
    (116 So. 395)
    No. 28713.
    RYALS v. TODD et al. In re TODD et al.
    Oct. 31, 1927.
    On Rehearing. Feb. 13, 1928.
    Second Rehearing Denied March 12, 1928.
    
      (Syllabus by Editorial Staff.)
    
    1.'Pleading <&wkey;>l65 — Allegation in defendants’’ answer of validity of their tax, title made issue of question thus raised without necessity of replication (Code Prac. art. 329).
    In suit by one claiming under foreclosure of mortgage against holders of tax deed ini which defendants in their answer alleged validity of the tax title and prayed to be decreed' owners of land by virtue thereof, plaintiffs were entitled to urge every objection of law or fact available against validity of the title without interposing further pleading by way of replication, under Code Prac. art. 329.
    2. Taxation <&wkey;>8( — Assessment of property against person then appearing upon public records as owner held valid.
    • Where person against whom tax was assessed after January 1st acquired property from purchaser at foreclosure sale of mortgage and recorded his deed, assessment of property in name of such person was valid and legal on account of appearance of his name upon the records as owner at time of assessment, though property was subsequently acquired before tax sale by another under foreclosure sale of prior lien.
    
      On Rehearing.
    3. Taxation <&wkey;623 — Tax sale without notice of delinquency to owner of record at time of advertisement and sale is void; “delinquent tax debtor.”
    Owner of record at time of advertisement and sale for taxes is to be regarded as a delinquent tax debtor within meaning of constitutional provision requiring notice to delinquent before selling, and, where notice of delinquency is not given such recorded owner, tax sale is null and void, even though property was assessed in another’s name.
    4. Taxation &wkey;>623 — Tax sale in proceedings carried on exclusively in another’s name held ' void as to one holding possession as record owner at time of sale, who testified without contradiction as to his ignorance of delinquent taxes.
    Tax sale made pursuant to valid assessment •on property in name of apparent record owner at time of assessment held void as to third person, who was record owner and in possession at time of sale and who testified that he did not know of existence of delinquent taxes, since such testimony overcame whatever presumption of validity attached to tax sale and cast burden upon tax purchaser to show that notice had been given, in view of fact that proceedings were carried on exclusively in name of person against whom assessment was made.
    Brunot, J., dissenting.
    Certiorari to Court of Appeal, Parish of Sabine.
    Suit by W. P. Ryals against Mrs. Lottie Todd and others. Judgment for plaintiff was affirmed by the Court of Appeal, and defendants apply for writs of certiorari and prohibition.
    Judgment of Court of Appeal and district court affirmed.
    Poster, Hall & Smith, of Shreveport, and C. E. Hardin, of Lake Charles, for applicants. Ponder & Ponder, of Many, for respondent.
   BRUNOT, J.

The facts of this case are that in 1911 John T. Webb deeded the prop-' erty in controversy to J. D. Woodward and reserved a vendor’s lien and mortgage upon the property for thé unpaid portion of the purchase price. Woodward sold the property to J. E. Graham. Graham mortgaged the property to Poster & Glassell Company. The notes identified with this act of mortgage were not paid at maturity, the mortgage was foreclosed, and the property was bought in by Poster & Glassell. In the foreclosure proceedings and sale thereunder, the property was described as the N. E. quarter of the S.E. quarter of section 27, Tp. 9 S., R. 13 W., Sabine parish, instead of the N. E. quarter of the S. W. quarter of said section, township, and range, but as a matter of identification it is described in the deed as being “the J. D. Woodward place.” Poster & Glassell Company, under a proper descriptibn of the property, sold it to James A. Jackson on January 30, 1917. On June 30, of the same year W. E. Tatum, who held the original vendor’s lien notes and mortgage signed by J. E. Woodward, brought foreclosure proceedings on these notes and mortgage and bought in the-property at the sheriff’s sale thereof had in these proceedings. After acquiring the property at said sale, Tatum deeded it to W. P. Ryals, the plaintiff in this suit. While James A. Jackson was the record owner of the property in 1917 under the deed from Poster & Glassell Company to him, in which it was correctly described, it was assessed in his name, and, the taxes for that year not having been paid by any one, the property was sold at tax sale in 1913, under the assessment to Jackson, for the nonpayment of the taxes thereon for the previous year, and J. E. Todd became the purchaser of the property at that sale. There was no redemption of this tax sale. After the period of redemption had elapsed J. E. Todd died, and his surviving widow and minor heirs are the defendants in this suit, the purpose of which is to annul, set aside, and erase from the conveyance records the said tax deed to J. E. Todd and all deeds by said Todd to other persons of any portion of said property.

The judgment of the district court was in favor of the plaintiffs and against the defendants. It annulled the tax deed to J. B. Todd and all deeds of said land by Todd to other persons and ordered said deeds erased from the conveyance records of Sabine parish. The ease was appealed. The Court of Appeal affirmed the judgment of the district court, a writ of review was applied for and granted, the record has been sent up, and the case is now before us in response to that writ.

The errors assigned are as follows:

“First. The Court of Appeal erred in deciding this case on a point which was not suggested by the pleadings or raised in argument in the lower court, and,for the first time raised by the brief of counsel in the appellate court, which brief was never submitted by opposing counsel to the defendants appellants or their attorneys in this 'case as required by the rules of the Court of Appeal.
“Second. That the Court of Appeal erred in deciding this case on an issue not raised by the pleadings.
“Third. That the Court of Appeal erred in holding that the tax sale was null or that the assessment was illegal.”

With reference to the first and second alleged errors, it may be said that, as defendants, in their answer, allege the validity of their tax title and prayed to be decreed the owners of the land in controversy by virtue of that title, replication to this affirmative averment was not necessary, as defendants had thus opened the door to every objection of law or fact that the plaintiffs might have urged against the validity of their title without further pleading. C. P. art. 329; McMaster v. Stewart, 13 La. Ann. 546; Hickman v. Dawson, 33 La. Ann. 442; Telle v. Fish, 34 La. Ann. 3244; Webre v. Christ, 130 La. 450, 58 So. 145; Abshire v. Lege, 133 La. 254, 62 So. 667. We do not consider the cases of Sintes v. Commerford, 112 La. 706, 36 So. 656, and Prince v. Standard Oil Co., 147 La. 285, 84 So. 657, which are cited by relator, as applicable to the facts of this case, for the reason that the answer of these defendants put the question of the validity of their title at issue.

The third error assigned is serious. The Court of Appeal held that the tax sale of the property was null because the assessment of the property was illegal. When the property was assessed in 1917, James A. Jackson was then the record owner of it and it was assessed as his property. Plaintiff’s petition does not allege that the property was illegally assessed. It merely alleges that Jackson was never the legal owner of it and when the property was sold in 1918 for the taxes of 1917, plaintiff was the record owner and in possession of it, and that the property was sold without notice to him. Inasmuch as no law requires the assessor, in making up his assessment rolls, to assess property to the persons who happen to be the record owners thereof on January 1 of the year in which the assessment is made, and for the reasons hereinafter given, we find that the assessment of the property involved in this suit was valid and legal.

Jackson acquired the property in January 1917, and his deed was recorded in March, 1917. The assessment of the property for 1917 was evidently made after Jackson’s deed was recorded and before the plaintiffs acquired any title to the property. If it be conceded that when the assessment was made there were conflicting titles of record, defendants may well rely upon the case of Lisso & Bro. v. Police Jury, 127 La. 283, 53 So. 566, 31 L. R. A. (N. S.) 1141, and the authorities cited on page 289 (53 So. 567) of the opinion, which holds that the assessor has no capacity to determine, as between apparently conflicting titles, which is best, and that an assessment in the name of him who appears upon the record to be the ow;ner is good.

Plaintiff acquired the property involved in this suit in 1917, but his deed was executed and recorded after the assessor had listed the property for the purpose of the assessment for that year in the name of the record owner at the time the assessment was made. In this connection we cite Avery v. Mayo, 161 La. 699, 109 So. 393, and we quote the following from the opinion in the Lisso Case:

“The law makes specific provision with respect to the time and manner in which assessments may be corrected, whether by cancellation, reduction, or increase, and this court has on more that one occasion found itself unable to afford relief to complaining taxpayers because of their failure to comply with those provisions.”

In the case of Ashley Co. v. Bradford, 109 La. 641, 33 So. 634, the court said (quoting from the syllabus):

“An assessment of property predicated upon a tax title of record, prima facie valid, is not without legal effect, even though the title itself be void for latent defects. The law prescribes it to be the duty of tax assessor to examine the records in listing property and to assess same in the name of the holders of the legal or record titles. Nor is the assessor made the judge of the validity of such titles. And if the property be sold for the payment of taxes predicated upon such assessment, a valid title may be acquired,” etc.

As we have said, the only grounds alleged in plaintiff’s petition as a reason why the tax sale to J. E. Todd is invalid is that Jackson never acquired a legal title to the property, and, when the property was sold for taxes, plaintiff was in the physical possession of it under a prima facie valid deed of record, and the property was sold without notice to him. No evidence whatever was offered on the trial of the case to support the averment that notice of the tax sale was not given to plaintiff as well as to Jackson, in whose name the property was assessed, although plaintiff testified in the case and had full opportunity to sustain the averment of his petition by proof. The same may be said with reference to the allegation of fraud in paragraph 3 of plaintiff’s petition. No evidence was offered to establish that averment.

It has been held that the prima facie validity of a tax sale and of the. deed thereunder is presumed unless the contrary be shown. This rule applies with especial force when the validity of the tax sale is not questioned until after the lapse of years. In Bourke v. Hauffman, 2 Orleans App. 142, the court said:

“Where there is no evidence in the record to show want of notice or any other defect, the presumptive validity of the tax title remains unrebutted.”

In the ease of Gouaux v. Beaullieu, 123 La. 684, 49 So. 285, this court said (quoting from the syllabus):

“The presumption ‘omnia rite’ applies to tax sales after parties have slept on their rights for many years.”

The rule that all things are presumed to have been done regularly and with due formality until the contrary is shown is accepted in all jurisdictions.

In the case of Pfefferlie v. State of Louisiana, 14 Orleans App. 211, the court said:

“The constitutional presumption that every tax sale is prima facie valid, and hence was preceded by notice to the delinquent tax debt- or, can be rebutted only by direct and positive evidence to the contrary.”

In the ease of Gonzales v. Saux, 119 La. 657, 44 So. 332, the court said:

“The next complaint of plaintiff is that no notice had been given to the tax debtor.
“The facts on this point are, as set oút in the recital of the deed of adjudication at the tax sale, that there was some sort of notice given. Nothing appears to the contrary.
“There arises a presumption of regularity under that article which cannot be defeated by urging that the statements regarding notice are in the alternative -and vague and uncertain. Merest allegation will not be controlling in the presence of a deed which contains recital of a notice.
“The want of sufficient notice urged presents scant ground for complaint, as it is not sus- ' tained.”

In the case of Grifling v. Taft, 151 La. 442, 91 So. 832, this court, at page 447 (91 So. 834) of the opinion, said:

“The tax deed in this case is prima fade evideuce of the valid tax sale. Plaintiffs have produced no evidence to show that such notices were not given.”

More than five years elapsed from the date of the tax sale to J. E. Todd and the date .this suit was filed. We have found the assessment was valid, and as the ground of nullity actually set up in plaintiff’s petition as reason for setting aside the tax sale to Todd is that the sale was made without notice to plaintiff, and as no attempt was made to sustain this averment by proof, we must, necessarily, hold that the tax sale was also legal and valid. For these reasons the judgment of the district court and of the Court of Appeal are avoided, and it is now ordered that the demands of plaintiff be rejected at his cost. '

On Rehearing.

THOMPSON, J.

The facts of this case are fully stated in the original opinion and need not be repeated here.

It suffices to say in that connection that James A. Jackson appeared upon the public records as the owner of the property when the assessment was made for the year 1917. The assessment was therefore properly made in his name. See authorities cited in original opinion and Pierson v. Castell Land & Harbor Co., Inc., 159 La. at p. 162, 105 So. 274.

After the assessment was made in the name of Jackson, the property passed by mesne conveyances to the plaintiff Ryals, who was the recorded owner at and before the tax sale. He was in the actual possession and living on the property at the time of the sale.

It is well settled, by repeated decisions of this court, that it matters not in whose name thé property has been assessed, the owner of record at the time of the advertisement and sale for taxes is to be regarded as the delinquent tax debtor, within the meaning of the constitutional provision requiring notice to be given to the delinquent before making the sale, and where the notice of delinquency was not given to such recorded owner the tax sale is null and void. Kivlen v. Horvath, 163 La. 904, 113 So. 140, and authorities cited therein; Pierson v. Castell, etc., 159 La. 158, 105 So. 274.

The validity or invalidity of the tax sale here made the subject of attack must therefore be determined on .the fact as to whether or not plaintiff Ryals, the recorded owner at the time of the tax sale, was or was not given notice of tax delinquency.

In our original opinion, we reversed the judgments of the Court of Appeal and of the district court, and rejected the demand for the nullity of the tax sale.

The ruling proceeded on the theory that the tax deed was prima facie valid, and that the burden of proof of want of notice was upon the plaintiff, and that he failed to discharge that burden.

A reconsideration of the case on rehearing has brought us to the conclusion that we were* in error.

It is quite true that the Constitution provides that all deeds of sale made by the collectors of taxes are to be received by the courts in evidence as prima facie valid sales, and it has been frequently held that, in view of the provision referred to, it was incumbent upon the person seeking to annul a tax sale on the ground of want of notice to offer some evidence of the failure to give notice before the tax purchaser can be called upon to sustain the presumption flowing from the tax deed, and this has been held in cases even where the deed does not recite that notice was given.

Thus in Slattery v. Heilperin & Leonard, 110 La. 95, 34 So. 143, it was said:

“We do not understand, therefore, that the omission from these tax deeds of the recital that notice had been given to the tax debtor, * * * destroyed the prima facie valid character of the deed given it by the Constitution. * * *
“Neither the Constitution nor the statute of 1880 specifically required these recitals to be made. The law presumes that those things were done which it commanded to be done.”

All the cases cited, however, where the presumption flowing from the tax deed was applied were cases where the property was sold in the name,of the person to whom it was assessed, and there had been no change in ownership so far as the conveyance records showed at, the time the tax sale was made.

In none of the cases referred to, and in no case we have been able to find, has the presumption of validity of the tax deed, in respect to the notice of delinquency, been applied where the property stood upon the public records at the time of the tax sale in the name of a person different from the one to whom the property was assessed.

Whether the prima facie validity of the tax sale, with reference to notice, should or should not be held to apply as against one to whom the property was not assessed, but who was the recorded owner and in actual possession at the date of the tax sale, is not necessary to decide in this case.

The evidence, together with all of the surrounding circumstances, in our opinion, was sufficient to throw upon the tax purchaser the burden of showing that notice was given to the plaintiff.

The plaintiff Ryals became the owner of the property in December, 1917, and went into actual possession by moving on the property.

The tax sale was made in the name of Jackson in June, 1918.

It is shown that Ryals caused the property to be assessed to him, and he paid the taxes thereon for 1918 and each subsequent year.

When asked on cross-examination if he had made any effort to pay the taxes of 1917, for which the sale was made by the tax collector, Ryals answered that he did not, and that he did not know there was any taxes against it.

In this connection, it may be stated that Ryals’ deed, which was a notarial act, recited that the tax receipts showing the payment of the taxes on the land were produced.

While this recital may not have referred to the taxes of 1917, which were then assessed •but not collectible, still it was sufficient to justify the assumption on the part of Ryals that he was acquiring the land free of any tax claim.

Be that as it may, however, the statement of Ryals that he did not know there was any taxes against the land for 1917 amounts to practically the same as saying that he had not been notified by the .tax collector of the delinquency of the taxes for 1917, for if such notice had been given him,'he would have known as a matter of fact that the taxes were assessed against the land.

The statement of Ryals, when considered in connection with the fact that he was not a party to the assessment nor to any of the proceedings culminating in the tax sale and that such proceedings were carried on exclusively in the name of Jackson, who ceased to be the record owner long before the tax sale, is sufficient, in our opinion, to overcome whatever presumption may attach to the tax sale under the provision^ of the Constitution.

In the absence of any contrary showing, the fair and reasonable presumption is that, if any notice was given, it was so given to the party assessed and in whose name alone the tax proceedings were carried on and in whose name the sale was made.

For the reasons assigned, it is ordered and decreed that the judgment of the Court of Appeal and that of the district court be and the same are affirmed at the cost of defendants. The right to apply for a rehearing is reserved to the defendants.

BRUNOT, J., dissents.  