Claiborne v. Lezina , 175 La. 635 ( 1932 )

This is a suit to confirm a tax title. The property the tax deed purports to convey was assessed, for the year 1921, in the name of the then record owner, the New Orleans Homesite Company, Limited. It was sold on June 12, 1922, at a delinquent tax sale, to Lydia H. Rush, for the taxes due thereon to the city of New Orleans for the year 1921. The property was described in the assessment and tax deed as follows:

"A certain lots of ground Orleans, designated as Lots No. _____ Third District of the City of New Orleans, designated as Lot No. _____, in Square No. 579, bounded by Egania, Villere, Robertson, Andry, and measure var. feet front by var. feet in depth."

In 1928 Lydia H. Rush, who does not appear to have ever owned any property in the square bounded by Egania, Villere, Robertson, and Andry streets, except such as she may have acquired by the said tax deed, sold to the plaintiff the following described property:

"Sixteen certain lots of ground and improvements thereon, situated in the Third District of the City of New Orleans in the Square bounded by Andry, Egania, Villere and N. Robertson streets and designated as Lots Nos. 5-6-10-11-12-13-14-15-16-17-20-21-22-23-24 and 25 in Square No. 579, Lots 5-6 10 Measure each 31 feet front on Andry Street by a depth of 112' 2". Lot No. 11 forming the corner of Andry and N. Robertson Streets measures 31' 2" front on Andry Street by a depth and front on N. Robertson Street of 112' 2". Lots Nos. 12-13-14 measure each 30 feet front on N. Robertson Street by a depth between parallel lines of 170' 3". Lot No. 15 forming the corner of N. Robertson and Egania streets measures 31' 2" front on Egania street by a depth and front on N. Robertson street of 112' 2". Lots Nos. 16-17-20-21-22-23 and 21 measure each 31 feet front on Egania street by a depth between parallel lines of 112' 2". Lot No. twenty-five forming the corner of Egania and Villere streets, measures 31' 2" front on Egania Street by a depth and front on Villere street of 112' 2". Acquired C.O.B. 351, Fo. 504."

The New Orleans Homesite Company, Limited, was the record owner of said property on January 1, 1921. Hypolite Lezina acquired the sixteen lots on July 21, 1921, at a sale thereof had in the execution of a judgment obtained by Frank Twomey against the New Orleans Homesite Company, Limited. This sale was recorded September 3, 1921. Lezina thereafter sold lots 5 and 6 to Arthur Talley. It is because of this sale to Talley that he is made a defendant in this suit.

It will be noted that in the sale by Lydia H. Rush to the plaintiff the origin of his vendor's title is given as the tax deed which he seeks to confirm, and also to have himself recognized as the sole owner of said property and to have the defendants enjoined from asserting any right to or interest therein.

The defendants excepted to the petition as not disclosing a right or cause of action, and, reserving all rights under the exceptions, filed separate answers to the suit. Both defendants allege the nullity of the tax deed for three reasons, viz. insufficient description of the property; payment of the taxes due thereon for the year 1921, prior to the expiration of that year; and nonservice of notice upon the record owner. Both defendants reconvened. Hypolite Lezina prays, in reconvention, to be recognized as the owner of the property, except lots 5 and 6, and prays, in the alternative, for judgment for $634.59, the sum of the taxes paid by him on said property, with interest thereon, and Auther Talley prays to be recognized as the owner of lots 5 and 6, and, in the alternative, for judgment for $168.32, with interest thereon, for the taxes paid by him on said lots.

The trial judge maintained both exceptions, dismissed the suit with costs, and the plaintiff appealed.

Appellant has not followed up the appeal. He has not made an appearance in this court or filed a brief in the case.

In our consideration of the exceptions, we must confine ourselves to the allegations of the petition and the facts disclosed by document annexed to or filed in connection therewith. The tax deed it is sought to confirm is attached to and made a part of the petition. The recitals of the deed are therefore controlling, and the description of the property it purports to convey is quoted, supra.

It is alleged in the petition that the property involved in this suit was acquired by the New Orleans Homesite Company, Limited, from the Egania Realty Company, Limited, on June 22, 1912, and that it remained the record owner of the property until September 3, 1921. Therefore, at the time the 1921 assessment of the property was made, the New Orleans Homesite Company, Limited. owned sixteen lots in the Third district of the city of New Orleans, in square No. 579, bounded by Egania, Villere, Robertson, and Andry streets. The assessment quoted supra does not pretend to assess all of the lots owned by the New Orleans Homesite Company, Limited, in said square No. 579, nor does it pretend to assess any number of lots, nor any particular lot, nor any part of a lot. A mere reading of the assessment convinces us that it describes nothing, and that a sale under it conveyed nothing. The rule that there can be no sale of property which is neither identified nor susceptible of identification is too well settled to require quotation from the authorities. We will, therefore, content ourselves with citing the following cases: Wilson v. Marshall, 10 La. Ann. 329; Person v. O'Neal, 32 La. Ann. 228; In re Baton Rouge Oil Works, 34 La. Ann. 255; Scott v. Parry, 108 La. 11, 32 So. 188; Guillory v. Elms, 126 La. 560, 52 So. 767; Amrhein v. Nylka Land Co., 137 La. 570, 68 So. 957; Board of Commissioners of Fifth Louisiana Levee Dist. v. Concordia Land Co., 149 La. 1053, 90 So. 402.

For the foregoing reasons, we find that the petition does not disclose a right or cause of action. The judgment is correct, and it is affirmed at appellant's cost.

On Rehearing.