40 La. Ann. 582 | La. | 1888
The opinion of the Court was delivered by
This is a mandamus proceeding directed against the Register of Conveyances for the parish of Orleans to compel him to cancel from the records of his office a tax deed to certain immovable property claimed by the relatrix to have been illegally sold to one Hakengso, who is also cited as a party to the proceeding.
From a judgment making the mandamus peremptory, the defendants have appealed.
The defendants excepted to the proceeding in the lower court on many grounds, which summarized, were substantially in effect tiiat a mandamus would not lie in such a case and for the purpose declared in the petition. The exception was overruled and a long answer to the merits filed, asserting the validity of the tax sale and a legal title acquired thereby by the purchaser at such sale.
A bare statement of the object of the suit and of the nature of the pleadings is, in itself, almost, if not quite sufficient, to show that the remedy lesorted to in this instance was not the proper one.
The tax sale in question was made in 1884.
Article 210 of the State Constitution declares : “ All deeds of sale
The same article further provides that “ No sale of property for taxes shall be annulled for any informality in the pleading, until the price paid, with ten per cent interest, be tendered to the purchaser.”
With these mandatory provisions in the Constitution, it cannot readily be conceded that this officer — the Register of Conveyances— can, in the discharge of a mere ministerial duty, erase fiom the records of his office a deed which is declared by the Constitution jprima facie valid,- or, if not valid, one that cannot be annulled for any informality until the price, with interest, is tendered to the purchaser !
Had the relatrix presented to this officer a final judgment of a competent court, contradictorily rendered against the purchaser at the tax sale, declaring the sale void, ihen he might have been compelled by mandamus to perform the ministerial duty by cancelling the deed, in case he had refused to do so.
Nor could such judgment be rendered in a mandamus proceeding. The issues that are presented by the pleadings in the instant case, are a complete demonstration of this fact. The defendant, or the party holding the tax title assailed, is entitled to have these issues tiied and determined in a regular suit, by ordinary proceeding, and with the right, if he desires, to claim it, to submit these issues to atrial by jury. This is a constitutional right which this extraordinary proceeding is calculated to deprive him of.
It is, however, urged by the counsel of the relatiix that in the case of Maspereau vs. New Orleans et al. (38 Ann. 401), it was decided by this Court, on appeal, that the assessment of the property under which this sale was made was absolutely void. In answer to that, it is sufficient to say that neither the Register of Conveyances nor Hakengos, the present defendants before us, were parties to that suit, and, therefore, as to them, it was as if it never existed.
The law has expressly provided for relief by mandamus, but this proceeding does not come within the scope of any of the provisions pertaining to this remedy. C. P. Art. 829, et seq; Fix vs. Heriou, 29 Ann. 850.
It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that the mandamus be refused, at the cost of the relatrix.