34 So. 582 | La. | 1903
Statement of the Case.
On the 22d of July, 1902, John F. Lindner filed a petition in the civil district court for the parish of Orleans, in which he averred that he was the owner of certain property in the city of New Orleans, which he described; that he acquired the same from the state of Louisiana for un
The district court rendered judgment decreeing that the writ of mandamus issued be made peremptory in s.o far as to order and command the city of New Orleans to cancel and erase from the books of its office the tax liens, privileges, and other claims it might have under the assessment in the name of Leonie Heilman from the year 1888 to the year 1898, both inclusive, against the prop-, erty which the judgment described, and in all other respects the writ of mandamus be dismissed.
The city of New Orleans appealed to the Court of Appeal. That court affirmed the judgment, and upon ¿pplication to this court the cause has been brought up for review.
The evidence discloses that the property was adjudicated to the city of New Orleans on the 17th of September, 1894, in enforcement of city taxes assessed in the name of Leonie Heilman, and that the tax deed evidencing this adjudication was registered in the books of the conveyance office of the parish of Orleans.
The city does not appear to have taken either actual or constructive possession, by writ under this adjudication. The property continued to be assessed' in the name of Leonie Heilman.
On the 20th of Julie, 1901, the property was adjudicated to the relqtor at .a, tax sale made at the instance of the state of' Louisiana in enforcement of the unpaid taxes on the same for the year 1900 assessed in the name of Leonie Heilman. A tax deed was executed to the relator on the 16th day of July, 1901, which was recorded on the books of the conveyance office of the parish of Orleans on the -— day of-.
■ On the 21st of July, 1902, an order issued from the civil district court' directed to the sheriff of the parish of Orleans commanding him to seize and place the relator in the actual possession of the property. The sheriff returned the writ on the 23d of September, declaring that he had placed the relator in possession on the 4th of September.
The city of New Orleans contends that, the property having been adjudicated to it in 1894, and its deed registered, it was ifo longer liable to state taxation; that the state was
That the title which the city acquired in 1894 was legal and binding, and could not be ignored, divested, or set aside by the tax proceedings taken by the state. That the title claimed by relator was absolutely null, and was not of character such as to entitle him to avail himself of it so as to apply by mandamus for the cancellation of the city taxes assessed against it. That, before judgment could be rendered in his favor on such a demand, his own title should be judicially advanced by direct action against it, tested, and held good. In support of its claim that property belonging to the city of New Orleans was not liable to state taxation, to assessment for taxes, or to sale for delinquency in the payment of taxes, counsel refers the court to its decision in Gachet v. City, 52 La. Ann. 816, 817, 27 South. 348.
Relator insists that the title set up by the city of New Orleans to the property is absolutely null and void for want of the notice required by law. That prescription had not run in aid of the title, as the former owner had remained in possession after the alleged adjudication, and her possession was followed by that of relator.
He insists that the property was constantly liable to state taxation, and subject to sale at the instance of the state in enforcement of delinquent taxes, and that this would have been the case even had the title vested in the city under the adjudication which the city sets up as having been made to itself. He denies that by an adjudication to the city at a tax sale made in enforcement of city taxes the property would have become “public property” of the city of New Orleans, and denies that it is held by the city by the same tenure as that under which it held the property which was involved in the case of Gachet v. The City of New Orleans.
He further contends that the city of New Orleans, by taking no steps whatever towards acquiring either actual or constructive possession of the property under the adjudication made to it, by having permitted the original owner to remain in actual possession and the assessment of the same to be continued in her name, by having permitted it to be sold at tax sale in enforcement of state taxes under such an assess-, ment to relator, and relator to have taken and held actual possession of the property, was estopped from questioning relator’s title, particularly from doing so by a collateral attack.
Opinion,
The city of New Orleans having been called into court and invited by the plaintiff to show cause, if any it had, why the taxes, tax privileges, liens, mortgages, claims, etc., upon the property described should not be declared extinguished, and the inscriptions erased, the door was opened to it to set up any objections which it believed it had in the premises. If it was itself the owner of the property under the adjudication to it, or if the title on which relator based its demand was without just foundation, it was not only the right, but the duty, of the officers of the city to urge these facts by way of cause.
Should such a state of facts have been shown on the trial of the rule as would disclose the city’s grounds to be not well taken, it would take nothing in the cause. This,however, is something other and different from being estopped from questioning relator’s rights, or from urging judicially its own.
The situation seems to be this: Both parties claim to own the property under proceedings taken out in enforcement of delinquent taxes upon it under assessments made on it in the name of Leonie Heilman — the city in enforcement, in 1894, of city taxes; the state in enforcement of state taxes in 1901. We do not understand relator to contest the right of the city to have taken action in 1894 in enforcement of the city taxes (West v. Negrotto, 52 La. Ann. 389, 27 South. 75), but to urge that the proceedings then taken were null and void for want of legal requirements, and that the adjudication made to the city did not, under the circumstances, stand in the way of the continued assessment of the property in the name of Mrs. Leonie Hellman for state taxation, nor in the way of the enforcement of the state taxes directly against the property under such assessment as property still belonging to the original owner, Mrs. Heilman. He contends that, such assessment having been continued, and
In its opinion the Court of Appeal used the following language: “The relator, a purchaser of real estate at a sale in 1901 for nonpayment of the state tax for 1900 seeks to cancel certain city taxes and privileges, and is met by the defense that the property was adjudicated to the city in 1894, and hence the state could not sell the property for taxes. The issue tendered and accepted-without objection in this court by either side is one of title. * * * It is argued by the city that ‘thd state authorities had no right to sell at tax sale property which had previously been sold by the city of New Orleans for its own unpaid taxes, so long as the title remained in the city.’ We do not share that view. * * * The city cannot, in reason, adjudicate property to itself, take no further steps to realize its taxes, and thus defeat the right of the state to exact her revenue for subsequent years. Full protection is afforded the city by the general provisions of existing statute as well as by the special provisions of the revenue acts to the effect that no sale for state taxes of the year immediately past due shall extinguish the claim for municipal taxes for any previous year or years.”
“The city’s right is merely suspended while the property is held by the state.”
“If seasonably exercised, this right will be found amply sufficient to secure the municipal fisc without interfering with the collection of its revenue by the state. In the instant case the sale by the state divested the city’s ownership. Its validity as to prerequisites and formalities is not assailed, and the purchaser has the right to demand the cancellation of the privileges which are prescribed.”
In refusing the application for a rehearing the court said that its decision referred to property of taxpayers adjudicated to the city at a sale for municipal taxes, and not to that held by the city for public purposes; that the quasi sovereignty of the city could not be exercised to the detriment of the sovereignty of the state, when the property was held not for public purposes, but to realize the taxes; that to hold otherwise would be to consecrate the doctrine that municipal negligence and inertia could paralyze the sovereign’s efforts to collect both its current and its past revenue; that Gachet v. City, 52 La. Ann. 814, 27 South. 348, did not militate against this view.
We are of the opinion that property liable to state taxation does not become exempt from the same by the mere fact that in en
Holding that position, it was entitled to invoke in its behalf all the remedies belonging to an owner, subject, however, to contest . of its rights by the city acting as a plaintiff.
It may be that relator’s title is not sustainable as between himself and Mrs. Hellman, but the present issue is not between them. As matters are, relator has the right to stand upon his present possession under color of title as owner. The city must, rely upon the strength of its own rights, not upon the weakness of those of relator. We think that the proceedings taken out by the city in 1894 did not divest Mrs. Heilman of her ownership of the property, that the state was authorized to assess it in her name for state taxes, and to proceed in enforcement of the delinquent taxes contradictorily with her. Assuming those proceedings to have been defective, and that the owner be entitled to contest them, the adjudicatee at the sale made under them has none the less gone into and is now in actual possession of the property after notice to the owner under a writ of possession from the civil district court. The city has lost the vantage ground it might have held had it taken possession under the adjudication to it. It must suffer the legal consequences of its own 'negligence and laches. The defects in the city’s title have not been cured by prescription of three years under article 233 of the Constitution of 1898, the property having constantly remained in the actual possession of Mrs. Heilman and the relator. ■ -
For the reasons assigned, the judgment appealed from is affirmed.