Pickett v. Southern Athletic Club

• Citation: 18 So. 634,47 La.Ann. 1605
• Decision Date: 18 November 1895
• Docket Number: 11,811
• Court: Louisiana Supreme Court
• Parties: PICKETT ET AL. v. SOUTHERN ATHLETIC CLUB

18 So. 634

47 La.Ann. 1605

PICKETT ET AL. v. SOUTHERN ATHLETIC CLUB

No. 11,811

Supreme Court of Louisiana

November 18, 1895

Argued November 5, 1895

Rehearing Refused December 16, 1895.

APPEAL from the Civil District Court for the Parish of Orleans. King, J.

F L Richardson and Kernan & Wall, for Plaintiffs and Appellants.

J. Zach Spearing and J. J. McLoughlin, for Defendant and Appellee.

OPINION

BREAUX J.

The plaintiffs, heirs of the late W. S. Pickett, who died on the 4th day of August, 1884, sue for the recovery of a square of ground purchased by their ancestor in the year 1856. It was sold for taxes in 1883 and adjudicated to the State of Louisiana. Prior to that time, to-wit: in 1876, under revenue act of 1873, it had been adjudicated to the State in payment of taxes for 1867 to 1876.

With reference to the sale, made in 1883, it is urged that no notice had been given to the owner.

With reference to the tax deed of 1876, it is argued that as there is no recital in the tax collector's deed and no evidence aliunde of the appointment of a curator ad hoc to represent the absent owner and no evidence of notice to him.

Under Sec. 3 of an act approved July 12, 1888, the auditor sold the property to John Spansell, who subsequently became defendant's author.

The tax collector declares in his deed showing the adjudication of the property to the State for the taxes of 1880 and subsequent years, that legal notice of sale was given to Wm. M. Pickett, the tax debtor.

The chief deputy clerk for the State Tax Collector, by whom the adjudication was made to the State in 1883, testifies substantially, that the notices to the tax debtors were mailed to the owners where the property was located, when their residences were not known. There is also evidence of record to show that the late Wm. M. Pickett had not resided in New Orleans (in which the property is situated) since 1865.

The defendant urges good faith, pleads the validity of the tax proceedings and invokes the prescription of one, five and ten years.

From a judgment rejecting their demand the plaintiffs appeal.

The main attack upon the last deed of adjudication to the State is the asserted want of notice of sale to the taxpayer as required by Art. 210 of the Constitution.

The deeds of tax collectors for those years are prima facie evidence of legal sales. Unless that presumption be controverted, and the contrary of the recital of the deeds is established, it should be accepted as true.

The recital is true until its untruth is established.

The decisions heretofore were controlled by the fact that it was made manifest that no notice, as required, had been given of taxes due for which it was the intention to offer the property for sale.

In the case of Breaux vs. Negrotto, 43 An. 426-433, this court said: "But we think the evidence is conclusive that no notice of any kind was ever served on the plaintiff."

In Parish of Concordia vs. Bertron, 46 An. 356-360: "It is in proof, no notice was given in the parish of that adjudication as required by the Constitution."

Here there is no evidence of witnesses on the trial of a positive character regarding notice, and impeaching the veracity of the declarations of the deed.

In the absence of such evidence we do not feel authorized to treat as naught these declarations, made at a time contemporaneous with the proceedings of sale.

The following we must regard as controlling considerations in reaching a conclusion upon this point.

Plaintiff in a petitory suit for property sold at tax sale (after the many years that have elapsed in this case) must make out his title to the property on all points.

The proceedings being regular, on the face of the papers, the evidence must be of a positive and convincing character to authorize the courts to set aside and declare null a tax deed upon the ground urged. The property had been assessed, duly advertised, offered for sale and adjudicated, and presumably the notice required preceding the sale was given.

The action of plaintiff...