Saloy v. Woods

• Decision Date: 01 May 1888
• Docket Number: 10,166
• Citation: 40 La.Ann. 585,4 So. 209
• Court: Louisiana Supreme Court
• Parties: B. SALOY v. JAMES WOODS

4 So. 209

40 La.Ann. 585

B. SALOY v. JAMES WOODS

No. 10,166

Supreme Court of Louisiana

May 1, 1888

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

Charles Louque, for Plaintiff and Appellant.

J. Ward Gurley, for City of New Orleans, Third Opponent and Appellee.

OPINION

TODD J.

Plaintiff caused certain immovable property, situated in the city of New Orleans, to be sold under executory process to enforce the payment of a mortgage thereon.

The city, by third opposition, claimed to be paid by preference out of the proceeds of sale of the city taxes for the years 1882, 1883, 1884, 1885, 1586 and 1887, assessed against the defendant.

From a judgment in favor of the city, maintaining the opposition for the full amount claimed, the plaintiff has appealed.

I.

Against the tax and tax privilege of 1882, the prescription of three and five years is pleaded.

This question must be governed by the revenue act (771 of 1880). The 24th section of that act provides: "That taxes, tax mortgages and tax privileges shall be prescribed by three years from the date of filing the tax roll in the office of the recorder of mortgages." The tax roll was so filed on the 14th of July, 1883, and the city's opposition, claiming the tax, was instituted on the 20th of September, 1887.

There was, however, a suit instituted for the recovery of the tax in 1882, which interrupted prescription.

The counsel for plaintiff, however, contends that this suit did not interrupt prescription, because of the constitutional inhibition (Art. 401) against this method of collecting taxes. It was held by this Court in City vs. Wood & Bro., 34 Ann. 732, and Mayer vs. Hyman, 35 Ann. 301, that this inhibition did not become operative until rendered so by subsequent legislation. Therefore, the suit was effective to interrupt prescription, and the claim was not barred.

II.

As relates to the taxes of 1883 and 1884, prescription must be determined by Act 95 of 1882. Section 34 of that act changes the prescriptive term, with respect to taxes, tax mortgages, etc., from three to five years.

The taxes were recorded in the mortgage office respectively July 31, 1884, and February 24, 1885. Prescription, therefore, had not run when the opposition was filed.

The plaintiff, however, claims that the question of prescription relating to these taxes must be governed by Act 176 of the Constitution, under which it is contended the prescription term is fixed at three years, and without reference to the date of record. In the case of Davidson vs. Lindop, 36 Ann. 765, this Court held otherwise, and to that decision we still adhere.

Nor does the requirement contained in that article, as to the time within which privileges must be recorded, apply to privileges for taxes.

It is, however, shown that part of the tax of 1884 resulted from an assessment of money, at interest, and merchandise amounting to $ 5000.

Of course, this assessment did not operate as a privilege on the real estate of the tax-payer. Therefore, the amount of the tax on this...