Liquid Carbonic Corporation v. Crow

• Decision Date: 01 May 1933
• Docket Number: 32044
• Citation: 148 So. 442,177 La. 379
• Court: Louisiana Supreme Court
• Parties: LIQUID CARBONIC CORPORATION v. CROW et al

148 So. 442

177 La. 379

LIQUID CARBONIC CORPORATION v. CROW et al

No. 32044

Supreme Court of Louisiana

May 1, 1933

Appeal from Fifth Judicial District Court, Parish of West Carroll C. J. Ellis, Judge.

Suit by the Liquid Carbonic Corporation against Roy Crow and others.From the judgment, plaintiff appeals.

Amended, and, as amended, affirmed.

William H. Cook and L. A. Newsom, both of Shreveport, John R McIntosh, of Oak Grove, and Clifford E. Hays, of Minden, for appellant.

Tobin R. Hodge, of Rayville, for appelleesJ. H. Lusk & Epps Drug Co.

OVERTON Justice.O'NIELL, C. J., concurs in the result.

OPINION

OVERTON, Justice.

On September 3, 1930, plaintiff sold and delivered to the defendantRoy Crow a soda fountain with the appurtenances appropriate for its use.The purchase price of the property was $ 1,929, represented by four promissory notes, payable in installments of $ 40 a month.The notes provide for the payment of interest at the rate of 6 per cent. per annum, and for attorney's fees at 15 per cent. on the principal and interest.The notes contain a clause accelerating their maturity upon failure to pay any one of the installments when due.To secure the payment of the notes, Crow granted to plaintiff a chattel mortgage on the property sold, which was duly recorded.Crow paid only one installment on the notes, defaulting on the next installment, thereby maturing all other installments.

On February 21, 1930, Crow filed a report of his property for assessment with the assessor, in the names of "Mr. and Mrs. Roy Crow."The property reported consisted of real estate, with the improvements thereon, merchandise, store furniture, fixtures, and one automobile.

On July 27, 1930, Crow's place of business, known as the Epps drug store, was destroyed by fire, together with its contents.This was a few days before the purchase of the soda water fountain.

The taxes on the movable and immovable property, assessed to Mr. and Mrs. Crow, were paid, but the taxes on the stock of merchandise, business furniture, and fixtures were not paid, and therefore the sheriff seized and sold this property to satisfy the unpaid taxes; J. H. Lusk becoming the purchaser of the property.It is charged by plaintiff that this tax sale was made pursuant to a conspiracy entered into between J. H. Lusk, the holder of a special mortgage on the realty, owned by Crow, and assessed by the latter to himself and wife, to defraud plaintiff of its rights against the soda fountain.It will be unnecessary to refer to this charge again.

After the tax sale the Epps Drug Store, Inc., was created, and Lusk, who was one of the incorporators, transferred to the newly created corporation the property purchased by him at tax sale, including the soda fountain and its appurtenances, the whole being transferred by Lusk for $ 1,800 in stock.

Following the tax sale, and after the stock, furniture, and fixtures had been transferred to the new corporation, Lusk, who was the holder of a mortgage on Crow's realty, including the store building, caused executory process to issue on his mortgage, and seized and sold the realty mortgaged, he becoming the purchaser at the sale.This sale plays a part in this litigation.

Plaintiff by this suit, seeks to annul the tax sale for the purpose of subjecting the fountain and its accessories to its mortgage.Several grounds are urged specifically in its petition as to why the tax sale should be annulled.We do not deem it necessary to pass on these specific grounds.There is a ground, patent upon the face of the tax deed, attached to the petition, which, in our opinion, shows that the deed is absolutely null and void on its face.The property, though personal property, was advertised to be sold for cash, subject to redemption at anytime for the space of one year by paying the price paid with penalties and costs added.The property, as...