Boagni's Heirs v. Thornton

• Decision Date: 12 July 1961
• Docket Number: No. 267,267
• Citation: 132 So.2d 494
• Parties: HEIRS OF E. M. BOAGNI, Plaintiffs and Appellants, v. Samuel A. THORNTON, Jr., et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 494

132 So.2d 494

HEIRS OF E. M. BOAGNI, Plaintiffs and Appellants, v. Samuel A. THORNTON, Jr., et al., Defendants and Appellees.

No. 267.

Court of Appeal of Louisiana, Third Circuit.

July 12, 1961.

Rehearing Denied Sept. 7, 1961.

Certiorari Denied Oct. 11, 1961.

John D. Edwards, Lawrence B. Sandoz, Jr., Opelousas, Liskow & Bond, Lake Charles, for plaintiffs-appellants.

Lewis & Lewis, by John Shaw, Seth Lewis, Sr., W. C. Perrault, Opelousas, Melvin Evans, Robert Rees, New Orleans, for defendants-appellees.

Before TATE, HOOD and CULPEPPER, JJ.

HOOD, Judge.

This is an action to establish title to a 40-acre tract of land situated in St. Landry Parish. Plaintiffs are the heirs, legatees or assignees of Edward M. Boagni, deceased, and defendants are the heirs and assigns of John H. Harmanson, also deceased. The trial court rendered judgment sustaining an exception of no cause of action filed by defendants, and from this judgment plaintiffs have appealed.

At the time this suit was instituted and decided, the law provided that where two or more persons lay claim to land by recorded title, and where neither of the claimants is in actual possession of the land so claimed, either may maintain an action to establish title. LSA-R.S. 13:5062. The earlier jurisprudence required that in such an action plaintiff must allege and prove a better title than that of defendant. Metcalfe v. Green, 140 La. 950, 74 So. 261; Ellis v. Louisiana Planting Co., 146 La. 652, 83 So. 885; and Doiron v. Vacuum Oil Co., 164 La. 15, 113 So. 748. The more recent jurisprudence holds that in an action of this type the plaintiff is required to allege and to prove a valid title in himself, as in a petitory action. Dugas v. Powell, 197 La. 409, 1 So.2d 677; Stockstill v. Choctaw Towing Corp., 224 La. 473, 70 So.2d 93 and Albritton v. Childers, 225 La. 900, 74 So.2d 156. See also comments under LSA-C.C.P. Article 3653.

All well pleaded facts contained in plaintiffs' original and supplemental petitions, as well as facts established by documents filed by plaintiffs in response to a prayer for oyer, must be accepted as true in determining the issues presented by the exception of no cause of action filed herein. Carruth v. Hollister, 198 La. 212, 3 So.2d 592; French v. Querbes, 200 La. 654, 8 So.2d 631; Roy O. Martin Lumber Co., Inc. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257. The following is our understanding of the pertinent facts, as alleged by plaintiffs and as reflected in said documents.

By tax deed dated August 31, 1904, the subject property was sold to John H. Harmanson for unpaid taxes due for the year 1903, under an assessment in the name of Viguet Hebert. No issue is raised in this suit as to the validity of that tax sale.

By tax deed dated May 26, 1905, the same property was adjudicated to the State of Louisiana for unpaid taxes due for the year 1904, under an assessment in the names of J. F. and Verguet P. Hebert. No irregularity or defect in this adjudication is alleged by plaintiffs in their original or supplemental petitions, but the validity of that sale is attacked in a motion for a new trial or rehearing filed by plaintiffs after judgment had been rendered sustaining the exception of no cause of action.

By deed dated September 10, 1906, John H. Harmanson sold and conveyed an undivided one-half interest in and to this tract of land to John A. Thornton. Some of the defendants are heirs and assigns of the said John H. Harmanson, deceased, and other defendants are heirs and assigns of John A. Thornton, also deceased.

In spite of the fact that the property was adjudicated to the State for unpaid taxes due for the year 1904, the property for some unexplained reason was assessed to John H. Harmanson for the years 1905 to 1910, inclusive, and the taxes due under those assessments were timely paid each year.

On June 18, 1912, the property was sold for unpaid taxes due for the year 1911 (under an assessment to Harmanson), and Edward M. Boagni bought the property at that tax sale. Plaintiffs, as has been stated, are the heirs, legatees and assignees of the said Edward M. Boagni, deceased, and their claim of ownership depends upon the validity of this tax sale.

The land was assessed to Harmanson for the year 1912, and to 'Est. E. M. Boagni' for the years 1913 to 1944, inclusive. All state and parish taxes due on the property since 1912 have been paid by plaintiffs or by their author in title, Edward M. Boagni.

On May 28, 1945, Carl Gramann, acting as agent for defendants, redeemed this property from the State (it having been adjudicated to the State for unpaid 1904 taxes). The certificate of redemption properly recites that the 'property is redeemed to said J. F. & Viguet P. Hebert against whom or which said taxes were assessed.' In order to effect this redemption, Gramann filed as proof of payment of all taxes due for the years 1905 through 1944, a certificate of the Sheriff and Ex-Officio Tax Collector for St. Landry Parish, that 'Parish, local and state taxes for the years 1905 through 1912 has been paid in the name of John H. Harmanson, state, parish and local taxes for the years 1913 through 1944 has been paid in the name of Est. E. M. Boagni.'

Plaintiffs contend that their ancestor-in-title, Edward M. Boagni, acquired a valid title to this property by the tax deed dated June 18, 1912. Defendants, on the other hand, contend that their ancestor-in-title, John H. Harmanson, acquired a valid title to this property by the tax deed dated August 31, 1904, and that the 1912 tax deed to Boagni is an absolute nullity because at the time of that tax sale title to the property was vested in the State of Louisiana, and accordingly the property could not legally be sold for taxes.

The trial judge did not assign written reasons for judgment, but since he maintained the exception of no cause of action filed by defendants, he apparently concluded that the tax deed to Boagni, dated June 18, 1912, was null and void, and accordingly that plaintiffs have failed to allege a valid title in themselves.

At the time Edward M. Boagni purportedly acquired this property by tax sale, the constitution provided that 'all public property' shall be exempt from taxation. Const.1898, Art. 230; See also, LSA-Const.1921, Art. 10, Sec. 4. Also, the law relating to the assessment of property and the collection of taxes at that time provided 'Section 61. Be it further enacted, etc., That after property has been adjudicated to the State in default of a bidder, as provided in Section 53, the same shall be continued to be assessed in the name of the person to whom it belonged at the date of the sale until the lapse of one year from date of recording the Act of Sale to the State, but the Tax Collector shall not sell the same under the assessment and no tax shall be collected or received thereon by the Tax Collector of or from the former owner while said property remains in a condition of forfeiture to the State and said continued assessment or any erroneous assessment to the former owner thereafter made and no error of the tax collector in receiving taxes under said continuous assessment or other erroneous assessment and non continued possession of said property by said former owner shall ever be considered or construed by any court of this State as an estoppel of the State from claiming said property or as affecting in way the title of the State to said property or its rights to possession thereof.' (Acts 1898, No. 170, Sec. 61, as amended by Acts 1910, No. 315. See also LSA-R.S. 47:1955.)

Under the provisions of the constitution and statutes which were in effect at the time of the 1912 tax sale, therefore, public property was exempted from taxation, and the Tax Collector was prohibited from selling property for unpaid taxes after that property had been adjudicated to the State and while it remained in a condition of forfeiture.

The jurisprudence of this State is established to the effect that where property has been adjudicated to the State, and has not been redeemed in the time and manner provided by law, the taxing officers of the State are without authority to assess and sell the property as belonging to the former owner or any other person. Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225; Neal v. Pitre, 142 La. 737, 77 So. 582; Winn Parish Bank v. White Sulphur Lumber Co., 133 La. 282, 62 So. 907; Guidry v. Sigler, La.App. 1 Cir., 21 So.2d 232 and Board of Commissioners, etc. v. Concordia Land & Timber Co., 141 La. 247, 74 So. 921; Thomas v. Bomer-Blanks Lumber Co., La.App. 1 Cir., 105 So.2d 299; Johnson v. Chapman, La.App. 2 Cir., 179 So. 466, reversed on other grounds, 190 La. 1034, 183 So. 285.

The facts in Waterman v. Tidewater Associated Oil Co., supra, were similar to those presented here. In that case plaintiffs contended that their author in title acquired the property in dispute by tax deed dated Cotober 1, 1921, for unpaid taxes due for the year 1920. Defendants contended that this tax sale was an absolute nullity for the reason that the property under the same description had previously been adjudicated to the State on September 25, 1920, under an assessment in another name for unpaid taxes due for the year 1919. The Court, in holding that the tax sale, dated October 1, 1921, was a nullity, said:

'With these facts before us, it is patent that the Tax sale of 1921 is void as it is well established that, where property has been adjudicated to the State and not redeemed in (the) time and manner provided by (the) statute, the taxing officers of the State are without power to assess and sell the property as belonging to the former owner or any other person.' (213 La. 588, 35 So.2d 235.) (Emphasis added.)

In the more recent case of Thomas v. Bomer-Blanks Lumber Co., supra, the Court of Appeal, First Circuit, said:

'The plaintiff's contention that the 1925 tax sale to Arthur Neal Smith is an absolute nullity...