ownership, the conclusion of the petition in the petitory action, in our view, more especially gives it the character of the jaeitation suit. The action is derived from the Spanish law. It does not try the issue of title, unless the defendant, in his answer, chooses to tender that issue. In this case the defendant averred title, and pleaded prescription in support of if. Making this issue, the defendant becomes practically the plaintiff in the petitory action. Livingston vs. Heerman, 9 Martin, 715; Packwood vs. Dorsey, 4 An. 90; Dalton vs. Wickliffe, 35 An. 355. While this is our view of the character of this action the rights of the parties would not be sensibly altered if the suit is viewed differently.

The plaintiff claiming the property under the conveyance of 1867, is met by the assertion of the tax title. Whatever the effect to be attributed to the tax title, when it is opposed to the plaintiff claiming ownership, he is entitled to controvert its effect by any means of defence in his power. McMaster vs. Stewart, 11 An. 546; Daquin vs. Coiron, 3 La. 392; 2 Hennen’s Digest, 1155. The plaintiff in this case maintains the tax title has no effect, and relies on the decision of this court. Martinez vs. Tax Collectors, 42 An. 677.

Under the Act No. 82 of 1884, the purchaser of property adjudicated already to the State for taxes, is required, besides the price paid, to assume, and promise to pay the taxes levied subsequent to December 31, 1879. The price paid goes to satisfy the taxes prior to that date. The manifest purpose of the act was to enable the State, by selling property it held for unpaid taxes, to realize these taxes. It is not enough for the purchaser to pay the price bid, generally, and as in this case a mere pittance, and for which the State, city and parish were to release all taxes prior to 1879, but he is to pay besides the taxes accrued after 1879. True, the language of the act is: He shall assume and promise to pay, but this can not be deemed to mean that the State is to have some kind of remedy, or mere claim or lien for the taxes. Under the Constitution, the general rule is, the State can bring no suit for taxes, and it is not easy to appreciate how the State could ever realize the taxes subsequent to 1879 on property adjudicated under the act of 1884, if it be accepted that the mere assumption by the purchaser was sufficient. If this mere assumption be accepted as the meaning of this act of 1884, the act perishes under the construction, so far as respects the manifest objects of the legislation — that is, to realize taxes due. Under the construction contended for, the act doubtless is a boon to tax-sale purchasers, but there its benefit ceases. This is well illustrated in this case. The adjudication for these taxes subsequent to-1879 was made in 1885. Five years’ taxes were then due, and should have been paid by this purchaser. Taxes for eight years more were due in 1893. Not one dollar had been paid. The pretension now of this-defendant holding under the tax purchaser, is that the State in 1893 was precluded from receiving libs taxes from the owner, who then came forward and paid the arrearages. With nothing paid by the tax purchaser, or those who acquired from him with full notice-of the character of his title, it is now insisted that the other method of getting its taxes, i. e., from the owner, was denied to the State. It was in view of the object of this act of 1884, to enable the State to realize its unpaid taxes, and in full view of the result so well illustrated in this case, of a construction which in effect gives up the taxes of the State, that led to the interpretation of the act of 1884 announced in our previous opinion. To that conclusion we adhere. It means that when the State sells property under the act of 1884, it is to get the taxes to realize which the act was passed, and unless that payment is made, no title passes. This interpretation gives to the act potency to realize for the State cash for its unpaid taxes, instead of mere assumptions of tax sale purchasers. This interpretation also denies that the purchaser at the tax sale can defeat the payment of the taxes required to be paid UDder the act of 1884, by the simple expedient of transferring the property. The act is notice to all of the requisite to pass title under it. In our opinion the tax title is of no validity.

We have not overlooked the defendant’s contention, that he endeavored to settle the taxes he was to pay. There is some variance in the testimony on this point. The tax collector testifies the purchaser at the sale was endeavoring to procure a new title by purchase, and not the completion of the tax title relied on in this case. It is urged on us, too, that the settlement was prevented because the tax collector insisted the purchaser should, besides the taxes, pay costs and charges not demandable. We see no reason why the taxes should not have been tendered, nor if refused, why in the eight years since the adjudication in 1886, un ier the act of 1884, the tax collector was not sued to compel him to accept the -taxes. In that suit the liability of the tax purchaser for the disputed costs and charges would have been determined, and the result attained would have been the completion of the tax title or the cancelling of the adjudication. As it is, eight years have elapsed since the adjudication under the act of 1884, with no payment required by that act. If the pretension of title under that act is sustained, in effect the purchaser will get the property and the State will have nothing to represent the taxes it should long since have received for that property, except an assumption on which not a dollar has been paid for years, the value of the assumption being well illustrated by that fact.

The exception of no cause of action is on the theory that the owner whose title has been divested by a tax salé can not redeem after the delay given him by law. The theory is correct, but its application in this case fails. Oar decision is, the tax sale passed no title to the author of defendant’s title or to him. The pliintiff is without interest to question the redemptions.

The counsel for defendants has filed an elaborate brief to sustain tax titles. The brief discusses the subject in the general aspect, and particularly the effect of such titles as proof of the legal requisites to pass title. The prescriptions supporting tax titles are presented to us, and the statutes and authorities on the subject examined at length. We do not think this case calls for an expression from us on the topics to which the briefs are devoted. In our view the inquiry is limited by the interpretation we place on the act of 1884, under which no title passed. That view disposes of the case, and precludes further comment on the points in defendant’s brief.

It is therefore adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered,- adjudged and decreed that the plaintiff be, and he is hereby decreed to be the owner of the property sued for, but this decree is not to take effect until the plaintiff reimburse to defendant the price paid by Lake at the tax sale, with the ten per cent, interest from date of payment, and it is further ordered that defendant pay costs.

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Concurrence Opinion

Concurring Opinion.

Watkins, J.

I place my concurrence in the decree in this case on the ground that the purchaser, under Act 82 of 1884, failed to pay the taxes that were assessed on the property since 1880, and anterior to the adjudication to him in the forced collection of taxes antecedent to 1880, and which taxes he had assumed as a part of the purchase price.

This is the exact import of our opinion in State ex rel. Martinez vs. Tax Collector, 42 An. 677.

It was affirmed in State ex rel. Powers vs. Recorder, 45 An. 56.

The case stands thus:

Plaintiff, as original owner, defaulted in the payment of taxes of the years 1874, 1875, 1876, 1877 and 1878.

In 1884 and 1885 the property was adjudicated to the State under Act 77 of 1880 and Act 96 of 1882 (Revenue Laws), for unpaid taxes of 1880, 1881, 1882 and 1888.

Subsequently, in 1889, it was adjudicated to Orloff Lake for the taxes prior to 1880, under Act 82 of 1884, the purchaser assuming, as pai’t of the purchase price, “ all taxes, with interest and cost, subsequent to 1880.”

Neither Lake, adjudicatee, nor Lang, his vendee, ever paid these taxes.

In 1898 the-plaintiff, exercising the grace of our statutes of 1888 and 1890, paid the taxes since 1880, and procured from the auditor of public accounts a certificate of redemption and subrogation to all rights of the State', growing out of the adjudication to the State.

Thereupon the plaintiff instituted this action to have the tax sale to Lake, and his subsequent transfer to Lang, cancelled and erased 'as being a cloud upon his title, defendant insisting that title is good, perfect and complete.

He also insists that plaintiff’s redemption enures to his benefit, because he was in duty and law bound to discharge and keep down the taxes, and cannot be allowed to thus come in competition with him .

The difficulty of the defendant’s 'situation, in my opinion, is that he was a mere stranger to the plaintiff at the time he bought. Between them there were neither relations of trust or confidence, as those between debtor and creditor, mortgagor and mortgagee. Hence plaintiff was under no obligation to keep down the taxes for the benefit of the tax purchaser and his vendee; particularly in view of the fact that the purchaser had assumed those very taxes as a part of the price he was to pay.

For these reasons I concur.

Mr. Justice Breaux dissents.

Application nor Rehearing.

The court has had under careful consideration the application for the rehearing in this case. There is but one issue, at least in this sense, i. e., that determined against the purchaser on the character of his title acquired at the tax sale, renders wholly unnecessary any notice of other issues. The court is not to be, therefore, understood as dealing with the provisions of law, so largely discussed, of the right of the owner to redeem. The controlling question is, the character of the title passed to the purchaser at the tax sale under the Act No. 82 of 1884. If the tax purchaser obtained no title under that act he is without interest to contest the relinquishment of the right of the State by permitting the owner to redeem. The construction of this act of 1884, as to the title of the tax-sale purchaser, received the fullest consideration in the Martinez case, not presenting, it is true, the phase of controversy in this case. The decision in this ease was not reached without the fullest consideration of the bearing of that decision, with all the qualifications suggested by the v ried form of this litigation, and not without the appreciation of the argument advanced in the original brief, and those filed on ihe rehearing. It was the conclusion of the court that the reasoning of the court in the Martinez case controlled the decision here. We adhere to the decision in this case, and refuse the rehearing.