Morris v. Hankins

• Decision Date: 03 April 1939
• Docket Number: 35136,35137
• Court: Louisiana Supreme Court
• Parties: MORRIS et al. v. HANKINS et al

188 So. 155

192 La. 504

MORRIS et al. v. HANKINS et al

Nos. 35136, 35137

Supreme Court of Louisiana

April 3, 1939

Petitory actions by W. L. Morris and others against S. T. Hankins and others. Judgments of dismissal, La.App., 185 So. 518,185 So 525, and plaintiffs apply for certiorari or writ of review.

Affirmed.

Theus Grisham, Davis & Leigh, of Monroe, for applicant.

Shotwell & Brown, W. F. Pipes, and Dhu Thompson, all of Monroe, W. D Moore, of West Monroe, and C. T. Munholland and H. D. Montgomery, both of Monroe, for respondents.

OPINION

HIGGINS, Justice.

These petitory actions were consolidated and tried jointly in the district court and the Court of Appeal. Plaintiffs are claiming title to certain property located in the Northeast Quarter of the Southeast Quarter (N. E. 1/4 of S. E. 1/4) of Section 29, Township 18, North Range 3 East, in the Parish of Ouachita, State of Louisiana, through their vendor, John H. Noble, who was alleged to have acquired the land by tax deed dated June 15, 1889, for the unpaid taxes of 1888, amounting to $ 9.19, due by the owner, Joseph B. Wolfe & Co., in which name it was assessed, the deed reciting that the property was sold under the provisions of Act No. 85 of 1888, by J. E. McGuire, Tax Collector, to John H. Noble, the land being described as follows: "One hundred and fourteen acres known as Thos. McGuire place about one and a half mile from Trenton, lying on both sides of Claiborne Road."

Plaintiffs pleaded peremption under Article 233 of the Constitution of 1898, and the ten years' prescription acquirendi causa in support of their title.

Several parties were joined as defendants in the suits, as they were in possession, as owners, of some of the lands to which the plaintiffs were asserting title.

The defendants denied that the purported assessment and the tax deed were valid and averred that they were null and void ab initio, because the mandatory provisions of the statute were not complied with in attempting to describe the property, and that the assessment and the tax deed did not contain a description susceptible of identifying the property. The defendants also pleaded lack of notice, dual assessments, prior payment of taxes and that the assessment and the tax sale did not cover the property they are claiming. They also set forth their own record titles and pleaded ten years' prescription acquirendi causa.

The district judge rendered judgments in favor of the defendants dismissing the plaintiffs' suits and they have appealed.

In the Court of Appeal, the plaintiffs contended that they held a valid title to the land -- not because the assessment and tax deed complied with the law, but, because the errors and deficiency in the assessment and the tax sale were cured by the peremption period provided in Article 233 of the Constitution of 1898 and the prescription of ten years' acquirendi causa.

The Court of Appeal held that the assessment and the tax deed were null and void, because the land was not described according to the mandatory provisions of Sections 7 and 18 of Act No. 85 of 1888, under which they were made; that this radical or absolute nullity was neither cured by the three years' peremption period provided for in Article 233 of the Constitution of 1898 nor the prescription of ten years' acquirendi causa; and that the provisions of Act No. 140 of 1890 had no application, since this statute was passed after the tax sale was made. 185 So. 518; 185 So. 525.

We granted the plaintiffs' application for a writ of certiorari, and the matter is now before us for review.

We find no fault with the opinion of the Court of Appeal holding that the tax assessment and the tax sale, through which the plaintiffs are claiming, were illegal, because a mere reading of Sections 7, 18, 63 and 69 of Act No. 85 of 1888, in connection with the description of the property in the assessment and the tax sale, reveals that the sheriff and ex-officio tax collector failed to comply with the mandatory provisions of the statute under which the property was assessed and sold.

The Court of Appeal also correctly concluded that the provisions of Act No. 140 of 1890 were inapplicable in the instant case, because that statute came into existence subsequent to the assessment and tax sale in question and the Act does not provide that it shall have retroactive effect.

Our views are not in accord with those of the Court of Appeal with reference to the application of the provisions of Article 233 of the Constitution of 1898 to the facts of this case. That Court, in this connection, merely held that, since the description in the assessment and the tax sale did not meet the requirements of Sections 7 and 18 of Act No. 85 of 1888, they were null and void and, therefore, Article 233 of the Constitution of 1898 did not cure this "radical or absolute nullity." Thus, in effect, holding that this Article of the Constitution did not affect the illegal tax assessments and tax sales made prior to 1898.

Article 233 of the Constitution of 1898, in part, provides:

"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 six months from service of notice of sale, which notice shall not be served until the time of redemption has expired, or within three years from the adoption of this Constitution, as to sales already made, and within three years from the date of recordation of the tax deed, as to sales made hereafter, if no notice is given. * * *"

These provisions are almost identical to those contained in Article 233 of the Constitution of 1913 and in Section 11 of Article 10 of the Constitution of 1921.

The above quoted portion of Article 233 of the Constitution of 1898 is unquestionably retroactive by its express terms. It refers to "sales already made," and allows three years from the adoption of the Constitution (in compliance with the due process requirements of the Fifth and Fourteenth Amendments of the Constitution of the United States, U.S.C.A., and similar provisions in our own Constitution) to those who have any rights in properties already sold, to attack such sales, in order to have them set aside, if invalid.

In the case of Weber's Heirs v. Martinez, 125 La. 663, 51 So. 679, 680, the Court said:

"The sale to the state, which constitutes the basis of the defendant's title, was made, as we have stated, on March 14, 1885, and was recorded on August 29th of the same year, nearly 13 years before the Constitution was adopted; and this attack was not made upon it until May 6, 1908, some 10 years after the adoption of the Constitution. The attack is therefore barred by the prescription established by the Constitution, unless found to be within either one or the other of the exceptions thereby established, or within some exception, held by this court to be necessarily implied therefrom. It has been held that it is immaterial for the purposes of the question to be here determined whether an assessment has been made in the name of one person or another, or in no name, or whether the owner, not in possession, has been notified of the intention to sell or has not been notified, or whether the sale has been advertised or has not been advertised. Canter v. Williams, 107 La. 77, 31 So. 627; Crillen v. N. O. Terminal Company, 117 La. 349, 41 So. 645; Little River Lbr. Company v. Thompson, 118 La. 284, 42 So. 938. As to the plaintiffs' allegation that no taxes were due, the answer is that it being admitted that none were paid, and it not being pretended that the property was exempt, the taxes were necessarily due, provided there was an assessment, and the tax debtor is barred by the constitutional prescription from contesting the fact of the assessment, save in connection with the assertion that the description in the tax deed and in the assessment fail to identify the property. * * *" See, also, Canter v. Williams' Heirs, 107 La. 77, 31 So. 627; Ashley Co. v. Bradford, 109 La. 641, 33 So. 634; Carey et al. v. Cagney et al., 109 La. 77, 33 So. 89; Shelly v. Friedrichs, 117 La. 679, 42 So. 218; Hirst v. Xeter Realty, Ltd., 138 La. 398, 70 So. 339; Gouaux v. Beaullieu et al., 123 La. 684, 49 So. 285.

It will be noted that the pertinent provision of Article 233 of 1898 expressly states that after the lapse of three years, the tax sales shall not be set aside for any reasons, except: (1) Dual assessment, and (2) prior payment of the taxes for which the tax sale was made.

In interpreting this Article, the Supreme Court held that the above limitation constitutes a prescription liberandi causa and that its running is interrupted so long as the tax debtor is permitted to remain in undisturbed, actual corporeal possession of the property sold. Carey et al. v. Cagney, supra; In re Seim, 111 La. 554, 562, 35 So. 744; Baldwin Lumber Co. v. Dalferes, 138 La. 507, 70 So. 493; Head v. Howcott Land Company, 119 La. 331, 44 So. 117; and In re Sheehy, 119 La. 608, 44 So. 315.

In construing the above quoted Article of the Constitution of 1898, the Supreme Court further held that the three years' limitation or prescriptive period did not apply to a tax sale where the property was not sufficiently described therein to permit identification thereof. Guillory v. Elms, 126 La. 560, 567, 52 So. 767, 770; Landry v. McWilliams, 135 La. 655, 65 So. 875; Fellman's Heirs v. Interstate Land Company, 163 La. 529, 112 So. 405; and Hirst v. Xeter Realty Company, supra.

The Court of Appeal did not pass upon the question raised by the plaintiffs that, while the assessment and the tax sale were illegal in the sense that they did not...