Mayo v. Stoessell
| Decision Date | 09 April 1973 |
| Docket Number | No. 9291,9291 |
| Citation | 277 So.2d 520 |
| Parties | Edward M. MAYO, Administrator of the Estate of Mabel Arnett Putnam v. Marcella Prieto STOESSELL et al. |
| Court | Court of Appeal of Louisiana — District of US |
Amos L. Ponder, Jr., New Orleans, for appellant.
Oliver P. Carriere, Jr., New Orleans and Ernest Prieto, Covington, for appellees.
Before SARTAIN, BLANCHE and WATSON, JJ.
Plaintiff, Edward M. Mayo, Administrator of the Estate of Mabel Arnett Putnam, instituted this suit on November 8, 1968, against the heirs of Ernest Prieto seeking to have declared as nullities two tax sales, one for 1937 taxes and another for 1939 taxes, for unpaid state and parish taxes on real estate situated in St. Tammany Parish, Louisiana. The heirs of Ernest Prieto who are named as defendants herein are as follows: Marcella Prieto Stoessell, Preston Thomas Sharp Prieto, John Clay Francis Prieto, Marion Prieto Moore, Margery Moore Hanisee, David Michael Moore and Marie Anne Mauboules Moore. Subsequently, on July 7, 1972, an intervention was filed by Arthur F. Dumaine, Administrator of the Estate of Israel Mercer Putnam, praying for the same relief sought by plaintiff.
Defendants filed an 'Exception of Peremption and/or Prescription' contending that the cause of action of plaintiff and intervenor was perempted and/or prescribed under the provisions of Article 10, Section 11 of the Louisiana Constitution of 1921, as amended, in that more than five years had elapsed since the tax sales were filed of record. On the trial of this exception, the court heard argument of counsel and documentary evidence was introduced. Thereafter, judgment was rendered by the trial court maintaining the exception of peremption, dismissing plaintiff's suit and the intervention. From this judgment plaintiff and intervenor have devolutively appealed. We affirm.
Appellants contend on appeal that the trial judge erred (1) in failing to hold that the 1939 tax sale was an absolute nullity and not protected by the above-mentioned constitutional provisions and (2) in failing to hold that the provisions of LSA-R.S. 47:2181 and R .S. 47:2186 1 were mandatory, were not complied with and that no title was transferred, no rights created and same is not cured by the lapse of five years.
The basis upon which appellants originally sought to have the tax sales declared as nullities concerned (1) the lack of proper description of the property in the 1937 tax sale as well as (2) the price differential in the advertised or assessed price and the sales price, as to both the 1937 and 1939 tax sales. However, counsel for appellants do not seriously pursue the argument concerning the accuracy of the property description, conceding that the rule of law in Louisiana regarding descriptions contained in tax sales is liberal.
Therefore, the sole issue presented by this appeal is whether the five-year peremption of Article 10, Section 11 of the Louisiana Constitution of 1921, as amended, cures a tax sale of property which was sold for less than the taxes due or advertised thereon.
The applicable provision contained in Article 10, Section 11 of the Louisiana Constitution of 1921, as amended, provides as follows:
'No sale of property for taxes shall be set aside for any cause, except on proof 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 six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given. * * *'
The identical factual situation was involved in the case of Close v. Rowan, 171 La. 263, 130 So. 350 (1930). The tax sale in that case was attacked as being null and void on several grounds, one of which was that the property was sold at a tax sale for less than the tax due thereon. The Louisiana Supreme Court in that case noted that the Constitution of 1921 provided for only one exception to the course of peremption, namely, the prior payment of taxes, and that the jurisprudence had recognized another exception, namely, where the sale is made without any assessment. See Mecom v. Graves, 148 La. 369, 86 So. 917 (1921), and Guillory v. Elms, 126 La. 560, 52 So. 767 (1910). Because the sale of property for an amount less than the taxes due thereon was neither an exception in the constitutional provision nor one established by the jurisprudence, the Court applied the three-year peremptive period and rejected the attack on such grounds. 2
Recently in Jackson v. Hanna, 206 So.2d 779 (La.App.2nd Cir. 1968), there appeared an excellent summary of exceptions to the five-year period of peremption provided for by Article 10, Section 11 of the Constitution. In that case Judge Gladney of the Second Circuit Court of Appeal, after a thorough examination of the Constitution and the jurisprudence relative thereto, stated:
(Jackson v. Hanna, 206 So.2d 779, 784)
We note in the 'Reply Brief' of plaintiff and intervenor, which actually is a reply to nothing in defendants' brief, that it is argued that strong public policy demands that the correct amount of taxes be...
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