Mansfield Hardwood Lumber Co. v. Butler

• Court: Louisiana Supreme Court
• Writing for the Court: HAWTHORNE; SIMONS
• Citation: Mansfield Hardwood Lumber Co. v. Butler, 234 La. 322, 99 So.2d 129 (La. 1958)
• Decision Date: 06 January 1958
• Docket Number: No. 43132,43132
• Parties: MANSFIELD HARDWOOD LUMBER COMPANY v. Jerome R. BUTLER.

Page 129

99 So.2d 129

234 La. 322

MANSFIELD HARDWOOD LUMBER COMPANY v. Jerome R. BUTLER.

No. 43132.

Supreme Court of Louisiana.

Jan. 6, 1958.

Rehearing Denied Feb. 10, 1958.

Craig, Magee & Spann, Mansfield, for Commercial Nat. Bank, Trustee of Mansfield Hardwood Lumber Co., plaintiff-appellee.

Bethard & Bethard, Coushatta, for Jerome R. Butler, defendant-appellant.

HAWTHORNE, Justice.

Defendant Jerome R. Butler has appealed from a judgment recognizing plaintiff Mansfield Hardwood Lumber Company to be the true and lawful owner of certain real property in DeSoto Parish and entitled to its full and undisturbed possession, and ordering the defendant to deliver possession of the property to plaintiff.¹

This is a petitory action in which plaintiff seeks to be recognized as owner and entitled to possession of the following described property: SE 1/4 of SE 1/4 and E 1/2 of W 1/2 and NW 1/4 of NE 1/4 of Section 33, Township 11 North, Range 11 West, DeSoto Parish, Louisiana.

By bringing a petitory action plaintiff of necessity admits the defendant's possession of the property, and defendant's title is not at issue until plaintiff has proven an apparently valid title in itself. Art. 44 La.Code Prac.; Mecom v. Graves, 148 La 369, 86 So. 917; Simmons v. Carter, 186 La. 377, 172 So. 425; Simmons v. Jones, La.App., 68 So.2d 663.

Plaintiff here is the record owner of the property and has an unbroken chain of title back to the United States government. In this chain of title there is a tax deed dated June 2, 1930, recorded on June 6, 1930, in Conveyance Book 92, Folio 380, of the records of DeSoto Parish. This deed is valid on its face, and the description therein covers a large tract of land of which the property in controversy is a part. The property described in the deed was sold by the sheriff and ex officio tax collector for non-payment of the 1929 state and parish taxes under an assessment made to Pecan Belt Land Company. The tax purchaser was W. A. Roach, one of plaintiff's authors in title.

Appellant primarily contends that this tax sale was null ab initio,² and that consequently appellee, having no valid title in itself, cannot prevail. Appellant, being without a title of record to the property, also pleads the acquisitive prescription of 30 years.

It will be observed that the property in controversy comprises six governmental quarter-quarter sections, of which Pecan Belt Land Company was the record owner in 1929. Appellant first argues that the tax sale here under attack is null and void as to the E 1/2 of the W 1/2 of Section 33, Township 11 North, Range 11 West, comprising four of these quarter-quarter sections, because that land was not assessed for the year 1929. If he is correct in his contention, then his position is well taken as to this particular portion of the tract in contest, for the law is well settled that if a sale made by a tax collector purporting to be a sale for delinquent taxes is not preceded by an assessment of the property intended to be assessed, the sale is absolutely null; in fact, it is not really a tax sale and cannot be made valid by the constitutional peremption of five years found in Article 10, Section 11, of the Louisiana Constitution. Guillory v. Elms, 126 La. 560, 52 So. 767; Tillery v. Fuller, 190 La. 586, 182 [234 La. 327] So. 683; Hollingsworth v. Schanland, 155 La. 825, 99 So. 613.

There has been offered in evidence in this case a certified copy of the assessment roll for the Parish of DeSoto for the year 1929 with respect to the assessment of Pecan Belt Land Company. This document discloses that Pecan Belt Land Company was assessed as the owner of 9965 acres of land situated in Ward 7 of DeSoto Parish. The property is shown to have an assessed valuation of $99,650, and the 1929 taxes are shown as amounting to $2,443.39. On this document from the assessment roll a lengthy description of the property, principally by governmental subdivisions, is set out. Several pieces of the property owned by the tax debtor in Section 33 are enumerated, but the E 1/2 of the W 1/2 of the section is omitted. Because of this omission appellant contends that this particular portion of the property was not assessed, and that for this reason the tax sale as to this part of the land is a nullity.

There was also offered in evidence the assessment sheet which was used by the assessor in computing the 1929 assessment of Pecan Belt Land Company and from which the assessment shown on the assessment roll was made up. This sheet, like the assessment roll, shows that Pecan Belt Land Company was assessed with 9965 acres in Ward 7 having an assessed valuation of $99,650, and that the 1929 state and parish taxes due were $2,443.39. This assessment sheet also fully describes this large tract of land subject to assessment and the description includes the E 1/2 of the W 1/2 of Section 33.

It will thus be seen that the total amount of taxes due by Pecan Belt Land Company as shown by the tax roll includes the 1929 taxes due on the E 1/2 of the W 1/2 of Section 33. Furthermore, the valuation of this tract of land was included in the total assessed valuation of this company's land for this same year, and the assessment roll further shows that the total acreage assessed to the company was 9,965 acres, which included the acreage of the E 1/2 of the W 1/2 of Section 33. In other words, the total tax, the total assessed valuation, and the total acreage are identical on both documents. It is therefore clear that the omission of the E 1/2 of the W 1/2 of Section 33 in the description shown on the assessment roll was nothing more than a clerical error, and not an intentional omission. In other words, when the description was copied from the assessment sheet onto the assessment roll, the E 1/2 of the W 1/2 of Section 33 was omitted through error. Moreover, as a result of this tax sale all taxes due the state and parish for the year 1929 on this part of the property were paid by the tax purchaser.

From all this we conclude that this portion of the property was actually assessed, and the assessor's error made in transferring the description from the assessment sheet to the tax roll did not change the fact that the property was actually assessed. There is therefore no merit in appellant's contention that the tax sale of this portion of the property was absolutely null for lack of assessment.

Appellant further contends that the tax sale is null as to the SE, 1/4 of the NW 1/4 of Section 33, Township 11 North, Range 11 West, for the reason that this particular 40 was dually assessed and all taxes on it had been paid before the land was sold for taxes. In support of this contention appellant offered in evidence sheets from the assessment roll for the Parish of DeSoto for the year 1929. According to one of these offerings Mrs. Lula Butler was assessed with this particular 40 together with other property for the year 1929. According to the other sheet U. B. Butler was likewise assessed with this identical 40 together with other property for the year 1929. The assessment roll shows that both Mrs. Lula Butler and U. B. Butler paid the taxes under the above assessments on December 5, 1929. However, as we shall show, the Butlers did not pay or intend to pay the taxes on the SE 1/4 of the NW 1/4 of Section 33.

The record discloses that on June 15, 1906, Mrs. Lula Butler, joined by her husband U. B. Butler, conveyed the E 1/2 of the NW 1/4 of Section 33, Township 11 North, Range 11 West, to Florien Giauque, one of appellee's authors in title, and it is conclusively shown that at the time the 1929 assessment was made and at the time of the tax sale neither U. B. Butler nor Mrs. Lula Butler was the record owner of this particular 40.

The evidence also shows that on November 5, 1901, Uriah B. Butler made a dation en paiement to Lula Butler of the S 1/2 of the NW 1/4 of Section 34, Township 11 North, Range 11 West, and that according to the records of DeSoto Parish Mrs. Butler owned these 80 acres of land at the time the 1929 assessment was made and at the time of the tax sale. It will thus be seen that Mrs. Butler at this time owned the SE 1/4 of the NW 1/4 of Section 34 instead of the SE 1/4 of the NW 1/4 of Section 33.

Likewise the evidence shows that by deed dated November 1, 1919, Uriah B. Butler acquired from John H. Butler the SE 1/4 of the NE 1/4 of Section 33, Township 11 North, Range 11 West, and that he was the record owner of this particular 40 in 1929 at the time the assessment was made to him which described the SE 1/4 of the NW 1/4 of Section 33 as belonging to him. In the very assessment to U. B. Butler of the SE 1/4 of the NW 1/4 of Section 33, however, there is notation of the book and page of the notarial records where his deed of acquisition is recorded, and this notation shows the purchase to have been recorded in Notarial Records 51, page 146. A certified copy of the deed from John H. Butler to Uriah B. Butler which was offered in evidence shows that this particular instrument was recorded in Book 51, page 146, of the notarial records, and according to this deed U. B. Butler acquired with other property the SE 1/4 of the NE 1/4 of Section 33, and not the SE 1/4 of the NW 1/4 of this section.

In sum, neither Mrs. Lula Butler nor U. B. Butler was the record owner in 1929, at the time the assessment was made, of the SE 1/4 of the NW 1/4 of Section 33, with which they were assessed; but at that time Mrs. Lula Butler was the record owner of the SE 1/4 of the NW 1/4 of Section 34, and U. B. Butler was the record owner of the SE 1/4 of the NE 1/4 of Section 33, with which they were not assessed.

It is therefore apparent that in assessing Mrs. Butler with the SE 1/4 of the NW 1/4 of Section 33 a clerical error was made by writing Section 33 instead of Section 34, and that an error was likewise made in assessing Uriah B. Butler with the SE 1/4 of the NW 1/4 instead of the SE 1/4 of the NE 1/4.

It...