Fleckinger v. Smith, 6557

• Decision Date: 15 May 1975
• Docket Number: No. 6557,6557
• Citation: 319 So.2d 881
• Parties: Doris C. FLECKINGER v. Mrs. Mae Anna Sendker Smith, wife of Leon M. SMITH, Deceased, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 881

319 So.2d 881

Doris C. FLECKINGER v. Mrs. Mae Anna Sendker Smith, wife of Leon M. SMITH, Deceased, et al.

No. 6557.

Court of Appeal of Louisiana, Fourth Circuit.

May 15, 1975.

On Rehearing Oct. 9, 1975.

Writ Refused Nov. 21, 1975.

Ponder, Duke & Richardson, Metairie (John D. Ponder, Charles, L. Duke and Lamar Richardson, Jr., Metairie), for plaintiff-appellant.

Charles E. McHale, Jr., New Orleans, for defendants-appellees.

Before SAMUEL, GULOTTA, SCHOTT, MORIAL and BEER, JJ.

SCHOTT, Judge.

This case involves title to two lots in Bridgedale Subdivision in Jefferson Parish. Plaintiff brought suit to confirm and quiet her title in the form of a land patent issued by the State of Louisiana on September 20, 1957, and registered in the Parish Conveyance Office on October 30, 1957. Defendants are the widow and heirs of Leon Smith and the assigns of Jacob Koch as to their title to the lots. They answered claiming title by virtue of a sale from Mrs. Elizabeth Freida Sissung Koch to Mr. and Mrs. Leon Smith dated July 15, 1954, and a tax redemption certificate issued by the State of Louisiana to Jacob Koch and his assigns on December 13, 1954, registered in the Conveyance Office on December 14, 1954. Defendants also filed a reconventional demand praying that plaintiff's patent be declared an absolute nullity and that she be enjoined from asserting any further interest in the property.

Both parties moved for judgment based on the pleadings, and after the submission of appropriate documents and oral argument, the trial court rendered judgment against the plaintiff cancelling her deed to the property and enjoining her from asserting any interest in the property. Plaintiff has appealed from that judgment.

The relevant facts are undisputed. In 1931 Jacob Koch acquired title to the two lots. On November 13, 1937, these lots were adjudicated to the State for nonpayment of 1936 state taxes assessed in Koch's name. On October 13, 1939, the lots were again adjudicated to the State for nonpayment of 1938 state taxes, still assessed in Koch's name. Koch died, and on July 12, 1954, a judgment of possession was rendered recognizing Mrs. Elizabeth Sissung Koch as the owner of the lots. Three days later, on July 15, 1954, Mrs. Koch sold the lots to Mr. and Mrs. Smith, the present defendants. Certificates were waived by the purchasers. On December 13, 1954, Smith effected the redemption of the property under the adjudication to the State of Louisiana for 1938 state taxes and was issued the certificate of redemption relied on by defendants.

Almost three years later, on July 17, 1957, plaintiff purchased the lots at a Sheriff's Sale conducted pursuant to LSA-R.S. 47:2189 for the unpaid 1936 state taxes. On September 20, 1957, pursuant to the same statute, the State Land Office issued the patent sought by plaintiff to be confirmed in this suit.

In deciding the case for defendants the trial judge gave the following reasons:

'Plaintiff's principal contention is that the second adjudication of the property to the state in 1939 was an absolute nullity in light of the fact that the property had already been adjudicated to the state in 1937. Thus, any redemption of the latter adjudication would also be without legal effect and the defendant's claim to the property would therefore, be inferior to that of the plaintiff's, which is based upon a redemption of the earlier adjudication.

'This court believes that the law governing the issues in this case is set out most clearly in the case of Johnston v. Nanney, 244 La. 959, 155 So.2d 196 (1963).

'The Court, in Nanney (supra), was concerned with two adjudications of a piece of property to the state for nonpayment of taxes and the subsequent sale of that one piece of property to two different owners. In determining which redemption was valid, the court stated:

'As was very aptly observed by the trial judge, at the time the redemption certificate was issued the State Land Office had a record and knew that the land had been adjudicated to the State for the unpaid taxes of 1930 and it is therefore charged with the knowledge that the second adjudication of the land to the State in 1932 was without effect, hence the only valid title the State had to these lands was the one made to it in 1931 for the unpaid taxes of 1930 and to release that claim it was only necessary to pay one year's taxes under Act 47 of 1938, and when the redemption thereof was timely made, as it was here, then all subsequent taxes, including those for 1931 were waived. It necessarily follows then that the issuance of a certificate of redemption by the State Land Office in December, 1938, served to divest the State of such claim and title to the land as it possessed at the time, and the fact that the certificate referred to the taxes which were forfeited to the State in 1931 instead of 1930, in our opinion, does not make the redemption certificate invalid.'

'Based on the above holding, this court finds that the defendants and plaintiffs-in-reconvention are the true owners of the land by virtue of their redemption of the property in December of 1954, some three years before the plaintiff's redemption. The Nanney decision makes it clear that the first party to redeem adjudicated property under the facts as presented in this case gains all of the state's rights to that land. Thus even where the state, through a subsequent oversight, sells the same property to a third party, this will not serve to defeat the original redeemers claim. The fact that said redemption was for the unpaid taxes owed in 1938 rather than 1936 does not, according to Nanney (supra), lessen the claim of defendants to the land.'

We have concluded as did the trial judge that the cited case is controlling. There the property was adjudicated to the state in 1931 for 1930 taxes. The Supreme Court held that the redemption in 1938 for the 1931 taxes was valid and therefore a subsequent adjudication to Nanney in 1940 for the 1939 taxes assessed to and unpaid by the tax debtor conferred a valid title on Nanney. The Court held that a subsequent redemption to Johnston for the 1930 taxes was of no consequence and did not have the effect of conferring title on Johnston.

In the instant case, the property was adjudicated to the state in 1937 for 1936 taxes and again in 1939 for the 1938 state taxes. In 1954 the tax debtor's assigns, defendants, redeemed the property under the adjudication to the state for the unpaid 1938 state taxes and were issued a patent pursuant to LSA-R.S. 47:2189. We have concluded that a valid title was conferred on defendants by virtue of the redemption under the adjudication for the 1938 taxes even though the 1936 taxes were still outstanding and that plaintiff did not acquire valid title when she paid the 1936 taxes and was issued a patent pursuant to the cited statute.

In reaching our conclusion we have considered whether there is such a distinction between Act 47 of 1938 under which the redemption in Johnston was effected, and LSA-R.S. 47:2224 under which the redemption in the instant case was effected which would warrant a different result in the instant case than the one in Johnston.

When these statutes are compared they are identical except that the earlier statute requires the tax debtor to pay only 'the amount of the actual taxes for which said lots or lands were adjudicated to the State,' while the latter statute requires that the tax debtor pay 'the taxes, interests and costs' in order to effect a redemption . Thus, when Johnston redeemed the property for 1931 taxes he was required to pay only that year's taxes; and even had he applied for a redemption of the 1930 taxes also he would only have been required to pay the taxes for one year and not for all of the years intervening between 1930 and 1938 when his redemption was effected. As opposed to that situation, the tax debtor in the instant case was required to pay all taxes when he attempted to redeem the property for unpaid taxes of 1938. But in both instances the statute provided that once the redemption was issued 'such certificate shall . . . be held and taken as evidence of the redemption' of the property.

The Supreme Court's language in Johnston that 'at the time the redemption certificate was issued the State Land Office had a record and knew that the land had been adjudicated to the State for the unpaid taxes of 1930 and it is therefore charged with the knowledge that the second adjudication of the land to the State in 1932 was without effect,' should be equally applicable to the defendants in the instant case. At the time the redemption certificate was issued the State Land office had a record and knew that the land had been adjudicated to the State for the unpaid taxes of 1936, and it is therefore charged with the knowledge that the second adjudication of the land to the State in 1938 was without effect.

The fact that the earlier statute required the payment of only one year's taxes at the time of redemption is of no consequence in the application of the quoted language from Johnston. Johnston effectively redeemed his property under the 1932 adjudication by paying that amount which the legislature then required to be paid and this had the effect of effacing the adjudication for the 1930 taxes. Similarly, the defendants should be held to have effectively redeemed their property when they paid all that was required of them to effect a redemption for the 1938 taxes and that redemption should have effaced the adjudication for the 1936 taxes.

Moreover, in the present statute there is language which has the effect of making the holding in the Johnston case part and parcel of the legislative enactment under R.S. 47:2224. In this statute the following language is found which was not a part of Act 47 of 1938:

'. . . provided, however, that no such certificate of redemption shall be so issued to the person redeeming until and unless all state, parochial, district,...