Opinion on the Merits
On the Merits.
This is an action to confirm a tax title, under the provisions of Act No. 101 of 1898. The plaintiffs are the heirs at law of Mrs. N. A. Scheen, the purchaser at the tax sale. The defendant® are the heirs at law of W. L. I-Iain and his wife, Mrs. Aurora Michamps Hain, the former owners of the property.
The tax sale sought to be confirmed was made on the 13th of April, 1882, and recorded on the dext following day. This suit was filed on the 10th of April, 1915, and citation was served on the defendants on the 15th and 16th days of that month; that is, more than 33 years after the recording of the tax sale. Conceding that the defendants and their ancestors remained continuously in possession of the property from a date prior to the adjudication for taxes, up to the time of the institution of this suit, the plaintiffs do not claim the benefit of the three-year prescription provided in article 233 of the Constitution, but bring their suit under section 1 of Act No. 101 of 1898. In answer to the suit, the defendants set up a reconventional demand to have the tax sale declared null for various reasons, mainly that the taxes for which the property was sold, the taxes for 1881, were assessed to W. L. Hain and paid by him before the day of the adjudication. Judgment was rendered in favor of the defendants, declaring the tax sale null, and dismissing the plaintiff’s suit. The plaintiffs prosecute this appeal.
It is impossible for the defendants to explain the memorandum on the tax receipts, “Sold to Mrs. N. A. Scheen,” because Mr. and Mrs. W. L. Hain, Mrs. N. A. Scheen, and the tax collector are dead, and the deputy tax collector who signed the tax receipt had been absent from the state of Louisiana 20 years when this suit was filed. Under these circumstances, the presumption is either that the memorandum was written on the tax receipts by some unauthorized person, 14 days or longer after the receipts were issued, or that Mrs. Scheen did not pay or was reimbursed the amount of the taxes. It is not only probable, but quite certain, that the reason why Mrs. Scheen and her heirs did not assert any claim to this property during the 33 years after the date of the tax sale is that she and her heirs were aware that she had no title—either because the taxes were paid before the adjudication, as disclosed from the date of the tax receipt, or because she did not pay or was reimbursed the amount of the taxes. The law looks with disfavor upon a stale claim of ownership of land based on a tax title. See Slattery v. Heilperin and Leonard, 110 La. 86, 34 South. 139, and Head v. Howcott Land Co., 119 La. 331, 44 South. 117.
The record discloses that the principal part of the land described in the tax deed belonged to Mrs. Aurora Michamps Hain, who was separate in property from her husband, at the time of the assessment and sale for taxes in the name of her husband, and that only a comparatively small part of the land belonged to him. But that does not aid the plaintiffs in this case. The payment of the taxes previous to the adjudication renders the tax sale absolutely null, even though the payment was made by one who was not the
The plaintiffs’ counsel objected to the defendants’ asserting the nullity of the tax title as a defense to this suit. They contend that the action of nullity should have been urged in a separate suit. The rule of pleading in answer to an action to confirm or quiet a tax title, is stated in 37 Cyc. 1488, and is supported by decisions from almost every state in the Union, as follows, viz.:
“Where a tax purchaser sues for possession or to confirm or quiet his title, he, of course, puts that title in issue, and the original owner may avail himself, by way -of defense, of any matters sufficient to overthrow the tax title, such as the nonliability of the land to taxation, the previous payment of the taxes, jurisdictional defects in the prior proceedings, or fatal irregularities in the tax sale.”
Among the decisions cited in the footnotes under the foregoing quotation are Harris v. Natalbany Lumber Co., 119 La. 978, 44 South. 807; Doullut v. Smith, 117 La. 491, 41 South. 918; Lisso v. Unknown Owner, 114 La. 392, 38 South. 282; Boagni v. Pacific Imp. Co., 111 La. 1063, 36 South. 129.
The judgment appealed from is affirmed at the cost of the appellant.
Lead Opinion
On Motion to Dismiss Appeal.
The motion to dismiss is denied.