Gulf States Corp. v. Barberate

486 So. 2d 843, 1986 La. App. LEXIS 6510
CourtLouisiana Court of Appeal
DecidedMarch 25, 1986
DocketNo. 85 CA 0096
StatusPublished
Cited by2 cases

This text of 486 So. 2d 843 (Gulf States Corp. v. Barberate) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulf States Corp. v. Barberate, 486 So. 2d 843, 1986 La. App. LEXIS 6510 (La. Ct. App. 1986).

Opinion

SHORTESS, Judge.

Gulf States Title Corporation (Gulf States) and Ronald E. Rodriguez (Rodriguez) brought a joint petition to confirm tax titles to certain property situated in the Parish of St. Tammany, acquired by them at tax sale for non-payment of property taxes for the year 1975. Defendants were the surviving spouse and heirs of Andrew A. Massicot, and Pierre Barberate.1 Several of the defendants were alleged to be absentees, and a curator ad hoc was appointed to represent them. Neolie Massi-cot Carmouche appeared and filed an answer. With separate counsel, Halsey Andrew Newbrough Simmons and Celeste Newbrough also appeared and answered. A preliminary default was entered against the only other defendant who was actually served, Gerald Gandolfo. The curator ad hoc filed responsive pleadings for the remaining defendants. The matter proceeded to trial. The court rendered judgment in favor of the petitioners and confirmed their respective tax titles. Neolie M. Car-mouche (appellant) is the only defendant who has appealed. The judgment is therefore final as to all other defendants.

The applicable pertinent facts are as follows:

(1)Gulf States acquired Lots 19, 20, 21 and 22, square 346A, Mandeville, by a tax deed recorded May 28, 1976, said property being assessed in the name of Halsey A.N. Simmons.

(2) Rodriguez acquired Lots 23 and 24, Square 346A, Mandeville, by tax deed recorded May 28, 1976; said property being assessed in the name of Norita Newbrough Simmons.

(3) Both of said properties described above had been acquired by Andrew Massi-cot and his wife Norita N. Massicot on October 8, 1926.

(4) By a judgment of possession signed in connection with the Succession of Andrew A. Massicot, dated April 11, 1963, Norita Newman Massicot as surviving spouse and owner of an undivided one-half interest and Norita Massicot Newbrough, Neolie Massicot Carmouche, and Ynola Massicot Gandolfo as sole heirs and owners of the remaining one-half interest were placed in possession of the properties in question.

(5) The surviving spouse, Norita Newman Massicot, conveyed her one-half interest in Lots 23 and 24 of Square 346A to Norita Newbrough Simmons.

(6) Norita Newman Massicot conveyed her one-half interest in Lots 19, 20, 21 and 22 of Square 346A to Halsey Andrew Newbrough Simmons by deed dated December 10, 1968.

(7) At the time of the tax sale to Rodriguez, the record owners of Lots 23 and 24, Square 346A, were Norita Newbrough Simmons (undivided interest, one-half), Norita Massicot Newbrough (undivided interest, one-sixth), Neolie Massicot Carmouche (undivided interest, one-sixth), Ynola Massicot Gandolfo (undivided interest, one-sixth).

(8) At the time of the tax sale to Gulf States, the record owners of Lots 19, 20, 21 and 22, Square 346A, were Halsey Andrew Newbrough Simmons (undivided interest, one-half), Norita Massicot Newbrough (undivided interest, one-sixth), Neolie Massicot Carmouche (undivided interest, one-sixth), [845]*845Ynola Massicot Gandolfo (undivided interest, one-sixth).

(9) Ynola Massicot Gandolfo later, by quit-claim deed dated May 22, 1979, conveyed her interest in both properties to the following named defendants:

1. Celeste Newbrough
2. Halsey Andrew Newbrough Simmons
3. Charles M. Gandolfo
4. Diane Newbrough Jamil
5. Elaine Newbrough
6. Gerald Gandolfo, and
7. Norita Newbrough Simmons.

(10) The chain of title also shows Pierre Barberate acquired title to the entire square by deed dated July 16, 1857. No divestation of this title could be found as to Barberate’s interest.

(11) The 1975 St. Tammany Parish tax rolls show that Lots 23 and 24, Square 346A, were assessed in the name of Norita Newbrough Simmons.

(12) The 1975 St. Tammany Parish tax rolls indicate that Lots 19, 20, 21 and 22, Square 346A, were assessed in the name of Halsey A.N. Simmons.

(13) Both tax adjudications indicate that the property sold was correctly described using the proper lot numbers and square within the City of Mandeville.

(14) No redemptions were made of either of these two tax adjudications.

(15) The suit to confirm these tax sales was brought on December 21, 1983, more than five years after the recordation of the two tax sales.

(16) The properties in question are vacant, unimproved and wooded, and there has been no physical possession of same by any co-owner since the adjudications.

The trial court made the following findings of fact:

The present action was filed on December 21, 1983, more than five years after the date of the two subject tax sales. The record establishes and this Court finds that the property was correctly described in these two tax sales. There were no redemptions of these tax sales. Additionally, there has been no possession of subject properties by or on behalf of the tax debtors.

The trial court basically held that our decision in Hubbs v. Canova, 392 So.2d 486 (La.App.1st 1980), writ granted, 396 So.2d 1326 (La.1981), did not require notice to all co-owners because the Supreme Court, while it affirmed our decision, approached it from a different point of view. It held that since the descriptions in the assessment and tax sale did not adequately describe the subject property, the tax sale was null and void, and the five-year per-emptive period provided for in La. Const, art. VII, § 25, would not be applicable since the sale was a nullity. Hubbs v. Canova, 401 So.2d 962 (La.1981).

Making that distinction, the trial court then held:

The only defense to a tax sale after the deed has been of record for a period of more than five years is proof of prior payment of the taxes for the year in which the property was adjudicated. Louisiana Constitution of 1974, Article VII, Sec. 25. The record establishes that there was no prior payment of 1975 taxes.

The issue is whether the constitutional peremptive period of five years provided for in Article VII, § 25, is applicable to a tax adjudication of property owned in indi-visión when the tax notice goes to one of the record owners and not to the other record owners.

Our Supreme Court has answered this question in favor of the tax vendee. In Yuges Realty v. Jefferson Parish Developers,2 205 La. 1033, 18 So.2d 607, 609 (1944), the court said:

This court has repeatedly held that, for the purpose of prescription under the [846]*846Constitution, it is immaterial whether the assessment was made in the name of the true owner, or in the name of another, or in no name at all. Griffing et al. v. Taft, 151 La. 442, 91 So. 832, and the long list of cases therein cited on this point; Tillery v. Fuller, 190 La. 586, 182 So. 683.

The Supreme Court, as well as several circuit courts, has cited Yuges for the above rule with approval ever since. For example, in Gulotta v. Cutshaw, 283 So.2d 482, 492 (La.1973), the court said:

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Related

Catania v. Stuart
512 So. 2d 1189 (Louisiana Court of Appeal, 1987)
Gulf States Corp. v. Barberate
492 So. 2d 1217 (Supreme Court of Louisiana, 1986)

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Bluebook (online)
486 So. 2d 843, 1986 La. App. LEXIS 6510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-states-corp-v-barberate-lactapp-1986.