Surget v. Newman

• Decision Date: 01 June 1890
• Docket Number: 1231
• Citation: 7 So. 731,42 La.Ann. 777
• Court: Louisiana Supreme Court
• Parties: JAMES SURGET ET AL. v. ISIDORE NEWMAN

7 So. 731

42 La.Ann. 777

JAMES SURGET ET AL. v. ISIDORE NEWMAN

No. 1231

Supreme Court of Louisiana

June 1, 1890

APPEAL from the Fourth District Court, Parish of Jackson. Bridger, J.

Fred W Price and Boatner & Boatner, for Plaintiffs and Appellants.

White &amp Saunders and E. E. Kidd, for Defendant and Appellee.

OPINION

WATKINS, J.

Plaintiffs claim, in joint ownership, certain lands situated in the parish of Jackson, and to which they derived title by inheritance from their father, James Surget, who died in the State of Mississippi in 1856. They aver that they, as the sole heirs of the deceased, have been in possession of said lands ever since his death, they having unconditionally accepted his succession. They represent that the defendant claims said lands under and by virtue of a certain tax adjudication thereof to him, made and executed by the Tax Collector on the 24th of June, 1881, in purported satisfaction of the taxes of certain years therein indicated. That said purported conveyance to said Newman is absolutely null and void, and did not pass to him any title because of certain alleged patent, absolute nullities, which are discoverable on a simple inspection of the act.

The prayer of their petition is, that the sale to the defendant be declared absolutely null, and they be recognized as owners of the property. The proces verbal of the tax adjudication is annexed to and made a part of plaintiff's petition.

To this action the defendant tendered a plea of no cause of action and plead the prescription of three years under Sec. 5 of Act 105 of 1874.

On the trial this plea of prescription was sustained and suit dismissed at plaintiffs' cost. From this judgment the plaintiffs have appealed.

From all that appears in the petition and tax title, it is manifest that there is no merit in the exception of no cause of action, and hence our opinion must turn upon the prescription of three years.

The language of the statute relied on is as follows, viz:

"Any action to invalidate the title to any property purchased at tax sale, under and by virtue of any law of this State, shall be prescribed by the lapse of three years from the date of such sale."

Evidently, then, the questions to be examined and determined, under this plea, are: first, whether this is an action to invalidate a title to property purchased at tax sale; second, was such sale made under and by virtue of any law of this State; third, from what time is the three years' prescription to be computed.

The provisions of this statute have been frequently invoked as being applicable to suits seeking the revocation of tax sales, made under different laws of the State, but they have been applied in but two reported decisions of this court, and they are of recent date.

In one of these, Barrow vs. Wilson, 39 An. 410, we said:

"It is a mistake to treat this statute as one intended to cure defects in tax titles. It is a statute of prescription, barring an action regardless of the merits or demerits of either title. * * * The statute does not concern itself with the strength of one title, or the weakness of another."

In the more recent case of McDougal vs. Monlezun, 39 An. 1005, in which we treated of this plea of prescription, the plaintiff grounded his action in nullity on certain alleged "illegalities, irregularities and informalities" in the assessment of the property, and in the proceedings antecedent, and leading up to the tax sale. Amongst them were enumerated: first, omission to list the property as belonging to a non-resident; second, omission to sell lands in fifty-acre lots, as required under Constitution of 1868; third, insufficient and defective description of property; fourth, insufficiency and irregularity of advertisement of the property for sale. But we held that as this statute was "not intended to cure defects in tax titles," it must be considered "and held to be an impassable barrier, which eliminates the very right of the court to investigate or consider the grounds of alleged nullity in the tax sale."

These two opinions make it very plain that in giving effect to this prescription, we are not to be limited or restricted to such tax titles as shall contain no illegalities, irregularities, or informalities, either in the assessment, or sale proceedings; for such titles are good, and do not need the help of prescription. Hence, we say, that this statute bars the action to annul, regardless of the merits or demerits of the title; and "eliminates the right of the court to investigate or consider such grounds of alleged nullity," as those specified in the tax sale attacked by McDougal in that case.

But, in the instant case, plaintiffs' contention is, that the bar of the statute does not apply, because -- amongst other reasons assigned -- there was no law of the...