Scheller v. Goode

• Decision Date: 19 March 1953
• Docket Number: No. 3630,3630
• Citation: 69 So.2d 96
• Parties: SCHELLER v. GOODE. *
• Court: Court of Appeal of Louisiana — District of US

Page 96

69 So.2d 96

SCHELLER v. GOODE.^*

No. 3630.

Court of Appeal of Louisiana, First Circuit.

March 19, 1953.

Rehearing Granted May 4, 1953.

Plauche & Stockwell, Lake Charles, for appellant.

Lawes Cavanaugh & Hickman, Lake Charles, and Craig Magee & Spann, Mansfield, for appellee.

ELLIS, Judge.

This is a suit to annual and set aside a tax sale made by the Sheriff and Ex-Officio Tax Collector of the Parish of Calcasieu on May 25, 1945 for the unpaid taxes of 1944 levied and assessed against Lot 6 of C. B. Hempton's Subdivision of the west 2 acres of Lot 'A' of Gray, Nuchols and Weeks Subdivision, part of Southeast Quarter of Northwest Quarter of Section 33 Township 10 South, Range 10 West. The basis for plaintiff's claim to annual the tax sale is set forth in her petition as follows:

VII.

'Petitioner would further show that the pretended tax sale and the purported deed issued thereunder, is and was null, void and of no effect, and conveyed no title to the said I. J. Goode, of said land, for the following reasons, to-wit:

'A. That no valid or legal notice of delinquency and of the intention to sell said property was issued, mailed or delivered to petitioner, the owner of said property, nor was such notice issued, mailed or delivered to anyone prior to said attempted sale by the said H. A. Reid, Sheriff and Ex Officio Tax Collector, prior to said sale or the execution of said deed, as required by law as a judicial prerequisite to such sale.

'B. Petitioner would further show that the said H. A. Reid, Sheriff and Ex Officio Tax Collector, failed and neglected to make up and file and to record a proces verbal of the sending of the notices mailed, or purported to be mailed, to Anna Flagg, to petitioner, or any other delinquent tax payer for delinquent taxes due by them for the year of 1944, as required by law.'

VIII.

'Petitioner would further show that on September 20, 1943, petitioner's mother, Anna Moseley Flagg, executed an oil, gas and mineral lease upon said land in favor of Chas. H. Lawrence, Jr., a resident of Calcasieu Parish, Louisiana, as per oil, gas and mineral lease recorded October 4, 1943, in Conveyance Book 358, page 504; and the said Chas. H. Lawrence, Jr., assigned said oil, gas and mineral lease to the Union Oil Company of California, as per assignment filed for record October 7, 1943, as per File No. 301992, and recorded October 13, 1943, in Conveyance Book 358, page 580; and the said Union Oil Company of California and the Union Sulphur Company and J. C. Wynne, a resident of Smith County, Texas, on November 13, 1943, as per agreement filed for record on December 9, 1943, recorded in Conveyance Book 363, page 359 of the Conveyance Records of Calcasieu Parish, unitized the above lease hereinabove referred to executed by petitioner's mother, Anna Moseley Flagg, in favor of Chas. H. Lawrence, Jr., along with other leases covering porperty in W 1/2 SE 1/4 NW 1/4 Section 33 Township 10 South Range 12 West, consisting of Unit A and Unit B, each containing twenty (20) acres, respectively, including the property owned by petitioner, and that under said oil, gas and mineral lease executed by petitioner's mother, Anna Moseley, Flagg, said oil companies went in actual physical corporeal possession of said property, under the terms of said lease, and prior to and at the time of said tax sale, and ever since, has been producing oil from the lot of ground owned by petitioner hereinabove described as: Lot 6 of C. Burt Hampton Subdivision of West 2 acres of Lot A of Gray Nuchols and and Weeks Subdivision of Part of SE 1/4 NW 1/4 Section 33 Township 10 South, Range 12 West, Louisiana Meridian, and have regularly paid petitioner, prior to said tax sale and at the time of said tax sale, and since, a regular monthly royalty accruing to her under the terms of said lease; and that the actual physical corporeal possession exercised by the said Union Oil Company of California and the said Union Sulphur Company of petitioner's lot of land was by virtue of said lease.'

IX.

'Petitioner would further show that the Union Oil Company of California under the terms of said lease which had been assigned to it by Chas. H. Lawrence, Jr., and under the unitization agreement between it, Union Sulphur Company and J. C. Wynne, constructed roads over and across said unitized area, built slush pits prior to and at the time of said tax sale, and ever since, were using Lot 6 of C. Burt Hampton Subdivision of West 2 acres of Lot A of Gray, Nuchols and Weeks Subdivision of Part of SE 1/4 NW 1/4 Section 33 Township 10 South Range 12 West, Louisiana Meridian, by constructing drainage ditches thereon which carried waste from said oil wells over and across said lot and said actual physical corporeal possession has been continued by said lessee, Union Oil Company of California and has been apparent on the surface of said ground prior to and at the time of said tax sale and ever since said tax sale and its actual physical possession of said land was open, peaceable and as owner of said oil, gas and mineral lease.'

Plaintiff further alleged that she had tendered to the defendant tax purchaser the price of adjudication, together with all taxes paid by him, together with ten per cent per annum interest thereon, which tender was refused.

The defendant filed an answer in which he denied the nullity of the tax sale and plead the peremption or prescription of three and five years in bar to any attack on the tax sale.

Judgment was rendered in the court below in favor of the plaintiff as prayed for and the defendant has appealed.

Defendant makes the following contentions:

1. That the tax sale dated June 13, 1945 is regular in form and was properly recorded on June 20, 1945, and that since more than five years has expired from the date of the recording of the sale, it is not subject to attack on the grounds set forth in plaintiff's petition.

2. That plaintiff has failed to sustain the burden of proof that she was in and remained in actual, corporeal possession of the property after the date of the sale so as to permit her to attack the tax sale even though more than five years has elapsed from the date of the recording of the sale.

3. That the sale is legal and regular and that proper notice was given as requested by law.

There is little dispute over the facts in this case, however, the main question is in the application of the law to the facts. It is shown that Lot 6 of the C. B. Hampton Subdivision measures 66 feet square, and on January 1, 1944 was owned by Mrs. Anna Moseley Flagg who, during 1944, died and her succession was opened in the parish of De Soto and her daughter, Mary Wortley Scheller, by judgment was recognized as her heir and placed in possession of the property on September 5, 1944. This judgment was filed in Calcasieu Parish on September 7, 1944, and duly recorded. The lot in question was assessed in 1944 to Mrs. Anna Moseley Flagg and the taxes for that year were not paid and, therefore, on March 21, 1945 the Sheriff and Tax Collector sent a registered notice of delinquency addressed to Anna Flagg at Vinton, Louisiana, which notice was returned to the Tax Collector with the reason checked on the return envelope 'Unknown.' No further effort or steps were taken by the Sheriff and Tax Collector, and the property was duly advertised and sold on June 13, 1945, to the defendant, I. J. Goode, for the unpaid taxes of 1944, and he has paid taxes on the lot from 1945 to 1951 under an assessment to him. The plaintiff has never paid by taxes on the property.

Under the facts in this case the notice was defective, as it has been held that a notice to a dead person is no notice at all, and that the owner of the property at the time the notice was given, in this case the plaintiff, as the sole child and heir of Mrs. Flagg, was the tax debtor entitled to the notice. The Supreme Court in Federico v. Nunez, 173 La. 957, 139 So. 18, 21, made the following statement:

'Having reached the foregoing conclusion, we now come to the defects alleged to exist in the tax sale. One of these defects, as we have said, is the failure to give notice of intention to sell for the taxes due. There is no complaint of the fact that the assessment was made in the name of a dead person, as if such person were alive. In fact, there was no ground to base such a complaint upon, for, although Lorenzo Federico, the husband and father of plaintiffs, died some eight years before the assessment was made, no written notice of his death, and whether or not his succession had been opened, and, if opened, when and where, was given by the parties interested in the assessor. The assessment, therefore, although in the name of an owner, who died pending his ownership, was valid. Section 25 of Act No. 170 of 1898 [LSA-R.S. 47:1965, 47:1995].

'It does not follow from this, however, that notice, mailed to one who is dead, is a compliance with the law. The Constitution of 1921, under which the tax sale was made, provides that the tax collector, before proceeding with the sale, shall give 'notice to the delinquent in the manner provided by law.' Const.1921, art 10, § 11. The law, in obedience to this constitutional requirement provides that printed or written notices, in the county parishes, shall be sent by the tax collector, by registered mail, to the 'taxpayer.' The word 'delinquent,' appearing in the Constitution of 1921, as also in similar phrases in preceding Constitutions, means the owner at the time of issuing the notice. * * *

'The tax collector, in the case before us, sent notice, by registered mail, addressed to 'Lorenzo Federico, New Orleans, La.' No street number was given. It does not appear whether the notice was returned to the tax collector or not, for some of his records, including returned notices, were destroyed in a flood. But be that as it may, while Federico was a resident of New Orleans at the time of his death and for some years prior thereto,...