Byrne v. Commercial Security Co.

• Citation: 7 La.App. 667
• Decision Date: 12 March 1928
• Docket Number: 10,146
• Court: Court of Appeal of Louisiana (US)
• Parties: BYRNE v. COMMERCIAL SECURITY CO

7 La.App. 667

BYRNE v. COMMERCIAL SECURITY CO

No. 10,146

Court of Appeals of Louisiana, Orleans

March 12, 1928

Appeal from the Civil District Court, Division "E". Hon W. H. Byrnes, Judge

Action by Mrs. Harry H. Byrne against Commercial Security Co., Ltd.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

James B. Rosser, Jr., of New Orleans, attorney for plaintiff appellant.

W Winans Wall, of New Orleans, attorney for defendant appellee.

OPINION

CLAIBORNE, J.

Plaintiff sues for the nullity of a tax sale. Her suit was filed June 4th, 1924.

She alleges that she is the owner in actual physical possession of a lot of ground with the improvements thereon situated in this city in the square bounded by Melpomene, Thalia, Constance and Annunciation streets, measuring 31'11"5"' front on Melpomene by 136' deep on the side line towards Constance street and about 117'6" deep on the other side line towards Annunciation street by 36'1"6"' wide on the rear line, according to a sketch of L. Fremaux, Surveyor, dated April 29th, 1869, purchased by her from Widow Thomas Butz by act of Wm. J. Castell dated June 7th, 1884, Reg. C. O. Bk. 118, p. 609.

That the Commercial Security Company, defendant herein, claims to be the owner of said property for having purchased the same at a sale made by the state tax collector on August 7th, 1920, for the state tax of 1919 assessed in the name of Mrs. Thomas Butz according to an act before John P. Sullivan dated October 22nd, 1920, registered in the conveyance office on the same day in book 325, p. 475.

It thus appears that this suit was filed by the owner against the purchaser at tax sale three years, seven months and twelve days after the registry of the tax sale in the conveyance office.

The plaintiff further alleges that said act of sale is null for the two reasons: "1st, that the notice required by the constitution and laws of the state then in force were not given her preceding said tax sale, and 2nd, that said tax sale was not advertised for thirty days as required by the laws of the state".

She prays for judgment in her favor annulling said tax sale.

The defendant admitted that it was the owner of the property for having purchased it at tax sale as alleged, but denied all the other allegations of the petition.

Further answering defendant alleged that since the tax sale and the registry of the act of sale it has had possession of the property and that plaintiff has been entirely without any possession thereof and therefore plaintiff's suit is barred by the prescription of three years under the constitution of this state, and it prays for the dismissal of the suit.

By a supplemental petition plaintiff alleged that her property was illegally assessed in the year 1919 in the name of "Mrs. Thos. Butz", who was not then the owner thereof.

The defendant filed a general denial to this supplemental petition.

There was judgment in favor of defendant, rejecting plaintiff's demand.

The plaintiff moved for a new trial on the ground of newly discovered evidence. The new trial was refused. The newly discovered evidence consisted in the testimony of six witnesses "that after the fall and the removal of the old fence erected on the lot facing Melpomene street, between Annunciation and Constance streets, in this city, being the property in controversy herein, by Mrs. Mary Creigh Byrne, plaintiff herein or her authors in title, that the said property remained unenclosed from the time of the spring of 1918, until a fence was built across the front of said lot in the spring or summer of 1923 (one of said witnesses, Mrs. Lotz, fixing the time in June or July of the year 1923), and that said fence fell or was torn down by boys of the neighborhood, or another fence was erected across the front of said lot and same is unenclosed in front at the present time; the witness, Dr. B. F. Gallant, will testify that he caused a fence consisting of five posts and five boards about six or seven feet in height to be erected across the front of said lot in July, 1923, that said fence was standing in September, 1923, when St. Luke's Private Sanitarium was sold and he removed from that neighborhood; that the witnesses, Mrs. V. T. Crawley and Mrs. Margaret O'Brien Collins, will corroborate the above testimony of Dr. Gallant".

The new trial was refused, and rightly so. It was based upon the assumption that the plaintiff, the purchaser at tax sale, must show possession in himself in order to avail himself of the prescription of three years, an assumption which was not warranted by Article 233 of the Constitution of 1898 and the numerous decisions of our Supreme Court interpreting the article.

The defendant appealed.

The testimony of Mr. Sol Weiss, agent and attorney of the plaintiff, establishes that he caused the improvements on the lot to be demolished and the materials and debris removed in November, 1917.

The attorney for plaintiff herein testified that he visited the lot the day before the trial of this case. He said: "The lot is enclosed on three sides by fences, that is, two side lines and the rear, no fence in front; * * * there is nothing on the lot in the way of any buildings or sheds." He further stated "that after the decay of the old fence on the front of the lot in controversy, that the only other fence that was ever erected on the front of said lot was a fence erected by Dr. B. F. Gallant, and that there was no fence on the front of said property on October 20th, 1924, nor is there now any fence on the front of said property". He further stated that he expected to prove by the witness, Mrs. Collins, that the only fence erected on the front of said lot after the disappearance of the old fence erected by Mrs. Byrne or her authors in title was the fence erected by Dr. B. F. Gallant, while operating the sanitarium at the corner of Annunciation and Melpomene streets which immediately adjoins the lot in controversy."

L. E. Konrad, president of defendant company, testified that he visited the lot immediately after the tax sale to it, there was no fence in front, it was vacant; he had a fence built upon the front twice; there were property fences on the other sides.

Philip G. Veith is employed by the witness, Konrad; he takes charge of properties bought by him for taxes; he saw this lot right after the sale; it was vacant; he caused a rail fence to be built in front of the lot; he put up sale signs upon the lot several times; defendant paid the city taxes for the years 1918, 1919 and 1922.

J. A. Bloom put up a rail fence in front of the lot in 1921 for defendant; there was nothing on the lot, no front fence; it was a vacant lot.

Article 233 of the constitution of 1898 provided that: "No sale of property for taxes shall be set aside for any cause except on proof of dual assessment, or of payment of the taxes for which the property was sold prior to the date of sale, unless the proceeding to annul is instituted within three years from the date of recordation of the tax deed as to sales made hereafter, if no notice is given."

The decisions affirming the validity of this article have too firmly imbedded the jurisprudence on this point to be disturbed at this late day, beginning with the leading case of Ashley vs. Bradford decided by Judge Blanchard in 1902 and reported in 109 La. 641, whether the formalities of the law preceding the tax sale were complied with or not.

The illegalities of the tax sale charged by plaintiff are three: want of notice, want of sufficient advertisement, and assessment in name of a person not the owner.

The want of notice was the defect in the following cases: In re Lockhart, 109 La. 740, 33 So. 753; Terry vs. Heisen, 115 La. 1070, 40 So. 461; Little River Lumber Co. vs. Thompson, 118 La. 284, 42 So. 938; Holland's Heirs vs. Southern State Land & Timber Co., 124 La. 406, 50 So. 436; In re Quaker Realty Co., 127 La. 208, 53 So. 526; In re Valloft, 127 La. 208; Canal-Commercial Trust & Savings Bank vs. Employers' Liability Assur. Corporation of London, Eng., 155 La. 720,--South. 542; Griffing vs. Taft, 151 La. 442, 91 So. 832; Winn Parish Bank vs. White Sulphur Lumber Co., 133 La. 282, 62 So. 907; Page vs. Loeffler, 146 La. 890, 84 So. 194; Atchafalaya Land Co. vs. Williams Cypress Co., 146 La. 1047, 84 So. 351; Hart Land & Improvement Co. vs. Kelly's Heirs, 145 La. 350, 82 So. 366.

The want of advertisement in the following cases: Holland's Heirs vs. So. States Land & Timber Co., 124 La. 406, 50 So. 436; Grandchampt vs. Administrator of Succession of Billis, 124 La. 117, 49 So. 998; Griffing vs. Taft, 151 La. 442, 91 So. 832.

Assessment, in the name of one not the owner in the following cases: Ashley Co. vs. Bradford, 109 La. 641, 33 So. 634; In re Lockhart, 109 La. 740, 33 So. 753; Corkran Oil & Develop. Co. vs. Arnaudet, 111 La. 563, 35 So. 747; Terry vs. Heisen, 115 La. 1070, 40 So. 461; Crillen vs. New Orleans Terminal Co., 117 La. 349, 41 So. 645; Little River Lumber Co. vs. Thompson, 118 La. 284, 42 So. 938; Lavedan vs. Choppin, 119 La. 1056, 44 So. 886; Holland's Heirs vs. Southern State Land, 124 La. 406, 50 So. 436; In re Quaker Realty Co. (In re Valloft), 127 La. 208, 53 So. 526; Norgress vs. E. B. & S. P. Schwing, 128 La. 1040, 55 So. 667; Quaker Realty Co. vs. Purcell, 134 La. 1022, 64 So. 894; Griffing vs. Taft, 151 La. 442, 91 So. 832; Manade vs. Brown, 146 La. 888, 84 So. 170; Atchafalaya Land Co. vs. Williams Co., 146 La. 1047, 84 So. 351; Hart Land & Imp. Co. vs. Kelly's Heirs, 145 La. 350, 82 So. 366.

Also Corkran Oil & Dev. Co. vs. Arnaudet, 111 La. 563, 35 So 747; Armstrong vs. Progressive Realty Co., 128 La. 727, 55 So. 334; Griffing vs. Taft, 151 La. 442, 91 So. 832; 1 Orl. App. 99-213-229; 2...