Wilkie v. Cox

• Decision Date: 12 March 1969
• Docket Number: No. 2581,2581
• Citation: 222 So.2d 85
• Parties: B. B. WILKIE, Plaintiff-Appellee, v. G. W. COX, and his Heirs, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 85

222 So.2d 85

B. B. WILKIE, Plaintiff-Appellee, v. G. W. COX, and his Heirs, Defendant-Appellant.

No. 2581.

Court of Appeal of Louisiana, Third Circuit.

March 12, 1969.

Rehearing Denied May 15, 1969.

Writ Refused June 27, 1969.

Cunningham & Cunningham, by W. Peyton Cunningham, Natchitoches, for defendant-appellant.

Gahagan & Gahagan, by Russell E. Cahagan, Natchitoches, Bethard & Bethard, by Henry Bethard, III, Coushatta, for plaintiff-appellee.

Before SAVOY, HOOD and CULPEPPER, Judges.

HOOD, Judge.

This suit was filed originally as an action to quiet a tax title. It was instituted by B. B. Wilkie against the heirs of George W. Cox, deceased. The defendants filed an answer and a third party petition, impleading W. J. Colbert as a party to the suit, attacking the validity of the tax sale which plaintiff seeks to confirm, and alledging record title in defendants. Plaintiff impleaded Howard L. Raphiel as an additional defendant.

Thereafter a number of pleadings were filed by the parties, among which were pleas or exceptions of prescription filed by plaintiff Wilkie and by third party defendant Colbert. In these last mentioned pleadings, Wilkie and Colbert allege that they and their authors in title have possessed the property for more than ten years under a deed translative of title, and that they thus have acquired the ownership of the subject property by prescription of ten years acquirendi causa. Wilkie demands that he be recognized as the owner of the north one-half of that property, and Colbert demands that he be recognized as the owner of the south one-half of it.

At the trial, the case was treated as a petitory action, and all parties apparently concede that the issue presented here involves a determination of the ownership of the property. Plaintiff and Colbert contend primarily that they acquired record title to this tract of land by virtue of a 1941 tax sale, and alternatively that they acquired ownership of it by acquisitive prescription of ten years under the provisions of LSA-C.C. art. 3478. Defendants contend that they are owners of the property by record title, and that they should be recognized as owners of it.

The case was tried on its merits, and judgment was rendered by the trial court confirming the tax title, recognizing B. B. Wilkie and W . J. Colbert as owners of the property and enjoining the remaining defendants from claiming title to that property. The original defendants have appealed.

The property affected by this montion proceeding is described as follows:

SW 1/4 of NW 1/4 of Section 8, Township 7 North, Range 9 West, Natchitoches Parish, Louisiana.

This tract of land, comprising about 40 acres, was homesteaded by George W. Cox some time prior to 1903, and a patent was issued to him by the United States on May 24, 1909. The property was assessed for taxes prior to the issuance of the patent, however, and it was adjudicated to the State of Louisiana at a tax sale held on July 2, 1904, for unpaid taxes due for the year 1903, under an assessment in the name of G. W. Cox. No question is raised in this proceeding as to the legality of that tax sale or as to the validity of the adjudication to the State at that time.

The property was not redeemed from the state until April 13, 1965, when a certificate of redemption was issued by the Register of the State Land Office certifying that it was then redeemed to G. W. Cox. The property thus remained unredeemed for a period of almost 61 years, from July 1, 1904, until April 13, 1965.

In spite of the fact that the property had been adjudicated to the state on July 2, 1904, it was allowed to remain on the tax rolls for a number of years thereafter under assessments at various times in the name of 'G. W. Cox,' or 'George Cox, Sr.,' or 'G. W. Cox, Sr.' And, under those assessments, the same property was again adjudicated to the State of Louisiana on at least five other separate occasions for unpaid taxes due for the years 1904, 1909, 1920, 1921, 1922, 1923, 1924 and 1937.

Finally, at a tax sale held on June 18, 1941, this property was sold and adjudicated to 'Howard L. Raphiel, Trustee,' for unpaid taxes due for the year 1940, under an assessment in the name of G. W . Cox. Plaintiff Wilkie, and third party defendant W. J. Colbert, acquired record title to the property from or through Raphiel, the purchaser at the above mentioned tax sale. Both of those parties, Wilkie and Colbert, claim to be owners of the property by record title, and their claim of ownership by such a title, of course, depends upon the validity of the 1941 tax sale to Raphiel. One of the important issues presented on this appeal, therefore, is whether that tax sale to Raphiel is valid.

Defendants contend that the 1941 tax sale to Raphiel is an absolute nullity, because the property previously had been adjudicated to the state and it had not been redeemed prior to the time of that tax sale. They contend that under those circumstances the taxing officers of the state were without authority to assess and sell the property as belonging to the former owner, and that the tax sale thus is void.

Plaintiff concedes that the property had been adjudicated to the state for unpaid 1903 taxes, and that it had remained unredeemed up to the time of the 1941 tax sale. And, he admits that the taxing authorities thus were without power to assess and sell the property in 1940 and 1941 as belonging to the former owner. He contends, however, that defendants are now barred from asserting the invalidity of the 1941 tax sale by: (1) Prescription or peremption of five years as provided in Article 10, Section 11, of the Louisiana Constitution, and LSA-R.S. 47:2228; (2) the prescription of two years or five years as provided by LSA-C.C. art. 3543; (3) the prescription of 13 years liberandi causa provided in LSA-R.S. 41:1328; and (4) the prescription of ten years acquirendi causa as provided in LSA-C.C. art. 3478.

The pertinent portion of Article 10, Section 11, of the Louisiana Constitution provides:

'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.'

Although this provision of the Constitution seems to restrict the grounds upon which a tax sale may be annulled after the lapse of the five year peremptive period thereon provided, our jurisprudence has been established to the effect that such a sale may be set aside on other grounds after that period of time has elapsed.

Where property has been adjudicated to the state, and has not been redeemed in the time and manner provided by law, the taxing officers of the state are without authority to assess and sell the property for taxes as belonging to the former owner or any other person. The purported sale of property for unpaid taxes under those circumstances is an absolute nullity, and an interested party is not barred by the peremption provided in Article 10, Section 11, of the Louisiana Constitution, from asserting the invalidity of such a sale . Heirs of Boagni v. Thornton, 132 So.2d 494 (La.App.3d Cir. 1961; Thomas v. Bomer-Blanks Lumber Co., 105 So.2d 299 (La.App.1st Cir. 1958); Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225 (1948); Neal v. Pitre, 142 La. 737, 77 So. 582 (1918); Puritan Co. v. Clarkson, 145 La. 1099, 83 So. 315 (1919); Winn Parish Bank v. White Sulphur Lumber Co., 133 La. 282, 62 So. 907 (1913); Cordill v. Quaker Realty Co., 130 La. 933, 58 So. 819 (1912) .

In Puritan Co. v. Clarkson, supra, for instance, our Supreme Court said:

'Appellant relies upon a plea of prescription of three years, under article 233 of the Constitution. It has been decided that a sale, purporting to be a sale for taxes, of lands belonging to the public domain, and therefore not subject to assessment for taxes, is an absolute nullity, not protected by the provisions of article 233 of the Constitution.'

And in Bogani Heirs v. Thornton, supra, we said:

'Since the property at issue here had previously been adjudicated to the State, and had not been redeemed in the manner provided by law at the time of the 1912 tax sale, we are convinced that the 1912 tax sale to Boagni (by the Tax Collector, for state, parish and special taxes) was null and void * * *'

'* * * The prescription or peremption provided in the above cited sections of the constitution (Const., 1898, art. 233; and Const., 1921, Art. 10, Sec. 11), however, is not applicable to a purported sale for taxes of public property * * *'

In the instant suit the evidence shows that the property at issue here had been adjudicated to the state, and it had not been redeemed by the time of the 1941 tax sale. Under those circumstances, we conclude that the purported tax sale to Raphiel on June 18, 1941, is an absolute nullity, and that defendants are not barred by peremption, as provided in Article 10, Section 11, of the Louisiana Constitution, from asserting that invalidity.

We find no merit to plaintiff's claim that defendants are barred from attacking the 1941 tax sale by LSA-R.S. 9:5803, by LSA-C.C. art . 3543 or by LSA-R.S. 41:1328. We feel, however, that the provisions of LSA-R.S. 9:5803 are applicable in determining the issues raised by plaintiff's plea of prescription of ten years acquirendi causa.

The next important issue presented is whether plaintiff and Colbert have acquired the ownership of the subject property by prescription of ten years acquirendi causa, as provided in LSA-C.C. art. 3478 et seq.

The evidence shows that after the 1941 tax sale was completed Raphiel, the purchaser, formally acknowledged that at that tax sale he had purchased the property for himself and for ...