Marque v. Kolwe

• Decision Date: 03 January 1927
• Docket Number: 9545
• Citation: 5 La.App. 541
• Court: Court of Appeal of Louisiana — District of US
• Parties: MARQUE, Appellant v. KOLWE

5 La.App. 541

MARQUE, Appellant v. KOLWE

No. 9545

Court of Appeals of Louisiana, Orleans

January 3, 1927

Rehearing Refused January 31, 1927.

Appeal from Civil District Court. Hon. Wm. H. Byrnes, Judge.

Action by A. L. Marque against A. J. Kolwe.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Feitel & Feitel, N. H. Polmer, of New Orleans, attorneys for plaintiff, appellant.

W. W Wall, of New Orleans, attorney for defendant, appellee.

OPINION

CLAIBORNE, J.

This is a suit to set aside a tax sale.

The plaintiff alleged that he was the owner in full possession of two lots of ground situated in the second district of this city in the square No. 634 bounded by Peach, Marks, Hamilton and Laurel Grove designated by the Nos. 23 and 24 on a sketch of H. C. Brown, surveyor, dated August 21, 1903, annexed to an act of F. J. Dreyfous, dated July 17, 1908, measuring each 30 feet front on Peach street by a depth of 120 feet, lot No 24 forming the corner of Peach and Hamilton streets; purchased by act of Felix J. Dreyfous, notary, dated August 19, 1909, Reg. C. O. 226-624, from Elias Pailet;

That since his acquisition he has been in the continuous, physical, and corporeal possession of said two lots, and was in such possession on July 15, 1918, and is now enjoying such possession.

That on July 15, 1918, said property was adjudicated to A. J. Kolwe for $ 15.20 at a sale made for unpaid city taxes for the year 1915, registered in the conveyance office on July 29, 1918, in book 302, p. 119; that said sale is null and void for the following reasons:

1st. That although plaintiff was the registered owner of the property at the time of the tax, said property was assessed in the name of the "Teutonia Loan and Building Company", and was advertised for sale in the above name;

2nd. That plaintiff was never served with a notice of said sale as required by section 50 and 51 of Act 170 of 1898; but the notice of sale was served upon "the Teutonia Loan and Building Company"; that plaintiff had no knowledge of the intended sale and the city made no attempt to serve him with notice.

Plaintiff further alleged that he had paid all the taxes upon said property for the years 1916 to 1921, both inclusive.

Plaintiff prayed for judgment annulling the tax sale and recognizing him as owner of the property, and in default for judgment in his favor for the taxes paid by him.

The defendant admitted the tax sale to him, but denied all the other allegations of the petition.

Further answering, he alleged that the tax sale was valid and vested in him a valid title; that ever since said sale he has had the actual, physical, and corporeal possession of the property sold, and that his "title is quieted and confirmed, and plaintiff's action to annul the same is barred by the prescription or peremption of three years set forth in the Constitution of the State of Louisiana, which constitutional provision is expressly pleaded here in bar of plaintiff's action".

By a supplemental petition plaintiff alleged "that the advertisement under which the property was sold, recited said property as measuring 30 feet front on Peach street by 120 feet in depth; that said measurements were not sufficient to identify the property as provided by Act 1770 of 1898", as the whole appears by a copy of said advertisement and process verbal of sale annexed. Plaintiff prayed that in case the tax sale was maintained as vaild that it be restricted to one lot measuring 30 feet front on Peach street by 120 feet in depth.

Of this supplemental petition the defendant denied all its allegations.

There was judgment in favor of the plaintiff for all the taxes paid by him, and in favor of the defendant recognizing him as the owner of the two lots claimed by plaintiff and as described by him in his petition.

The allegation in the supplemental petition, "that the advertisement under which the property was sold recited said property as measuring 30 feet front on Peach street is not supported by the record.

The following is a copy of the advertisement which appears in the record:

"Teutonia Building and Loan Assn. City taxes for the year 1915, $ 6.60, No. 10,082: 'Two certain lots of ground and improvements thereon situated in the Seventh District of the city of New Orleans, designated as lots Nos. 23 and 24, in square No. 634 bounded by Peach, Hamilton, Laurel Grove, and Maple streets and measures 30 feet front on Peach street by 120 feet in depth'."

The description would have been more accurate had it said: "Measures 'each' 30 feet"; but it is certain that "two certain lots" and not "one" were advertised.

Section 9 of Act 170 of 1898, p. 352, provides:

"That for the purpose of taxation and tax sales it shall be sufficient to assess and describe all property according to such description as will reasonably identify the property assessed, etc., also Section 19."

In our opinion the assessment and sale comprised all the land included in the two lots, 23 and 24. There is no doubt that the lots assessed and sold were the numbers 23 and 24, which carried with them all the lots contained. 43 La.Ann. 726 (730). It is sufficient if it is made clear that the property assessed and sold is that owned by the party assessed in a particular square.

In the case of Gouaux vs. Beaullieu, 123 La. 684, the court reviews the jurisprudence on the question of description of property sold for taxes.

The syllabus reads as follows:

"It is not claimed in this case that there was a misdescription of the property assessed and sold or that defendants have taken possession of property not intended to be sold but that there was 'uncertainty' in the description of the property sold at tax sale and under the description of the tax deed it could not be identified. As a fact, the defendants have identified and taken possession of the land, it being the exact quantity of land and the only land owned by the person in whose name it was assessed in the section, township, and range mentioned according to the official maps." Shelly vs. Friedrichs, 117 La. 679, 42 So. 218.

"The tax sale of one-half of a certain square of ground means the certain and determinate half square owned by the party assessed, and not an undivided one-half interest in the square." Xeter vs. Dalgon, No. 7359 Orl. App.; No. 7619, 2 La.App. 196.

"Where A, the tax debtor, owns certain lots in a particular square, the municipal number and street boundaries of which are given, the property is sufficiently described for the purposes of its assessment and sale for taxes as 'certain lots (in the square designated) assessed to A, such description including all the lots owned by A in the square described." Weber's Heirs vs. Martinez, 125 La. 663; 112 La. 797, 51 So. 679.

The exception of prescription is based upon Article 233 of the Constitution of 1898, which reads as follows (eliminating all parts not applicable):

"No sale of property for taxes shall be set aside for any cause except on proof of dual assessment or of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within three years from the date of recordation of the tax deed as to sales made hereafter."

The suit in this case was filed on August 10, 1922, more than four years after the recordation of the tax deed.

Under the text of Article 233, the action to annul the sale was prescribed by three years, inasmuch as there was no allegation of dual assessment or of payment of the taxes for which the property was sold. Canter vs. Williams' Heirs, 107 La. 77, 31 So. 627; Ashley Co. vs. Bradford, 109 La. 641, 33 So. 634; Simoneaux vs. White Castle Lumber & Shingle Co., 112 La. 221, 36 So. 328; Levy vs. Gause, 112 La. 789, 36 So. 684; Little River Lumber Co. vs. Thompson, 118 La. 284, 42 So. 938; Prater vs. Craighead, 118 La. 627, 43 So. 258; Richards vs. Fuller, 122 La. 847, 48 So. 285; Holland's Heirs vs. Southern States Land & Timber Co., 124 La. 406, 50 So. 436; Weber's Heirs vs. Martinez, 125 La. 663, 51 So. 679, In re. Realty Co., 127 La. 208, 53 So. 526; Hirst vs. Xeter Realty, 138 La. 398, 70 So. 339; Orl. App. Nos. 7774, 7861.

This prescription applies even as against minors. 124 La. 100.

It protects the want of notice. Weber's Heirs vs. Martinez, 125 La. 663, 51 So. 679; In re. Realty Co., 127 La. 208, 53 So. 526; State vs. Celestin, 138 La. 407, 70 So. 342.

"Though property may have been assessed in the name of one not the owner, a sale for taxes, predicated on such assessment falls, nevertheless, within the meaning and operation of Article 233 of the Constitution, and will not be set aside, save in the case specially provided, unless the proceeding to annul be instituted within the time prescribed by the article." Crillen vs. N. O. Terminal Co., 117 La. 349, 41 So. 645; Bradley vs. City of New Orleans, 153 La. 281, 95 So. 718; Weber's Heirs vs. Martinez, 125 La. 663, 51 So. 679; Guillory vs. Elms, 126 La. 560, 52 So. 767; Richards vs. Fuller, 122 La. 847, 48 So. 285.

In the last case it was also held that the validity of the tax sale was not affected by the fact that the property, after the sale, was assessed in the name of the former owner and that taxes were received from him.

The presumption is that possession of the property sold for taxes followed the act of sale. C. C. 2479 (2455); Canter vs. Williams' Heirs, 107 La. 77, 31 So. 627; Carey vs. Cagney, 109 La. 77, 33 So. 89;9 Ashley Co. vs. Bradford, 109 La. 641, 33 So. 634; Ashley Co. vs. Bradford, 109 La. 641, 33 So. 634; Hirst vs. Xeter Realty, 138 La. 398, 70 So. 339.

"The prescription of three years is applicable even though the property is not in the actual possession of the...