Terry v. Heisen

• Decision Date: 15 January 1906
• Docket Number: 15,764
• Citation: 40 So. 461,115 La. 1070
• Court: Louisiana Supreme Court
• Parties: TERRY v. HEISEN et al

40 So. 461

115 La. 1070

TERRY v. HEISEN et al

No. 15,764

Supreme Court of Louisiana

January 15, 1906

Action by Mrs. George Copley Terry against Charles C. Heisen and others.Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.Dismissed.

Aylmer Leake Slack, for applicant.

Snyder & Gilfoil, for respondentEl Dorado Lumber Company, Limited.

William M. Murphy, for respondent Heisen.

OPINION

MONROE J.

Statement of the Case.

In December, 1903, the applicant brought suit in the district court for the parish of Madison against Charles C. Heisen and the El Dorado Lumber Company, Limited, for the recovery of a tract of land lying in the parish and described as the S. E. 1/4 section 22, township 15 N. range 11 E., alleging that she had inherited the land as the sole heir of her mother, Mrs. Margaret Ann Copley; "that said tract was pretendingly and fraudulently assessed and listed * * * in the name of Hughes & Woolsey, who did not own and never had owned said tract, * * * for the taxes of 1895 to 1898, upon the rolls of 1899; that under said void and null assessment the said tract was advertised and sold by the tax collector as the property of the said Hughes & Woolsey, under Act No. 170, p. 346, of 1898, to Bolton Smith and W. M Murphy; * * * that said alleged purchasers well knew, and it is notoriously understood, * * * that the title to said tract was not in said Hughes & Woolsey, but in your petitioner, and under those conditions, fraudulently induced, as petitioner believes, the said tract to be so illegally assessed, in order that they might acquire a semblance of title thereto; * * * that said so-called sale is an absolute nullity; * * * that the purchasers held the property for a short time and then transferred only such title as they had to one Charles Heisen, * * * without any warranty whatever, but with a distinct disclaimer of such, even as to the retention of the purchase price; that the said Heisen, * * * on or about the 3d of May, 1902, * * * transferred said tract to the El Dorado Lumber Company, Limited; that each and every act had and done with reference to said illegal acquisition of said tract is null, and void, and in fraud of your petitioners rights; that said so-called assessment and sale thereunder are unconstitutional, illegal, and void, and particularly violative of due process of law, and is an attempt to confiscate petitioner's property under the forms of law and without adequate compensation therefor; * * * that all of said apparent owners of said title have acquired the same with full knowledge, and are bound thereby."She prays for citation and for judgment declaring the title of said Heisen and the El Dorado Lumber Company to be null, recognizing her title, and putting her in possession.

The El Dorado Lumber Company pleaded the prescription of three years, as established by article 233 of the Constitution, and by law denied the charges of fraud, and alleged that it had purchased in good faith, and that plaintiff and her authors, if they ever had title, had long ago abandoned it, and that they had never taken possession of, or exercised any dominion over, or paid taxes on, said land.The company then called its vendor, Heisen, in warranty and prayed for judgment in its favor.Heisen, through a curator ad hoc, pleaded the prescription of three years to the plaintiff's demand, and the general issue to the demand in warranty.

Upon the trial, most of the facts were admitted, and, as admitted or proved, present the following case, to wit: The land here claimed was acquired by entry from the state, in 1856, by Mrs. Margaret Copley, a widow, then residing in the parish of Ouachita, and her title was registered in the book of abstracts of entries, in the parish of Madison, and, later, probably about 1889 or 1890, her name was placed upon the subdivision in question as the same is delineated upon the official map of the parish, made by F. B. Dawson and in constant use by the officers of the parish.The records of the parish fail to show any alienation by Mrs. Copley (who died in St. Louis in 1892) or her heirs, but the land had not been assessed, no taxes had been paid, and no one had been in actual possession of it, for 40 years prior to 1898.Mrs. Copley does not appear to have resided in Madison Parish and the plaintiff, who is her daughter and sole heir, testifies that her mother did not know that she owned said land.Plaintiff's counsel, who formerly lived in Ouachita, knew Mrs. Copley, and testifies that she was known to a former tax collector of Madison parish, who is still living there, and that he(the counsel) never heard of any one inquiring concerning her.There is, however, nothing to show that any one in the parish of Madison knew of the whereabouts of Mrs. Copley at the time of her death, or of the fact of her death, or that any one knew the plaintiff, or knew that she was the heir of Mrs. Copley, and it is not suggested that the succession of Mrs. Copley was ever opened, in the parish of Madison, or elsewhere.About the year 1898, W. M. Murphy was employed by the police jury and levee board of Madison Parish to find lands subject to taxation, but which were not being taxed, and in the course of that employment, he caused the land in question to be assessed, on the roll of 1898, for the taxes of that year and of the three preceding years, to "Hughes & Woolsey, or unknown owner"; Hughes & Woolsey representing the names of two married daughters of Thomas Ribby, who owned a great deal of land in the parish, but who had never owned the land so assessed.Why Mr. Murphy caused this land to be thus assessed is not explained, though he testified in the case, and it seems from his testimony that he knew that it appeared on the official map of the parish as the property of Mrs. Copley, and it does not appear, from his testimony or otherwise, that he obtained any other information concerning it from the abstracts and records examined by him.It may, also, be remarked, in this connection, that neither of the defendants took the stand to deny the knowledge of fraud imputed to them.Under the assessment as thus made, and a like advertisement, upon June 10, 1899, the land in dispute was sold by the tax collector to Bolton Smith and W. M. Murphy, whose title was recorded, June 20, 1899, and on December 7, 1899, Smith and Murphy sold to the defendant Heisen, a nonresident of the state, by an act which declares that:

"This sale is made by quitclaim only, without any warranty; that the vendee waives all claims to the restitution of the price he has paid, in case of trouble or eviction, the vendors knowing nothing of their titles, and making no representations with reference to the same, the vendors selling such interest as they have in the property, and nothing more."

This act covering the sale of 5,678.69 acres, was made for $ 1,794.50, and was duly recorded, May 3, 1902.Heisen sold the land so required to the El Dorado Lumber Company, Limited(his codefendant), by an act which was recorded, May 12, 1902.The tax purchasers or their vendees have paid taxes since the tax sale, but have not taken actual possession of the land.

Opinion.

The questions to be decided are: Does the prescription relied on apply to the facts disclosed, and if so, does such application amount to a taking of plaintiff's property without due process of law?

Article 210 of the Constitution of 1879 reads:

"There shall be no forfeiture of property for the nonpayment of taxes, but at the expiration of the year, * * * the collector shall, without suit, and after giving notice to the delinquent, in the manner to be provided by law [which shall not be by publication except in the cases of unknown owners], advertise for sale the property on which the taxes are due in the manner provided for judicial sales, and, on the day of sale, he shall sell such portion of the property as the debtor shall point out, and, in case the debtor shall not point out sufficient property, the collector shall, at once, and without delay, sell the least quantity of property which any bidder will buy for the amount of the taxes, interest and costs.The sale shall be made without appraisement, and the property shall be redeemable at any time for the space of one year, by paying the price given, with 20 per cent. and costs added.No sale of property for taxes shall be annulled, for any informality in the proceedings, until the price paid, with 10 per cent. interest, be tendered to the purchaser.All deeds of sale made, or that may be made, by collectors of taxes, shall be received by the courts in evidence as prima facie valid sales."

It will be observed that this article established no prescription against actions to annual tax sales and, in construing its provisions, requiring notice to the delinquent tax debtor, and those of the statute law, requiring an assessment in the name of the owner, as conditions precedent to the sale of property for taxes, with the provisions of the statutes establishing different terms of prescription against such actions (Civ. Code, Art. 3542;Act No. 105, p. 154, of 1874;Act No. 85, p. 111, of 1888), it was held by this court that the prescription so established did not apply in cases where there was no valid assessment in the name of and no notice to the delinquent tax payer.(Lague v. Boagni,32 La.Ann. 912;Breaux v Negrotto,43 La.Ann. 426, 9 So. 502).There were, besides, other grounds upon which it was hoped by some and feared by others that tax titles might be annulled, notwithstanding the prescription so established; and upon the whole the condition of the law was unsatisfactory, as well to the state as to the public at large, since the state, as...