Breaux v. Negrotto

43 La. Ann. 426

• Court: Supreme Court of Louisiana
• Decided: April 15, 1891
• Docket: No. 10,677
• Status: Published

Opinions

The opinion of the court was delivered by

McEnery, J.

This is a suit to annul a tax sale.

The tax-collector, in pursuance of Act 77 of 1880, and Act 96 of 1882, advertised for sale the following property for unpaid taxes of 1881, assessed in the name of Alexander Delhomme, and in the absence of any bidders according to the provisions of said Act No., 96 ■of 1882 it was adjudicated to the State:

Two lots of ground in the first district of the City of New Orleans, in the square bounded by Magazine, Race, Constance and Orange streets, adjoining each other and measure each 27 feet front on Magazine street by 125 feet in depth between parallel lines, according to a plan by Benjamin Buisson, surveyor.

On the 13th day of June, 1889, the property was adjudicated to the defendant, Negrotto, by the tax-collector, under Act 80 of 1888.

The plaintiff claims that the sale of his property as aforesaid was an absolute nullity for the following reasons:

1. The tax-collector could not sell to the defendant, Negrotto, without statutory warrant, and this statutory warrant, Act 80 of 1888, requires that the property be advertised thirty days, whereas the tax-collector only advertised it five times in thirty days.

That the advertisement for full thirty days was a condition precedent to the sale', was intended as notice to protect petitioner, and the attempt to sell his property without such advertisement, is a taking of his property without due process of law, in violation of the fifth amendment to the Constitution of the United States, the Statute providing that such advertisement shall be a full, complete notice to all persons and parties in any wise interested in said property, and no other notice shall be required, and the same shall operate as a complete citation to all.

That the act asssailed falsely recites that the property has been advertised thirty days, and is not such an act as is called for by law, containing general recitals and conclusions of law instead of recitals of fact, and is not entitled to the character annexed by the law of 1888, to such acts as are passed in compliance with its provisions. And the recitals in the act operate as a fraud upon petitioner’s rights.

2. That Act 80 of 1888, if constitutional, provides solely for the sale of property belonging to the State, and as the State has no title to petitioner’s property, it did not come within the purview of that act, and the tax-collector had no authority inlaw to sell.

3. The State had no title to petitioner’s property because:

(а) The tax of 1881 whs, and is null and void, because not equal and uniform as provided by Article 203 of the Constitution.

(б) That the tax of 1881 was prescribed at the time of the pretended adjudication to the State.

(c) Act 77 of 1880, which govern the assessments, levy and collection of the tax of 1881, as set forth in the act of sale to the State, did not authorize the tax-collector to purchase in the name of the State, and - therefore his act in so doing was without warrant in law and void.

(d) The Constitution and laws in force at the time required notice to the tax-payer before his property could be sold, and no notice was given, and therefore the tax-collector was without warrant in law to seize and sell.

(e) The law provides that property adjudicated to the State shall only be assessed for one year thereafter in the name of the owner, and must be assessed upon a separate roll. After that time it contemplates that the tax-collector shall take possession and collect revenues, thus providing a means of notice to the tax-payer that his property has been sold so as to allow him full opportunity to redeem. That nothing of the kind was done in this case, but the State exacted and collected taxes, and at all times treated and dealt with the property as that of petitioner, and was and is estopped to set up title in herself.

4. Act 80 of 1888 is unconstitutional in so far at least as it undertakes to cure prior assessments and deeds, and to give a certain character to deeds as evidence, because no such purpose is stated in its title, and because it is not in the power of the Legislature to validate deeds absolutely void, and transfer a man’s property to the State by legislative declaration, such law being obnoxious to the fifth amendment of the Constitution of the United States and to several articles of the Constitution of Louisiana.

5. Act 80 of 1888 in so far as it provides that deeds of sale thereunder shall be conclusive evidence is in conflict with Article 210 of the Constitution, which declares that tax deeds shall only be prima facie evidence.

The defendant filed exception of no cause of action, and want of tender of the price paid by Negrotto, and pleaded the prescription of three and five years.

These were overruled by the District Court.

Defendant answered, alleging the State’s purchase at tax sale in. 1884 of the property assessed to Delhomme, and the purchase by him on June 13, 1889, under Act 80 of 1888; that his title is perfect and prays for recognition thereof, and judgment for revenues, or in the alternative, for amount paid by him for his purchase at the tax sale, which was $110.

There was judgment for the plaintiff, and the defendant appealed.

The petition discloses a cause of action, and tÉe want of tender of the price paid by the defendant, Negrotto, has no application in this case.

The plaintiff in his petition denies that he owed the tax for which his.property was sold. He claims that the tax had been extingished by the prescription of three years. The artible of the Constitution requiring that “no sale of property for taxes shall be annulled for any formailty in the proceeding until the price paid, with 10 per cent, interest be tendered to the purchaser,” certainly does not intend that the party bringing the suit to annul the sale because of the non-existence of the tax, should be required to .do that which would defeat the object of the suit. A tender necessarily requires the existence of the tax. In this case also, the plaintiff was not certain to whom, and for what amount the tender should be made. If his plea of prescription is not maintained, and his other allegations as to the nullity of the proceedings should prevail, he certainly owes Negrotto nothing; but he owes to the State the amount of the tax only, assessed against him for the year 1881.

In the case of Guidry vs. Broussard, we said: “ If a tender was necessary it would have been difficult if not impossible to tell the precise sum that was to be tendered. To entitle a party to insist on a tender, the amount must in legal contemplation be made to appear definite and certain, so that the act to be done and the duty performed, if required, might be intelligently performed. We had occasion to pass upon this point in the case of Miller vs. Montague, 32 An. 1290, recently decided, in which we held that, under a state of facts relating to the want of certainty and confusion in assessment, and the consequent uncertainty in the amount, if any, to be tendered, similar to those here presented, that a tender was not necessary.” 32 An. p. 925. Stafford, Executor, vs. Twitchell, 33 An. p. 520.

Neither the State nor the defendant took possession of the propperty. It remained continuously in possession of the plaintiff and Delhomme, from whom the plaintiff purchased.

The rents and revenues were enjoyed by them. No demand or any attempt was ever made by the State to obtain possession of the property. On the contrary, it only remained in the possession of the plaintiff, but it was carried on the assessment rolls in the name of the plaintiff, assessed to him, and the taxes collected from him. There was no adverse possession which put the plaintiff under notice of the necessity of bringing his action, which failing to do within the prescribed time, the bar of the Statute would apply. Barrow vs. Wilson, 39 An. 409.

The taxed property was adjudicated to the State for the tax assessed against it in 1880, and ^in pursuance of Sections 49, 50, 51, 52 of Act 96 of 1882. The tax-collector’s deed shows that the advertisement and offerings were duly made within the time necessary to prevent prescription. The tax for 1881, therefore, had not prescribed when the property was adjudicated to the State, June 14, 1884.

If the adjudication was legal and valid, the time for redemption having passed, the divestiture of the title of the plaintiff was complete. He has no interest therefore in attacking Act 80 of 1888. It is immaterial to him in what manner the State disposes of her property.

In Martinez vs. State Tax-collector, 42 An. 677 (7 So. Reporter, 796), we said: “ Conceding that the taxes were extinguished by confusion when the State, in the absence of bidders, purchased the property at the sale under Act 96 of 1882, no reasons are urged or can be urged why the State, being the owner of the property, could not sell the same and fix the price and impose such conditions on the sale as she deemed fit and proper. There is no restriction- that can be placed upon the conditions which she may impose upon the sale of her property.”

In the same case we said: “ There is in the Constitution no prohibition on the State to purchase property either at private, public or tax sale.”

This ca.se disposes of both objections of plaintiff,' the attack on Act 80 of 1888, and the right of the State to purchase at tax sale.

The Act No. 80 of 1888 concerns the plaintiff only in its effects as a curative statute.

In the matter of Orloff Lake, 40 An. p. 142, and in re. Douglas, 41 An. 765 (6 So. Reporter, 675), we held that such statutes were constitutional, andm re Douglas, that, if they exceeded legislative power in some respects, they are to be enforced so far as they do not violate the constitutional right of the property holder, and restrained so far as they do.

Article 210 of the Constitution says * * * “ after giving notice to the delinquent in the manner to be provided by law (which shall not be by publication except in case of unknown owner), advertise for sale the property on which the taxes are due, in the manner provided for judicial sales, and on the day of the sale he shall sell such portion of the property as the debtor shall’point out.”

This article refers to sales of property for taxes, and can have no application to the property which the State .sells and to which she has title, whether acquired at tax sale or otherwise.

But if the State acquired no title to plaintiff’s property, because of radical defects in the tax proceeding, she would convey no title to the defendant under the sale made in pursuance of Act 80 of 1888. Guidry vs. Broussard, 32 An. 926; Gibson vs. Hitchcock, 37 An. 209; Baton Rouge Oil Works vs. Dundas, 34 An. 255; Denégre vs. Gerac, 35 An. 952; Gatlin vs. Hutchinson, 36 An. 350; Garic vs. Bush & Levert, 35 An. 1109.

The plaintiff alleges that no notice was served on him in pursuance of the constitutional provision, and Section 35 of Act 77 of 1880, Article 210 of the Constitution requires notice to be served on the delinquent tax payer, in the manner to be provided by law. Section 35 of Act 77 of 1880, provides that notice shall be left at the residence or place of business of the tax debtor and delinquent, or mailed to him by registered letter.

It is contended by defendant and the tax-collector that the marginal note on the assessment roll furnishes full and conclusive proof that the notice was served as directed by said section.

It is only prima facie evidence, and can be disproved in a judicial proceeding. This certificate of the tax-collector, however, applies only to unknown owners, who receive notice by publication, as provided for in Section 36 of the Act.

If the notice provided for in Sections 49 and 50 of Act 96 of 1882v applies to this case, the notice therein is by postal card, but there is no provision made for the evidence of its having been mailed, to be preserved by the certificate of the tax-collector. But we think the evidence is conclusive that no notice of any kind .was ever served on the plaintiff.

Under the Constitutional direction it was discretionary with the General Assembly to provide the mode and manner of the notice. But the Constitution having provided for the notice, it becomes an essential prerequisite to the sale of the property of the delinquent tax payer.

The tax deed to the State, in pursuance to the adjudication to her under the provisions of Act 96 of 1882, recites that the notice to the delinquent had been given in strict compliance with law. The deed is evidence .of a prima facie valid sale. Article 210 of the Constitution. It can be disproved as to the want of one of the essentials to a tax sale. These essentials have been enumerated in re Lake, and in re Douglas, heretofore referred to, and notice as required by the Constitution, may be added to them.

In re Lake we held that the provisions of Section 3 of Act 82 of 1884 “ necessarily imply that all the jurisdictional prerequisites have been complied with, and if in point of fact they have not, the tax title does not preclude an action of nullity based on non-compliance therewith.”

In re Douglas we said: “ Broadly stated, the doctrine is that the Legislature may make the tax deed conclusive evidence of compliance with every requirement which the Legislature might originally in the exercise of its discretion have dispensed with.” As stated by Judge Cooley: “ The general rule has often been declared that the Legislature may validate retrospectively, the proceedings which they might have authorized in advance.” Cooley on Taxation, 222.

Section 4,.of Act'of 1888, is similar to Section 3, of Act 82 of 1884. The Legislature, having discretionary power to provide the mode, manner and. time of notice, can, by remedial legislation, cure such defects as arise from defective service. But it can not dispense with notice altogether. Hence it can not by remedial legislation supply the absence of notice, which the Constitution requires shall be given to the delinquent tax-payer.

Tile Constitution, and Acts No. 77 of 1880, and No. 96 of 1882, re»quire a notice to be given' to the tax delinquent. No notice was given. It was an essential prerequisite to the sale of the property. As Act No. 80 of 1888 does not cure the want of'notice, and as a remedial statute does not apply to the case at bar, the law as stated in Stafford, Executor, vs. Twitchell, is directly applicable. In re Douglas, 41 An. 765 (6 So. Reporter, 675).

In that case this court said: “Amongst the conditions precedent to sell, those the object of which is to charge the taxpayer with notice, actual or constructive, of the proceeding, whether in the assessment or collection of taxes, are the ones universally regarded as mandatory, and of which the most punctillious performance is required. * * * Actual knowledge, however, clearly brought home to the tax payer, can not dispense with the necessity of such notices in conformity with law, and no consent to their waiver can in any case be implied.” 33 An. 529.

The property remained continuously in the. possession of the plaintiff, and he regularly paid the taxes on it. He has paid all taxes to date, Oity and State, with the exception of the tax due the State for the year 1881.,

The tax payer may have been induced to believe that his tax, for some reason known only to the officer, may have been deferred for collection, because of some fault in assessment, or for some other cause. Or he may have been confirmed in his impressions that he had paid it. The latter would seem to be the belief in. this ease, as the plaintiff had paid all of his taxes, and was under the impression, and believed that he had paid the tax of 1881,

Had the State taken possession of the property and collected the revenues within the year of redemption, the plaintiff, by the adverse' possession, would have been informed that his property had been expropriated for taxes. He would not have remained inactive, and permitted his rights to the property to have been imperilled. This is, at least, his testimony, when he says, had he received notice of the tax he would have promptly paid it.

It would be against justice and good conscience to allow the State to asert ownership under such a state of facts 34 An. 361; 28 An. 462.

There are some other reasons alleged by plaintiff why the tax sale . should be annulled. They are not of such importance as to require notice. •

Judgment affirmed.

Bermudez, C. J. concurs in the decree on the ground of want of notice. ■ Watkins, J., concurs for separate reasons. Breaux, J., takes no part.