Ducuy v. Falgoust

83 So. 2d 118, 228 La. 533, 1955 La. LEXIS 1387

• Court: Supreme Court of Louisiana
• Decided: June 30, 1955
• Docket: 41481
• Status: Published

Opinions

MOISE, Justice.

Mark J. Falgoust appeals suspensively to this Court from a judgment ordering specific performance of a contract, dated September 1, 1952, to purchase two certain lots of ground and the improvements thereon from Mrs. Estella Ducuy, wife of Murphy Bazart, and Murphy Bazart.

Defendant’s reconventional demand for the return o.f his deposit, plus a similar sum and incidental fees, was dismissed.

Mr.' and Mrs. Bazart claim to be the ofvners of the property described as 3017 Benefit Street; located in this city.-

On title examination the appellant refused to purchase the property because he was informed, and so believed, that the title thereto was neither merchantable nor marketable and that it possibly fomentated litigation to cure the imperfections in title. Defendant’s refusal was predicated on the fact that this property had been sold to Zor, Inc., for unpaid taxes of 1951, and that the attorneys for plaintiffs had been unsuccessful in securing a redemption certificate after tendering to the company an amount for redemption. In refusing to furnish a redemption certificate, the president of the company stated:

“My Directors have instructed me not to execute the attached act of redemption.”

Zor, Inc., intervened in the proceedings, contending that the title tendered by plaintiffs was marketable.

On September 23, 1952, after the unsuccessful attempts to secure a redemption deed from Zor, Inc., appellees deposited with the State Tax Collector for the City of New Orleans the sum of $20.04. The deposit was accompanied by letter, a duplicate original of which was recorded in the Conveyance Office for the Parish of Orleans. Thereupon,' appellant’s counsel, having been informed that a deposit had been made, called upon George Montgomery, Jr., .State Tax Collector for the City of New Orleans, to inquire what steps, if any, the Tax Collector would take in amending or rfe-jssuing a State Tax Research Certificate, concerning the property in question. Appellant ■was informed by Mr. Montgomery that on any subsequent “Tax Research Certificate it would be shown that the property had been sold to Zor, Inc. and no mention would be made of a redemption by the appellees.” He further stated that subsequent Tax Research Certificates would not reflect that .appellees had deposited with him any sum for the purpose of effecting a redemption, .and that he could not issue a tax redemption certificate in favor of the appellees since the title was in the name of a tax purchaser .and not the State Tax Collector.

The learned counsel for appellant has written a most careful brief, in which he outlines various grounds as to his position .that- the judgment of the district court should be reversed and set aside, but we do not think it necessary to go into any other reason or ground, except those that are nec-. essary for a decision.

The plaintiffs contend that they offered to this defendant a merchantable title not subject to litigation, and they invoked Act 133 of 1928, as amended, LSA-R.S. 47:2222, which reads:

“In all cases where two or more lots or parcels of land have been assessed as a whole without distinguishing the valuation of each lot or parcel separately and have been adjudicated as a whole to a tax purchaser in the name of any one person, the owner or any person interested personally, or as heir, legatee, creditor, or otherwise, may redeem a lot or lots or parcels, of ground by paying to the tax purchaser the proportionate taxes due thereon together with interests, costs, and five percentum (5%) penalty thereon. The person in interest shall secure a certificate signed by the assessor and approved by the tax collector of the parish in which the property is located, showing the proportion of taxes due on the lot or lots or parcels of land desired to be redeemed.

“The payment required for the- redemption of immovable property adjudicated to a purchaser for taxes, may be made either to the purchaser or to the tax collector making the sale, or to his successor in office.” See, La.Const. of 1921, Article X, sec. 11, permitting redemption of property.

The plaintiffs rely on the case of Laughlin v. Hayes, 189 La. 707, 180 So. 494. The,, Laughlin case does definitely hold that re-, demption may be accomplished in two ways, as shown above, but it does not declare, that a redemption deed is not necessary in order to convey title. While there are cases, that are not identical to the factual situation, herein, there are many cases in which;the. principle of the law contended .for-by this defendant has been approved. There are also cases in which legal deficiencies have given rise to a break in the chain of title, or a title reasonably suggestive of future litigation, such as we have here.

Mr. Montgomery says that he did not issue an act of redemption because that was a matter left to Zor, Inc., and not to the State Tax Collector. We believe this is correct and that the principle here invoked will be fortified by the following cases: Praegner v. Kinnebrew & Ratcliff, 156 La. 132, 100 So. 247; Lockhart v. Smith, 47 La. Ann. 121, 16 So. 660; Lear v. Great National Development Co., Inc., 215 La. 749, 41 So.2d 668; Schaub v. O’Quin, 214 La. 424, 38 So.2d 63; Marsh v. Lorimer, 164 La. 175, 113 So. 808; Hero v. Bloch, 44 La. Ann. 1032, 11 So. 821; James v. Meyer, 41 La.Ann. 1100, 7 So. 618; Beer v. Leonard, 40 La.Ann. 845, 5 So. 257; Carter v. Morris Building & Land Improvement Association, 108 La. 143, 32 So. 473; Scheuermann v. De Latour, 130 La. 549, 58 So. 223; and Stafford, Derbes & Roy, Inc., v. De Gruy, 172 La. 160, 133 So. 430.

The conclusion impresses itself on our minds that the Legislature of 1954 must have realized that a person whose property had been sold for taxes had a double means of redeeming that property to prevent it from loss, but that he would still be unable to tender a marketable title if the tax purchaser would not give him a redemptive deed. This case will not serve as a precedent in the future, because the law has been changed by Act 598 of 1954, which grants the tax collector the right to- execute a certificate of redemption.

It is to be observed that possession of this property passed from appellees to Zor, Inc., at the time of the sale. Thereafter, appellant must assume that Zor, Inc., actually went into possession of the property.

In addition to interest, penalties and cost, the tax purchaser might claim reimbursement for any improvement he has made to the property.

The defendant, by reconventional demand, claims double his deposit. The vendors are not unwilling to comply with the above agreement, but it is the refusal of Zor, Inc., to execute a redemption deed which prevents their being able to convey a marketable title. Under the conditions, we do not think that they can be held for double the deposit and for the payment of certificates furnished. The very contract itself specifies that the cost of the certificates shall be borne by the vendor of the property.¹

For the reasons assigned, the judgment of the trial court ordering the defendant, Mark J. Falgoust, to comply with the agreement dated September 1, 1952, is reversed and set aside;

It is further ordered that plaintiffs return to the defendant, Mark J. Falgoust, his deposit of $780; that the judgment of the trial court dismissing the intervention of Zor, Inc., is affirmed; that the judgment of the trial court dismissing the reconventional demand of defendant, Mark J. Falgoust, is reversed and set aside. All costs to be paid by the plaintiffs.

MOISE, J., concurs.

1 . Johnson v. Johnson, 213 La. 1092, 36 So.2d 396, and authorities therein cited.