Lisso & Bro. v. Police Jury of Parish of Natchitoches.

• Decision Date: 31 October 1910
• Docket Number: 18,407
• Citation: 53 So. 566,127 La. 283
• Parties: LISSO & BRO. v. POLICE JURY OF PARISH OF NATCHITOCHES. In re POLICE JURY OF PARISH OF NATCHITOCHES
• Court: Louisiana Supreme Court

53 So. 566

127 La. 283

LISSO & BRO. v. POLICE JURY OF PARISH OF NATCHITOCHES.

In re POLICE JURY OF PARISH OF NATCHITOCHES

No. 18,407

Supreme Court of Louisiana

October 31, 1910

Rehearing Denied November 28, 1910.

Action by Lisso & Bro. against the Police Jury of the Parish of Natchitoches. A judgment for defendant was reversed by the Court of Appeal, and the Police Jury apply for certiorari or writ of review. Judgment of the Court of Appeal reversed, and judgment of the trial court affirmed.

C Chaplin and W. A. Wilkinson, Dist. Atty., for applicant.

Scarborough & Carver, for respondent.

OPINION

MONROE J.

Statement of the Case.

Plaintiffs brought suit, in the district court of the parish of Natchitoches, to recover the purchase price of, and taxes paid on, certain lands adjudicated to them at tax sales, and the titles to which, as they allege, proved to be bad because the property owed no taxes, or was doubly assessed, or was public land, or was outside the parish. Defendant denies that it was a party to the sales, or had any control over them, or is bound for the restitution demanded, and alleges that plaintiffs bought at their own risk, listed the property for assessment as their own, and are estopped to demand the return of the price and the taxes voluntarily paid by them; and they plead the prescription of three years.

The case was tried upon admissions reading as follows:

"First. Plaintiffs herein bought various properties, at tax sales, at various times, in the parish of Natchitoches, from the collector of state and parish taxes of said parish, and have paid taxes for various years on said properties, all, as shown in detail, by the exhibits, hereto annexed as part hereof, marked, respectively, A1 to A7, inclusive; B1 to B7, inclusive; C1 to C7, inclusive; D1 to D7, inclusive; E1 to E7, inclusive; F1 to F7, inclusive; G1 to G7, inclusive -- which tax sales were all null and void, some, because the property belonged to the United States or state, some because the property was situated outside of Natchitoches parish, and some because the taxes for which the property was sold had been paid by the true owner, there being dual assessment, but, said sales were made in good faith and the taxes received by the parish in good faith.

"Second. That the amounts received by the parish out of the purchase price of said properties, and for taxes paid to the parish since, on same, amount to $ 1,308.24, as shown by exhibits hereto annexed, as part hereof, marked, respectively, AA, B, C, D, E, F, and G.

"Third. That the refund of $ 269.41 obtained by plaintiffs, and mentioned in the petition, was obtained for other properties than those mentioned herein.

"Fourth. That, as to all of said properties which were situated in the parish of Natchitoches toches and belonged to private individuals, the true owners of the same paid taxes to the state and parish for the various years for which plaintiff also paid, said properties being assessed to said true owners as well as to plaintiffs.

"Fifth. That the taxes so paid by Lisso & Bro. on said properties were paid voluntarily and without any coercion or representation by the parish officials.

"Sixth. Lisso & Bro. voluntarily handed to the assessor of the parish of Natchitoches a list of all said properties, together with other property owned by them, for assessment and taxation to themselves. They never attempted to have the assessments corrected or reduced by any legal steps whatever, and they voluntarily paid the taxes assessed against themselves, thereon, from year to year, without any legal coercion whatever, but believing that their tax titles were good and valid to the aforesaid properties.

"Seventh. Said assessments were made and the taxes paid thereunder by Lisso & Bro. through no representation or solicitation or inducement on the part of any of the officials of Natchitoches parish.

"Eighth. The police jury of the parish of Natchitoches has made no provision whatever for the payment of the sums sued for herein and has declined to adopt an ordinance recognizing the existence of said indebtedness or making any provision for the payment thereof."

Opinion.

The learned counsel for plaintiffs predicate their asserted right of recovery upon the articles of the Civil Code (articles 2301, 2302, and 2303) regulating the rights of parties with respect to payments made and received in error; and, in so doing, they lose sight of the fact that laws regulating the collection of taxes are sui generis, and constitute a system to which the general provisions of the Civil Code have, ordinarily, little or no application. State v. Viator et al., 37 La.Ann. 735; Reed v. Creditors, 39 La.Ann. 123, 1 So. 784.

Article 233 of the Constitution provides that, save in certain cases, the owner, upon recovering property sold for taxes, shall reimburse the purchaser; but our attention has not been called to any provision of the Constitution, or any statute, which imposes upon municipal corporations the obligation to reimburse either the price of property so sold, and from which the purchaser is evicted, or taxes voluntarily paid.

In Lindner v. City of New Orleans, 116 La. 373, 40 So. 736, it was held that:

"A tax sale, in the absence of special legislation to the contrary, is generally held to be subject to the rule caveat emptor, and the purchaser assumes the risk of all illegalities and irregularities in the proceedings of which, as they are open to his inspection, he is presumed to have notice. He is, therefore, without recourse against the municipality at the instance of which the sale is made, and which, not pretending to sell its own property, warrants neither the title nor the return of the price" -- citing 2 Cooley on Taxation (3d Ed.) pp. 919, 921, 1512; Desty on Taxation, § 850; Black on Tax Titles, c. 30, § 403; Hamilton v. Valiant, 30 Md. 139; Pennock v. Douglas County, 39 Neb. 293, 58 N.W. 117, 27 L.R.A. 121, 42 Am. St. Rep. 579; Budge v. City of Grand Forks, 1 N.D. 309, 47 N.W. 390, 10 L.R.A. 165.

The case thus cited is reported in 7 Am. & Eng. Ann. Cas., p. 919, with the following note, to wit:

"The holding of the reported case, to the effect that a tax sale, in the absence of special legislation to the contrary, is subject to the rule caveat emptor, and the purchaser is without recourse against the municipality under the authority of which the sale is made, where the sale is invalid, is supported by the following authorities."

And then follows a list of decisions by the federal courts and by the courts of last resort of 25 of the states of the Union, including California, Colorado, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, South Carolina, Texas, and Virginia. The note also contains several excerpts, from which we take the following:

In Hamilton v. Valiant, 30 Md. 139, it was said:

"Although cases are numerous in which titles derived from tax sales have been declared to be defective because of irregularities, we know of no case in which the attempt has been made to hold the officer making the sale responsible in damages. There seems to have been a general acquiescence in the doctrine that no such liability exists, and we had not supposed that any doubt was entertained upon so plain a proposition. A purchaser at a tax sale, buying, as he does, property from a person who is not the owner of it, comes strictly and rigidly within the rule caveat emptor. While his title depends mainly upon the regularity of the proceedings of the officer who makes the sale, he is bound to inquire whether he has acted in conformity with the law from which his power is derived. In this case the duties of the collector, as to notice and other matters essential to the validity of the tax sale, were distinctly prescribed, and, in regard to them, a purchaser had the easy means of being fully informed. If he acted without proper inquiry and care, it was his own fault, and, buying upon the faith of his own judgment, he must abide the consequences."

In Lynde v. Melrose, 10 Allen (Mass.) 49, a tax title having been set aside for illegal assessment, the ejected purchaser and his vendee brought suit against the town to recover the amount paid, together with costs and expenses of the action of ejectment.

The court said:

"This action is certainly a novel impression, * * * no precedent for maintaining such a suit is found, and the plaintiff's counsel rests his argument solely upon the ground that the defendants have received the amount of the tax without consideration. If this be true, it is not easy to see how the plaintiffs get a joint right of action, nor how the defendants could be responsible for more than the sum $ 1.39, the amount of the tax which would go into the town treasury. But there is a plain distinction between the right of a person to recover from the town the amount of a tax unlawfully assessed upon him, and the claim of a purchaser under a collector's deed, whose title proves defective. The town is not a party to the deed. The purchaser is a mere volunteer in the payment of the tax. He has the same means of knowing whether it is legally assessed that the town has. He buys a title without warranty, except such covenants as he takes from the collector, and he must rely upon them. Beyond those covenants, his deed is in the nature of a mere quitclaim, for which he has paid what he thought the claim was worth. His speculation may prove very profitable or wholly unproductive, but no one has taken his property without his consent, or with any contract, expressed or implied, to reimburse him if his bargain proves a losing one."

In McCormick v. Edwards, 69 Tex. 108, 6 S.W. 33, it was said:

"After a careful research we have found no...