Quatre Parish Co. v. Beauregard Parish School Board , 220 La. 592 ( 1952 )

HAWTHORNE, Justice

(dissenting).

In considering this case it is significant that the court is here dealing with the rights acquired by a party under a conventional act of sale of a tract of land as opposed to the rights acquired by an adjudicatee at tax sale, and not with the rights of two parties each claiming title by a different conventional act of sale. .

The tract of land, described as the S % of the SE and the S % of the SW *4, Section 19, Township 6 South, Range 8 West, was patented on July 3, 1897, by the United States to Jules Corsey. In 1901 under a tax sale for the unpaid taxes for the year 1900 the property was adjudicated to. the school board under an assessment in the name of J. Corsey. The description in the assessment and the tax deed was correct in every respect, including the name of the tax debtor, the number of the section, the fractional portions thereof, tile township, and the acreage, except that the range was given as “9” instead of “8”. The error in giving Range 9' instead of Range 8 was obviously and patently a mere clerical one and nothing else.

With the above factual situation in mind, I am of the opinion that the holding of the majority in the instant case that the plaintiff-appellant was the owner of the above described property and that the school board had no title thereto (1) violates and is contrary to the provisions of our Constitution as interpreted and applied by this court for a period of more than 50 years, (2) is contrary and directly opposed to the plain meaning of LSA-R.S. 47:2181, Acts 140 of 1890 and 170 of 1898, and (3) is in direct conflict with the established jurisprudence of this state — all as I shall now point out.

It has been the policy of this state in the past, as shown by the constitutional provisions, statutory enactments, and jurisprudence of this court, to stabilize tax titles and to protect them from attack on the technical ground that some error occurred in the description of the property in the assessment or the tax deed, when the property by that description can be reasonably identified. Now, after this decision, tax titles will be in á state of chaos, and those holding under adjudications in which some slight clerical error has been made in the description will be at the mercy of the tax debtor and his heirs if they choose to convey the property by correct description to some third person, who under this decision would acquire a valid title against the tax purchaser and his vendees.

It has often been said by various justices of this court that one of the primary functions of the court is to stabilize the jurisprudence especially with reference to land titles so that the members of the bar in their examination of titles can inform .their clients with certainty as to their rights or title to a particular tract of land. The majority opinion in this case, rather than stabilizing the jurisprudence, has directly the opposite effect, for after this decision tax titles which have heretofore under the law of this state been considered as unquestionable a.nd accepted as such will be under a cloud and subject to attack.

Under Article 10, Section 11, of our Constitution, there exists a legal presumption that the tax sale is valid. See Federal Land Bank of New Orleans v. Hill, 170 La. 654, 129 So. 118. That article provides that “No sale of property for taxes shall be set -aside for any cause except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted * * * within five years from the date of the recordation of the tax deed * * Similar provisions were in the Constitutions of 1913 and 1898. The period of peremption in the present Constitution is five years, whereas in prior Constitutions it was three years.

In Hollingsworth v. Poindexter, 156 La. 621, 100 So. 790, 791, decided in 1924 with Justice Thompson as the organ of the court, the property was sold under an assessment which designated it as being situated in Section 6, when it was in Section 16. Among the nullities, propounded! against the tax title was “That said assessment was too vague, uncertain, and insufficient to describe and identify the property so assessed, and a sale thereunder is absolutely null and void”. In the course of the opinion the court said:

“There can be no question, therefore, that the assessment contained and intended to-contain all of the lands owned -and claimed by the plaintiff in these several suits. And' the tax sale conveyed — and intended to convey — all of such lands * * *.

“We find, therefore, that, with * * * the correction of section 6 by substituting the section 16, the assessment contains almost the exact acreage of land owned and claimed by the plaintiff, the correct section, township, and range, the correct description of the lands by governmental subdivision * * *. This was a sufficient description to identify the land belonging to the plaintiff and claimed in the suits under consideration and to furnish the legal basis for a valid tax sale. At all events, the errors complained of cannot be asserted after the lapse of three years under the articles of the Constitution heretofore referred to.” (All italics mine.)

The error in the description in the instant case is no more serious than the one in that case, and the tax purchaser here should be protected by the constitutional peremption just as the tax purchaser was in that case.

In addition to the constitutional provision hereinabove quoted, the Legislature as far back as 1890 adopted a statute protecting tax titles containing errors in the description. Act 140 of 1890. The present statute, R.S. 47:2181, reads as follows:

“For the purpose of tax sales it shall be sufficient to assess and describe all property assessed in the following manner: by designating the tract or lot by the name by which it is commonly known, or by the number or letter by which it may be usually designated upon the regular assessment rolls or upon an official or private plan or sketch or by giving the boundaries or the names of the owners upon each side, or by the dimensions or description or name given in the act translating the ownership* thereof, or by such other further description as may furnish the means of reasonable identification.

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“No tax sale shall be set aside or annulled for any error in description or measurement of the property assessed in the name of the owner provided the property sold can be reasonably identified. í}S íjC í|í »

In Landry v. McWilliams, 135 La. 655, 65 So. 875, 877, decided in 1914 with Chief Justice Monroe as the organ of the court,, this court had occasion to consider the applicability of the constitutional article and the. statute of 1890 in determining the validity of a tax sale. In that case the property was assessed and described in the tax deed as being in Township 8, when the-property was actually in Township 9. The property was assessed and sold in the name of the tax debtor, and the description in the assessment and the tax deed was accurate in every respect except that the township* was designated as “8” instead of “9”. In holding the tax sale to be valid this court, said: “Our conclusion is that the description, according to which the land in question was advertised and sold [Township S'instead of Township 9], was sufficient, within the language and meaning of the statute, ‘to furnish the means of reasonable identification,’ and that defendant acquired a good title, which is protected from the present attack by the constitutional prescription of three years. * * * ”

In the instant case, for the same reasons the description in the tax deed, which is correct in every detail except for the range number, is sufficient to furnish the means of reasonable identification. Thus the school board acquired a good title, protected from attack by the constitutional period of peremption.

In Gayle v. Sheer, 188 La. 940, 178 So. 498, 500, decided in 1938 with Chief Justice O’Niell as the organ of the court, the land was patented to one Jack Gills and described as the E % of the NE 14 of Section 8, T. 17 N., R. 11 W. The assessment for the taxes of 1904, under which the land was sold, was made in the name of Jack Gayle. In this assessment the land was described as the E % of the SW % instead of the E % of the NE % of Section 8, T. 17, R. 11. The court in the course of the opinion cited numerous authorities and the provisions of Section 3 of Act 140 of 1890 for the rule that, if a tax sale is made under an assessment in the name of the owner of the property and if an error is made in the description of the land intended to be assessed, the tax sale made under such assessment is valid if, notwithstanding the error in the description in the assessment, the land can be identified by the description given without the necessity of resorting to evidence outside the assessment itself. In the course of that opinion this court said: “ * * * It is well settled that the identification of the land intended to be assessed, when there is an error in the description in the assessment, may be established by proof that the party in whose name the land was assessed owned only one tract of land within the area or subdivision mentioned in the assessment. Weber’s Heirs v. Martinez, 125 La. 663, 51 So. 679; In re Perrault’s Estate, 128 La. 453, 54 So. 939; Pierson v. Castell Land & Harbor Co., 159 La. 158, 105 So. 274; Close v. Rowan, 171 La. 263, 130 So. 350. * * *”

The court then pointed out that the description of the land intended to be assessed was accurate in every respect except as to the quarter section in which the 80-acre subdivision was locatedthe name of the owner was given; the area of the tract, 80 acres, was stated; the subdivision of the quarter section, Eyz, was stated, and the number of the section and the number of the township and range were stated correctly. The court treated the error as being insignificant, as is reflected by the following language quoted from Hollingsworth v. Poindexter, supra: “ ‘The error in omitting from the assessment the W. % of the N.E. 14, which plaintiff did own, and the inclusion in the assessment of the. W. % of the N. W. which plaintiff did not own, wás, to say the least, an apparent' clerical error of little importance to the validity of the assessment otherwise. It is certainly not such a serious error as to justify the setting aside of a tax sale, even when such sale is not protected by the lapse of the period of limitation of the right of action’.”

In the case of Tillery v. Fuller, 190 La. 586, 182 So. 683, 703, also decided in 1938, the law which should govern the instant case was clearly and concisely set forth in the following language: “ * * * A tax sale made under an assessment in which the description of the property intended to be assessed is erroneous is not for that reason invalid if the assessment was made in the name of the owner of the property intended to be assessed and if the description in the assessment is such that the property intended to be assessed can be reasonably identified. Act No. 140 of 1890, Sec. 3, p. 180 [LSA-R.S. 47:2181]; Hollingsworth v. Poindexter, 156 La. 621, 100 So. 790; Nebraska-Tensas Co. v. Moritz, 157 La. 174, 102 So. 195. A tax sale made under an assessment in which the description of the property intended to be assessed is so defective that resort must be had to evidence outside of the assessment roll in order to identify the property intended to be assessed is protected, by the limitation of three years if the assessment was made in the name of the true owner, or owner of record, of the property intended to be assessed, and if the identity of the property intended to be assessed is established unmistakably by such outside evidence. Close v. Rowan, 171 La. 263, 130 So. 350; Gayle v. Slicer, 188 La. 940, 178 So. 498. In such cases the identification of the property intended to be assessed may be confirmed by proof that the party in whose name the property was assessed did not own any other property in the section or other subdivision given in the assessment. Weber’s Heirs v. Martinez, 125 La. 663, 51 So. 679; In re Perrault’s Estate, 128 La. 453, 54 So. 939; Vannetta v. Busbey, 131 La. 681, 60 So. 76; Landry v. McWilliams, 135 La. 655, 65 So. 875; Pierson v. Castell Land & Harbor Co., 159 La. 158, 105 So. 274; Close v. Rowan, 171 La. 263, 130 So. 350; Gayle v. Slicer, 188 La. 940, 178 So. 498. * * * ”

In Jackson v. Irion, 196 La. 728, 200 So. 18, 19, 133 A.L.R. 566, the property was sold for taxes of 1926 under the following assessment:

“Jackson, Willis

“One City Lot at Eola”.

In that suit plaintiff sought to have the tax deed made to the defendant cancelled and erased from the records. To this action defendant pleaded the peremptive period provided in the Constitution. This court affirmed the judgment of the lower court sustaining defendant’s plea and in the course of the opinion said:

' “The jurisprudence applicable to cases of this kind was concisely stated by this court, through the' Chief Justice as its organ, in a very recent case, that of Tillery v. Fuller, 190 La. 586, 182 So. 683, 704, * * *

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“It would subserve no useful purpose to> review the jurisprudence further. It suffices to say that the property here involved was assessed in the name of the true or record owner, and that the description on the assessment roll and in the tax deed was such as to enable the tax purchaser to identify the property and to enable the parish surveyor to find it on the ground; and further, that the testimony taken at the trial shows that the record owner of the lot sold owned no other property in the vicinity of Eola or elsewhere in the parish.”

In Close v. Rowan, 171 La. 263, 130 So. 350, 352, this court pointed out that in the case of Pierson v. Castell Land & Harbor Co., Inc., 159 La. 158, 105 So. 274, 277, this court had occasion to interpret the Constitutions of 1898 and 1913, arid quoted from that opinion the following: “ ‘It is scarcely necessary to repeat what this court has so often taken occasion to announce, that since the Constitution of 1879 and the succeeding ones [referring to those of 1898 and 1913], where there has been an assessment of land and a tax sale is made which describes the land in such a mamner that it can be reasonably identified, the peremption of three years provided for by the Constitution applies, and the tax title is not subject to attack thereafter, except on the two grounds stated [referring to prior payment and dual assessment], or where the tax debtor, tax delinquent, or.owner has remained in possession of the property after the said tax sale.’ ”

As conclusively shown by the authqrities hereinabove cited, the law here applicable was well settled, uniform, and fully understood by the bench and bar prior to the decision of the majority in the instant case. In this case, as I have hereinabove pointed out, the property described in the tax deed, assessed in the name of the owner, can be reasonably identified. Therefore under that law the tax title of the defendant is protected by the constitutional period of peremption, and, the Constitution being the paramount authority, that should end the case.

Furthermore, the identification can be made reasonably without resortng to any evidence outside the public records. The public records themselves disclose that on the date of the assessment and adjudication there was no recorded claim or color of title in th.e name of Jules Corsey to property in the parish except to this property in Range 8 West; that the property of the same description in Range 9 West had been owned for many years by another; that at the time of the assessment Jules Corsey owned in the parish only the property described in his patent, and that property belonging to Jules Corsey had been adjudicated at tax sale to the school board. Since the public records reflect these facts, the principle of law set forth in the Civil Code, Articles 2265 and 2266, and the case of McDuffie v. Walker, 125 La. 152, 51 So. 100, have no application. The assessment was made in the name of the record owner, and the clerical error was so insignificant that anyone examining the public records could reasonably identify the property in the tax deed as that purchased by the plaintiff. Therefore the public records themselves would have put the plaintiff on guard that its title was questionable.

Contrary to the view of the majority, I am of the opinion that appellant and its authors in title were bound by everything that the public records revealed and by the law of this state relative to tax titles, and the fact that the adjudication was made in the name of one of its authors in title, when considered with the law relative to tax titles, of which they were charged with full knowledge, should have put them on notice of the defect in "the title.

Further, in a case where evidence outside the public records is necessary for reasonable identification of the property intended to be assessed, the constitutional period of peremption applies to protect the title of the tax purchaser under the cited jurisprudence of this state. In such a case, if a third party is involved so that a conflict exists between the constitutional provision and McDuffie v. Walker, supra, the constitutional provision, in my opinion, would be paramount, and the law as announced in that case and subsequently extended by this court must yield to the Constitution.

By disregarding the established jurisprudence relative to tax titles and failing to recognize the Constitution as the paramount authority, the decision of this court allows a third party purchaser with full knowledge of the facts to dispossess a tax purchaser who has been in possession under a tax adjudication for a period in excess of the constitutional peremption, even though the tax debtor himself could not do so. It can readily be seen, therefore, that the view of the court in this opinion opens the door to all kinds of fraud.

For these reasons I respectfully dissent.