Johnson v. Chapman

• Decision Date: 30 June 1937
• Docket Number: 5464
• Citation: 179 So. 466
• Court: Court of Appeal of Louisiana — District of US
• Parties: JOHNSON v. CHAPMAN et al

179 So. 466

JOHNSON v. CHAPMAN et al

No. 5464

Court of Appeal of Louisiana, Second Circuit.

June 30, 1937

Affirmed by Supreme Court March 7, 1938.

P. E Brown, of Arcadia, for appellant.

Goff &amp Goff, of Arcadia, for appellees.

TALIAFERRO Judge.

PER CURIAM.

Defendants complain of the judgment herein and, in support of their application for a rehearing, assign errors. Only two of these have merit and the subject-matter involved in each and discussed in our judgment may be clarified without the granting of a rehearing.First. Our decree recognized plaintiff as the owner of an undivided half interest in the S1/2 of NE1/4 of NE1/4, section 18, township 17 north, range 6 west, and ordered canceled from the records the two tax deeds to defendant, conveying this and other lands. It was not our purpose to decree these two tax deeds null and void and order them canceled to the extent of any lands not involved in this suit, and we now reaffirm that purpose.Second. We stated in the judgment that the record did not disclose a dual assessment of this 20-acre tract for the year 1921, for the taxes of which year it was adjudicated to the state under an assessment in the name of D. Chapman. We erred in this. There is evidence in the record disclosing that the land was also assessed but erroneously, we are sure to H. G. Chapman for 1921. In this connection, our judgment contains the following as regards a dual assessment:"The record does not disclose a dual assessment for this year. If such were true and taxes were not paid under either assessment prior to the sale, this would not invalidate the sale made under the correct and proper assessment. Dual assessment, per se, under the Constitution of 1921, is not cause for annulling a tax sale. It was so under the Constitutions of 1898 and 1913."In support of our holding that the tax sales to Hamner for the taxes of 1927 and 1928 were null and void because for said years the state had indefeasible title under the tax sale in the name of D Chapman for the taxes of 1921, we cited Neal v. Pitre et al., 142 La. 737, 77 So. 582; Board of Commissioners v. Concordia Land Company, 141 La. 247, 74 So. 921; Riggs Cypress Company v. Hanson Lumber Company, 127 La. 450, 53 So. 700; In re Quaker Realty Company, 122 La. 229, 47 So. 536.Appellees call our attention to the fact that Neal v. Pitre, supra, was expressly overruled by the Supreme Court in Gamet's Estate v. Lindner, 159 La. 658, 106 So. 22, *471 and that this action of the court was in effect reaffirmed in Stockbridge v. Martin et al., 162 La. 601, 110 So. 828.The other cases cited by us have not been expressly overruled. However, we find in St. Bernard Syndicate v. Grace, 169 La. 666, 125 So. 848, 849, expressions by the court directly in conflict, we think, with what is said by it in the Gamet and Stockbridge Cases. It is said there:"It will be observed that in the section of the statute we have quoted no reference whatever is made to an assessment of property which has been sold to the state as a basis on which to compute the amount to be paid for redemption except for the year following that for which the sale was made. Indeed, there could have been no legal assessment made of the property for the years for which the plaintiff resists payment, and the plaintiff concedes this."The title to the property was in the state, and the state does not assess its own property for taxes."Perhaps the latest action of the Supreme Court which throws light on this question is reflected from the denial by it of a writ in McCall v. Blouin et al., 18 La.App. 717, 138 So. 528, 529. In that case, Judge Westerfield, as the court's organ, said:"It thus appears that following the adjudication of property to the city the law requires it to be assessed in the name of the person to whom it belonged at the date of adjudication for a period of one year, following which the property is to remain in the possession of the city until it shall have been redeemed in the manner pointed out. The fact that the property is continued upon the rolls in the name of the former owner, and taxes under the continued assessment collected, cannot operate as an estoppel against the city in claiming title to property which has not been redeemed, and a sale made under such erroneous assessment is null. See Neal v. Pitre et al., 142 La. 737, 77 So. 582, where it was said:" "The sale of April 28, 1908, was based upon an assessment made in the name of "unknown owners," although at that time the title to the property was in the state. The state's property could not be sold in any such manner. (3)5C" "Being of the opinion then that the tax sale of April 28, 1908, was a nullity, it could vest no title or interest in the property in Lyons or Pitre.' "It will be noted that the Neal v. Pitre, supra, case is cited approvingly, in fact, that decision is relied upon for authority for the court's holding. The Supreme Court, in passing on the application for a writ, said that the judgment, the review of which was sought, was correct. Act No. 315 of 1910, section 5, was adopted for specific purposes. One purpose, at least, was to protect the state against the loss of real estate to which it held good title through tax sales under subsequent assessment of such real estate to the tax debtor or some other person. It is no secret that the state has been often deprived and possibly defrauded of valuable lands by such irregular procedure. The Supreme Court had often held that the state in such circumstances was bound and estopped by the acts of its taxing officers, and upheld the title of the person or persons to whom the land was adjudicated, or their assigns, while the legal title was actually in the state. See Gauthreaux v. Theriot, 121 La. 871, 46 So. 892, 126 Am. St. Rep. 328, and cases therein cited.It seems to us that any decision contrary to Neal v. Pitre, supra, and others cited by us in our opinion does violence to the letter and spirit of the 1910 Act. It will be noted that no reference is made to this act in the opinion in the Gamet Case. We are constrained to think the existence of the act was not called to the court's attention. The act is referred to in the Stockbridge Case, wherein Justice Thompson is the court's organ. However, this latter case is materially modified by what the court said in St. Bernard Syndicate v. Grace, supra.Rehearing refused.

OPINION

This is a petitory action. Plaintiff prays to be decreed the owner of an undivided one-half interest in the south 26 acres of the N. E.1/4 of N. E.1/4 of section 18, township 17 north, range 6 west, situated in Bienville parish, and to be placed in possession thereof. J. D. Chapman, present possessor, and his grantor, W. L. Hamner, are impleaded as defendants.

This land was allotted to Drilla Chapman in the partition of the real and personal property of her father and mother, Dock and Tinie Johnson, on December 24, 1895, according to act recorded in Conveyance Book E, folio 304, of the parish of Bienville. At her death she left two children, viz., J. D. Chapman, defendant, and Pattie P. Chapman, who inherited the land jointly. Pattie lived thereon until her death in April, 1930. She sold her interest therein to plaintiff on January 24, 1930. J. D. Chapman continuously resided on the property and has farmed portions of it to the present time.

For the year 1921, this land with an adjoining tract was properly assessed to D. Chapman (evidently intended for Drilla Chapman). The tracts were adjudicated to the state, after advertisement, etc., on September 2, 1922, for delinquent taxes under this assessment.

For the year 1922, these two tracts, plus another in section 8, were assessed to H. G. Chapman, and on June 16, 1923, were adjudicated to the state by the tax collector. This assessment, as concerns the land sued for, evidently was erroneous, as H. G. Chapman at no time ever owned the land. The register of the state land office so held, as will hereinafter be shown.

The S.1/2 of N. E.1/4 of N. E.1/4 of section 18, township 17 north, range 6 west, with other lands, was again assessed to H. G. Chapman for the year 1927. At tax sale thereunder on June 23, 1928, W. L. Hamner became the purchaser. The assessment was repeated for 1928, and again Hamner became the purchaser at tax sale on June 19, 1929. On January 6, 1932, Hamner sold and conveyed to J. D. Chapman the south 26 acres of the N. E.1/4 of N. E.1/4 of section 18, with another tract included in his tax deeds; and on November 17, 1934, a correcting deed was executed by the parties wherein the above description in the act of sale was changed to read: S.1/2 of N. E.1/4 of N. E.1/4 of section 18. At this juncture we make the observation that of the 26 acres allotted to Drilla Chapman in the partition, 6 acres lie on the north side of S. E.1/4 of N. E.1/4 of section 18. The other 20 acres embrace the S.1/2 of N. E.1/4 of N. E.1/4.

More than two years before this suit was filed, plaintiff advanced to the register of the state land office the required amount of money to redeem the property sold to the state for the taxes of 1921 in the name of D. Chapman, and formal redemption certificate was issued and recorded. At the same time the register issued and signed a certificate wherein it is declared that there was evidence on file in that office disclosing that the tax sale to the state in H. G. Chapman's name on June 16, 1923, for the taxes of 1922, was erroneous, and for this reason said tax sale was declared canceled. The recorder of Bienville parish was directed to cancel the evidence of it on his records.

Plaintiff attacked the two tax deeds to Hamner as being illegal, null and void for the reason that at the time and for the years' taxes made, the state held an indefeasible title to the...