Succession of Pizzini , 3 Pelt. 394 ( 1919 )

opimos.

St. Paul, J.

This appeal involves only a claim for an inheritance fax. fhe oaae a thus stated (in anbetanoe) by the Counsel for the fax Colleotor.

_ "Paul Pixxini, before he died, made a binding agreement to sell a piece of real estate to the Order of Elks for $18000. After hla death his administrator (acting under an order of oourt) exeouted the usual (formal) aot of Sals transferring the property, fhe fax Colleotor oontended that at the time of hla death Pizslni no longer owned the real estate (on whioh taxes had regularly beeh paid) but had merely a claim for $18000 against the Rika, purchasers of the property; whioh being personal property (and haring# previously paid no taxes) was subject to the Inheritance fax.” Sea Art 235, 236, Const. of 1898.

fhe Bistriot Judge, thought otherwise; and the fax Colleotor has appealed.

fhe trial judge did not err. "Under the jurisprudence, a promise of sale amounts to a sale only In the sense that It entitles either party to enforce specific performance; but a promise of sale Is not translative of property, and does not change the ownership of, or dominion over, the thing e**n as between the parties, or put the thing at the risk of the promisees." Caire vs Mutual Bldg Assn, (on rehearing) 15 Orleans Appeals Rep p. (7315), citing 17 La. #### 449, 10 An ### 160, 13 An 361, 14 An 606, 15 An 583, 29 An 663, 34 An 677, 40 An 712, 41 An 1107, 45 An 108.

And where the deoeased, at the time of his death, owned property whioh had borne its Just proportion of taxes, the mere oiroumstanoe# that, as the result of administration, that property was turned over to the heirs and legatees in more liquid shape, does not alter the faot that "the property donated or inherited", was the very property whioh the deoeased owned, and no other; since "Remo dat quod non habet." Succ. of Becker, 118 La 1056.

fhe ruling In Etta Construction Co vs Bruning, 134 La 58, has no application here, ^'hat was the oase of a sale jgt auction follow#! by a foxaal tranafar; and tho aoaxt h#ld that aa to wnhlla l.a. auotlon aalas, tho rulo waa tiff#rant Xxwa th* ahora atatad aa to off aat of a pronlaa of aala prlrataly oontraotad; that tha a&ludloatlon by tha auotlonear waa not a mora proalaa of aala, hut waa ltaalf tranalatir» of tho proparty without tha naad of any othar aot- But In thla oaaa wa ara oonoarnad only with a proalaa of aala prlrataly oontraotad, and not with an adjudication at auotlon.

Tha judgaant appaalad from la tharafora afflmad.

JUdgoont Afflraad.

New Orleans, La, December 1919.