Edmiston v. Tulane Investment Co.

• Decision Date: 13 August 1928
• Docket Number: 10,359
• Citation: Edmiston v. Tulane Investment Co., 9 La. App. 112, 119 So. 75 (La. App. 1928)
• Court: Court of Appeal of Louisiana — District of US
• Parties: EDMISTON v. TULANE INVESTMENT CO. ET AL

119 So. 75

9 La.App. 112

EDMISTON v. TULANE INVESTMENT CO. ET AL

No. 10,359

Court of Appeals of Louisiana, Orleans

August 13, 1928

Rehearing Refused September 4, 1928.

Appeal from Civil District Court, Div. "C."Hon. E. K Skinner, Judge.

Action by Sam V. Edmiston against Tulane Investment Co. et al.

There was judgment for plaintiff and defendants appealed.

Judgment amended and affirmed.

F Rivers Richardson, of New Orleans, attorney for plaintiffappellee.

Joseph A. Morales, of New Orleans, attorney for defendants, appellants.

OPINION

CLAIBORNE, J.

This is a suit to annul a tax sale.

The plaintiff alleged that he was the owner of the following described property:

"A lot of ground in the Third District of this city in the square No. 1100 bounded by Andry, Egania, Galvez and Miro Streets designated by the No. 23 and measuring 31 feet front on Andry Street by 122 feet deep."

Being the same property purchased by plaintiff at a sale for a tax due the State for the year 1920, assessed in the name of F. P. Norris, by an act before John P. Sullivan, notary, dated April 20, 1922, Reg. C. O. Bk. 353, p. 13, on April 24, 1922.

That the said Rev. T. P. Norris purchased said lot from the Andry Realty Co. by an act under private signature dated November 10, 1919, Reg. C. O. Bk. 312, p. 159.

That the defendant, the Tulane Investment Company, also claims to have purchased said property at a sale made by the City of New Orleans for the tax of 1921, assessed in the name of Rev. T. P. Norris, by an act before P. D. Olivier, notary, dated July 15, 1922, Reg. C. O. Bk. 350, p. 430, on July 18, 1922.

That the Tulane Investment Company transferred said property to the Galvez Realty Company on January 12, 1923, by act Reg. C.O. Bk. 358, p. 448.

That the act of sale made to the Tulane Investment Company is an absolute nullity "for want of notice to plaintiff, of the proposed tax sale," as plaintiff was the duly registered owner of the property at the time of the city tax sale, and that the sale of said property without notice to plaintiff was an absolute nullity; that plaintiff offered to pay the Tulane Investment Company and the Galvez Realty Company the amount paid by it at the city tax sale with interest and all other taxes paid by it on said property which they refused to accept.

Plaintiff therefore prayed to be recognized as the owner of the above mentioned property, and that the city tax sale to the Tulane Investment Company by act before P. D. Olivier, notary, dated June 15, 1922, and the transfer by the Tulane Investment Company to the Galvez Realty Company, dated January 12, 1923, be declared null and the registry thereof in the conveyance office be cancelled and erased.

Therefore we have before usthe plaintiff who has purchased a lot of ground at a sale made for State taxes of 1920 in the name of Rev. F. P. Norris by act dated April 20, 1922, and the defendants the Galvez Realty Company, which acquired from the Tulane Investment Company on January 12, 1922, and the Tulane Investment Company which purchased on June 15, 1922, two months later than the plaintiff, at a sale made by the City of New Orleans for taxes of 1921, and the charge made by the plaintiff that the city tax sale to the Tulane Investment Company is an absolute nullity for want of notice of sale to the plaintiff who was the registered owner since April 12, 1922, prior to and at the time of the city tax sale.

The defendant pleaded the prescription of three years.

This suit was filed June 16, 1925, and service of citation accepted same day.The actual tax sale was made to the Tulane Investment Company on June 15, 1922, but was registered only on July 12, 1922.

Therefore this suit was filed and service accepted less than three years prior to the "recordation of the tax deed."The prescription of three years does not run from the date of the tax sale but "from the date of the recordation of the tax deed."

SeeSec. 11, Art. 10, p. 86, of the Constitution of 1921.Byrne vs. Commercial Security Co.,7 La.App. 667.

The plea of prescription cannot therefore prevail.

Further answering the defendants plead that plaintiff is estopped from attacking the sale made by the City on July 18, 1922, for the city taxes of 1921 for the reason that the plaintiff stood by and permitted the City to sell the property.

There is nothing to show that the plaintiff had knowledge of the intention of the City to sell the property or that he was present at the sale.The authorities quoted by the defendants in support of their proposition are not in point.

The defendants further plead that the failure of the plaintiff to pay all taxes due on the property at the date of their acquisition left him without any title.They rely upon ten cases.But all of them are applications of the Acts 96 of 1882 and 82 of 1884 commonly known as the "Iron Clad" Acts, which created special legislation.West vs. Negrotto,52 La.Ann. 381, 27 So. 75;Lyons vs. Fitzpatrick,52 La.Ann. 697, 27 So. 110;Martinez vs. State Tax Collector,42 La.Ann. 677, 7 So. 796; Acts 85 of 1888, and the acts amendatory thereof, including Act 170 of 1898 under which the State tax sale to the plaintiff was made, did not require him to pay all taxes due as a condition precedent to the validity of his tax title.

The copy of what should have been the notice of sale to "Rev. Timothy P. Norris" bears upon its face the return "Service."This return is corroborated by testimony that Norris no longer lived in New Orleans but had removed to Bastrop.

Sec. 11 of Article X of the Constitution provides that the tax collector shall give notice "to the delinquent in the manner provided by law."

A tax sale without notice to the owner is null.7 La. Dig. p. 121, S. 281;Kivlen vs. Horvath,163 La. 901, 113 So. 140.

The defendant recovered judgment for the City and State taxes paid by them, and for the cost of the act of sale and copy thereof, aggregating $ 29.37 with ten per cent per annum interest from the payment thereof.They claimed, besides, the cost of alleged fences put up by them around the lot, and $ 2.50 for State and City tax research certificates and $ 25 for a survey to locate the lot.

The last three items were not legally due.

The amount spent by defendants to erect the fence around the lot was not allowed, for reasons which do not appear in the record.

It has been decided that a party who has purchased a lot of ground at a tax sale and is afterwards evicted on account of irregularity in the proceedings, is entitled to recover the value of the improvements made by him.Gernon vs Handlin,19 La.Ann. 25;C. C. 508(500);C. C. 3453(3416);Williams, Pinckard & Co. vs. Aroni,35 La.Ann. 1115;Hickman vs. Dawson,35 La.Ann. 1086;Eldridge vs. Tibbitts,5 La.Ann. 380;Barrow vs. Wilson,39 La.Ann. 403, 2 So. 809;Wederstrandt vs. Freyhan,34 La.Ann. 705;Walsh vs. Harang,48 La.Ann....