Thomas v. Bomer-Blanks Lumber Co.
| Decision Date | 30 June 1958 |
| Docket Number | BOMER-BLANKS,No. 4632,4632 |
| Citation | 105 So.2d 299 |
| Parties | Mrs. Olive Baker THOMAS v.LUMBER CO., Inc. |
| Court | Court of Appeal of Louisiana — District of US |
Provosty, Sadler & Scott, Alexandria, for appellant.
Jewell & Jewell, New Roads, Benton & Moseley, Baton Rouge, for appellee.
In this petitory action the plaintiff Mrs. Olive Baker Thomas, seeks to be recognized as the owner of a certain tract of real estate.
The defendant filed pleas of 10-years' prescription and equitable estoppel which, through agreement of counsel, were referred to the merits. Exceptions of no cause or right of action and a plea of prescription and/or preemption were also filed and, upon hearing, were sustained by the trial court, which dismissed the suit. The plaintiff has perfected a devolutive appeal.
According to the petition the plaintiff claims title to the tract in question as the sole and only heir of H. L. Baker and his wife, Jessie Baldwin; H. L. Baker acquired the land through an act of sale from John Deblieux dated September 1, 1917 and recorded September 15, 1917; the property was adjudicated to the State of Louisiana for non-payment of 1917 taxes under an assessment in the name of John Deblieux through deed dated June 22, 1918 and recorded July 22, 1918, which was filed in the State Land Office on July 30, 1918; while title was still in the State of Louisiana the property was sold at tax sale for non-payment of 1924 taxes on June 24, 1925 in the name of H. L. Baker, et al. to Arthur Neal Smith and the deed recorded on June 27, 1925; Arthur Neal Smith, through deed dated December 9, 1929 and recorded January 14, 1930, sold the property to the defendant herein, Bomer-Blanks Lumber Co., Inc. The petition further shows a certificate of redemption was issued by the State of Louisiana, for the tax sale made in 1918, upon December 20, 1938, said redemption having been made in the name of John Deblieux.
The plaintiff maintains the sale to Arthur Neal Smith in 1925 was a nullity since there had been a prior adjudication to the State; also the subsequent sale by Arthur Neal Smith to the defendant herein is likewise a nullity.
Both the exceptions of no cause or right of action and the plea of prescription and/or preemption, are based upon the proposition that according to the Louisiana Constitution the tax sale to Arthur Neal Smith in 1925 is protected by the 5-year preemptive period provided for in Article 10, Section 11 of the LSA-Constitution of the State of Louisiana.
The pertinent paragraph of Article 10, Section 11, reads:
'* * * No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given. The fact that taxes were paid on a part of the property sold, prior to the sale thereof, or that part thereof was not subject to taxation, shall not be cause for annulling the sale as to any part thereof on which the taxes for which it was sold were due and unpaid, provided that the provisions hereof shall not affect any pending suit, nor any suit which may be brought within a period of twelve months from...
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