Cobbs v. Jackson, 8452
| Decision Date | 02 February 1956 |
| Docket Number | No. 8452,8452 |
| Citation | 85 So.2d 368 |
| Parties | James J. COBBS, Plaintiff-Appellee, v. Robert B. JACKSON et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Godfrey & Edwards, Many, for appellants.
Pickett & Pickett, Many, for appellee.
This is a petitory action in which plaintiff seeks the correction of an erroneous tax assessment for the year 1932 of 40 acres of land in Sabine Parish, Louisiana, as well as the correction of the advertisement and adjudication thereof to the State of Louisiana and a patent subsequently issued by the State of Louisiana to plaintiff, James J. Cobbs. He asserts ownership of the property and accordingly prays that he be so decreed and recognized and as such entitled to the full and undisturbed possession thereof.
The material facts may be briefly stated. Mrs. Jane Kirkpatrick acquired by deed dated January 9, 1920, and duly recorded in the Conveyance Records of Sabine Parish, Louisiana, the NW 1/4 of the NW 1/4 and the N 1/5 of the SW 1/4 of the NW 1/4, Section 6, Township 8 N., R. 10 West, Sabine Parish, Louisiana. From 1920 to, and including, 1931, the property was properly assessed by its true description. However, on the assessment rolls for 1932 the property was assessed and described as the NE 1/4 of the NE 1/4 and the N 1/5 of the SE 1/4 of the NE 1/4 of said section, township and range. The taxes on this property under that assessment were not paid. Of the property described in the assessment of 1932 the NE 1/4 of the NE 1/4 was owned by the Fannie Penn Estate and the N 1/5 of the SE 1/4 of the NE 1/4 was owned by J. I. Wynn, both of whom paid their taxes in January, 1933. The taxes were never paid under this assessment, or on the property actually owned by Mrs. Kirkpatrick for 1932. Accordingly, on October 21, 1933, as evidenced by an instrument or deed to that effect, duly recorded in the Conveyance Records of said Parish, an adjudication under this assessment was made to the State of Louisiana.
Plaintiff, with the intention of making application for a homestead entry on the Jane Kirkpatrick land, established his residence thereon and moved his family on this property during 1947, since when he has continued to occupy this property as his home. He has improved the property by clearing and cultivating a portion of the land, by erecting fences and building additional rooms to a small house which was already on the property. He moved on the property that was actually owned by Mrs. Kirkpatrick at the time the assessment was made. That was the only property owned by Mrs. Kirkpatrick in Sabine Parish, or in Ward 4 of said Parish.
In due course, under date of October 2, 1953, a patent was issued by the State to plaintiff wherein the property was described as originally set out in the assessment, advertisements and adjudication to the State. This patent was filed for record and duly recorded in the Conveyance Records of that Parish.
The defendants at interest are the heirs of Mrs. Jane Kirkpatrick; Robert B. Jackson, Tax Assessor; T. M. Phillips, Sheriff and Ex-Officio Tax Collector, and Ellen Bryan Moore, Register of the State Land Office. As to these officials issue was joined by the filing of their pro forma answers. The other defendants, the heirs of Mrs. Kirkpatrick, first filed exceptions of no cause and of no right of action, which were referred to the merits, and, in their answer, alleged that the tax sale referred to in plaintiff's petition was null and void and without force or effect so far as the NW 1/4 of the NW 1/4 and the N 1/5 of the SW 1/4 of the NW 1/4, Section 6, Township 8 North, Range 10 West is concerned, because the tax sale did not reasonably identify that property, and, further, that they received no notice of such sale and were without knowledge thereof.
In reconvention, defendants asserted ownership of said property and prayed that said tax sale be decreed null and void and that they be decreed the true and legal owners of said property and entitled to the possession thereof.
Plaintiff then filed a plea of estoppel, alleging that defendants are barred and precluded from contesting the correctness of the assessment inasmuch as neither they nor Mrs. Kirkpatrick rendered their property for assessment and complied with the requirements of Section 3 of Act 182 of 1906, as amended, LSA-R.S. 47:1956.
Plaintiff additionally filed a plea of three and five years' peremption under Section 11, Article 10, of the Constitution of Louisiana of 1921-LSA. Both pleas were referred to the merits, and after trial on the merits the court sustained plaintiff's plea of peremption, and, accordingly, decreed plaintiff the owner of said property and as such entitled to the possession thereof.
From the judgment thus rendered and signed, defendants, the heirs of Mrs. Jane Kirkpatrick, appealed. Plaintiff has not answered the appeal.
The issues can be restricted to one, that as to the adequacy and sufficiency of the tax adjudication to reasonably identify or describe the property. If the tax deed is sufficient in this respect, although improper or erroneous, the jurisprudence is well settled that the plea of peremption would be applicable and was correctly sustained in this case. On the contrary, if the property was so inadequately described to the extent that the property cannot be located or identified, the plea of peremption would be inapplicable and could afford no relief to plaintiff. The assessment sheet, page 4, designated 'Ward 4 Non-Res.' for 1932 shows this assessment under No. 78 and the name and address of taxpayer as 'Kirkpatrick, Mrs. Jane, Boyce, La.'; number of acres, '48'; description of the property, 'NE 1/4 of the NE 1/4, N 1/5 of the SE 1/4 of the SE 1/4, Sec. 6-8-10; Wd. 24 acres 96; C-O acres 96'. Then follows the actual cash value of $192 for assessment purposes and the amount of taxes. 'Wd.' evidently refers to woodland of 24 acres having an assessed value of $96, and 'C-O', to cut-over lands, 24 acres, likewise of a value of $96, or a total of $192.
LSA-R.S. 47:2181 provides for the advertisement and sale of property for delinquent taxes. This section, in part, provides:
'For the purpose of tax sales it shall be sufficient to advertise all property in the name of the person or persons, whether dead or alive, who at the time the assessment was made appeared to be the owners thereof upon the books of the conveyance office in the parish of Orleans, and of the recorder's office in the other parishes of the state.
'For the purpose of tax sales it shall be sufficient to assess and describe all property assessed in the following manner: by designating the tract or lot by the name by which it is commonly known, or by the number or letter by which it may be usually designated upon the regular assessment rolls or upon an official or private plan or sketch or by giving the boundaries or the names of the owners upon each side, or by the dimensions or description or name given in the act translating the ownership thereof, or by such other further description as may furnish the means of reasonable identification.
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'No tax sale shall be set aside or annulled for any error in description or measurement of the property assessed in the name of the owner provided the property sold can be reasonably identified. * * *' (Emphasis supplied.)
Title 47, Section 2184, of the LSA-Revised Statutes also provides:
(Emphasis supplied.)
It is apparent that the property of Mrs. Jane Kirkpatrick was erroneously assessed by an incorrect description. That this was a clerical or typographical error was established by the testimony of Robert B. Jackson, who has been Tax Assessor of Sabine Parish since January 1, 1921. The property described in the erroneous assessment was owned by third parties, the taxes upon which were paid during January, 1933. According to the assessor's testimony, no rendition of assessment was made by Mrs. Kirkpatrick for the year 1932 or for any years immediately preceding that date.
First for consideration is the inadequacy of the description of the property alleged as the ground for absolute nullity of the adjudication. Plaintiff contends, however, that this is barred as a ground of nullity by the peremptive provisions of the Constitution under the well established and recognized rule of law that if the description of the property in the assessment or the tax deed, although erroneous and improper, is reasonably sufficient to identify the property or to furnish the means for identification, the peremptive provisions of the Constitution apply and the tax sale or adjudication is not subject to attack. There are numerous cases in our jurisprudence which have recognized and applied the above rule of law. The Supreme Court has held that even the State or one of its subdivisions may plead the peremption established by the Constitution in a suit to annul a tax sale instituted more than five years after the recordation of the tax deed. See Westover Realty Co., Inc., v. State, 208 La. 163, 23 So.2d 33. The...
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