
    Ben T. JOHNSTON, Plaintiff and Appellant, v. A. H. NANNEY, Defendant and Appellee.
    No. 683.
    Court of Appeal of Louisiana. Third Circuit.
    Nov. 15, 1962.
    Rehearing Denied Dec. 10, 1962.
    Concurring Opinion Dec. 18, 1962.
    
      Schober & Newstadt, by David B. New-stadt, Shreveport, for defendant-appellant.
    Cavanaugh, Hickman, Brame & Holt, by A. B. Cavanaugh, Lake Charles, for defendant-appellee.
    Before TATE, SAVOY and HOOD, JJ.
   HOOD, Judge.

This suit was originally instituted in 1949 as a monition proceeding, but by agreement it was later converted into a petitory action, with Ben T. Johnston as plaintiff and A. H. Nanney as defendant. It affects and relates to the following described property, located in Vernon Parish, Louisiana, to-wit:

SW14 of SWJ4 Section 6; SE(4 of NWJ4 and NE}4 of SWj4 Section 7, Tp. 2 North, Range 9 West.

No steps were taken in the prosecution of the suit for several years, so in 1960 defendant filed a motion to dismiss the suit on the ground that it had been abandoned, which motion was denied. The defendant thereupon filed exceptions of no right and no cause of action, exceptions of prescription or peremption based on several grounds, and a plea of estoppel or laches, all of which exceptions or pleas were referred to the merits. After trial of the case on its merits, judgment was rendered in favor of defendant decreeing him to be the lawful owner of the property and quieting his title thereto. Plaintiff has appealed from that judgment, and defendant has answered the appeal praying that the judgment be affirmed.

Shortly before the case was scheduled for hearing in this Court, defendant filed a motion to dismiss the appeal, and that motion was submitted at the time the case was argued on its merits.

On Motion to Dismiss

The record shows that May 14, 1962, was the last day upon which plaintiff could take a devolutive appeal (LSA-C.C.P. Art. 2087). The Office of the Clerk of Court closed at 5 :00 p. m. that day, as it customarily did on weekdays, and as authorized by LSA-R.S. 13:756. At 5:05 p. m. on that day, plaintiff obtained an order from the District Judge granting the appeal, and this order was presented to the Clerk of Court at his residence at 5 :45 p. m. the same day. The Clerk thereupon marked the order “Filed May 14, 1962, at 5 :45 o’clock P.M,” but he kept the order at his residence that night and did not take it to his office and formally deposit it with the record of this suit until the following morning, May 15. An appeal bond in the proper amount and form had been filed with the Clerk earlier on May 14, before the order of appeal was signed.

Defendant argues that under these facts the order of appeal should not be considered as having been filed until May 15, 1962, which was after the time allowed for taking such an appeal had elapsed, and accordingly he contends that the appeal should be dismissed. It also is argued that the furnishing of an appeal bond on May 14, prior to the signing of the order, did not have the effect of perfecting the appeal at the time the bond was filed. We agree that the appeal was not perfected merely upon the filing of the appeal bond, no order granting an appeal having been issued at that time. We cannot agree with defendant, however, in his contention that the appeal was not taken until the following day. In our opinion, the filing of the order of appeal with the Clerk of Court at his residence during the late afternoon of May 14, 1962, after the Clerk’s office had closed, and the acceptance of the order and marking it filed by the Clerk at that time, constituted a filing of the order and the taking of the appeal on that day, even though the papers were not taken to the Clerk’s office and formally placed in the record of the suit until the next day. We conclude, therefore, that the appeal was perfected within the delays allowed by Article 2087 of the LSA-Code of Civil Procedure.

The appellant failed to file a brief in this Court within 25 calendar days after the filing of the transcript of appeal, as required by Section 7, Rule IX, of the Uniform Rules, Courts of Appeal (LSA-R.S., Vol. 8). A brief in his behalf was filed, however, after that 25-day period had elapsed, but before the date scheduled for the case to be heard in this Court. Defendant contends that the appellant’s failure to timely file a brief constitutes an abandonment of the appeal and, accordingly, that the appeal should be dismissed. The failure of counsel for appellant to timely file a brief deprives him of the right to oral argument of the case, but it does not entitle the appellee, as a matter of right, to have the appeal dismissed, and it does not prohibit us from considering the appellant’s tardy brief. In this case we think the appellant’s delay in filing a brief did not indicate an intent to abandon the appeal.

For these reasons the motion to dismiss the appeal is denied.

On the Merits

The evidence establishes that the above described property was acquired by Henderson Land, Timber and Investment Company, Inc., in 1923. By tax deed dated September 5, 1931, the subject property was adjudicated to the State of Louisiana for unpaid taxes due for the year 1930, under an assessment in the name of Henderson Land & Timber Co. No issue is raised in this suit as to the validity of that tax adjudication.

At a tax sale held on December 17, 1932, the same property was again adjudicated to the State of Louisiana ‘for unpaid taxes due for the year 1931, under an assessment in the name of Henderson- Land and Lbr. Co. The property had not been redeemed from the earlier tax sale before this last adjudication was made, and the trial judge held, correctly we think, that this adjudication for 1931 taxes was null and void since title to the property was still vested in the State at the time this tax sale took place. See Boagni’s Heirs v. Thornton, La.App. 3 Cir., 132 So.2d 494 (Cert. denied.)

On December 31, 1938, the Register of the State Land Office issued a certificate of redemption, certifying that the taxes due on this property for the year 1931 had been paid, and that under the provisions of Act 47 of 1938 the property was redeemed to Henderson Land & Lbr. Co. This redemption certificate related to the second adjudication to the State, which adjudication we consider to be void, and the certificate recites that the Henderson Company “is legally subrogated to all rights, liens and mortgages of the State incident to and growing out of the taxes for the years 1931 * *

After the issuance of this redemption certificate, the property was returned to the tax rolls. The taxes due on this property for the year 1939 were not paid, however, and so by tax deed dated May 4, 1940, this property was sold to defendant, A. H. Nan-ney, for unpaid taxes due for that year, under an assessment in the name of Henderson Land & Timber Co.

Mr. Nanney instituted this action as a monition proceeding on January 10, 1949, and opposition to the proceeding was promptly filed by the Henderson Company. By deed dated May 31, 1949, H. E. Harper, Trustee of the Estate of Henderson Land, Timber and Investment Company (then in bankruptcy), sold this property to plaintiff, Ben T. Johnston, and in June, 1949, Mr. Johnston filed an answer in the monition proceeding, opposing the confirmation of the tax sale to Nanney.

On June 27, 1949, the Register of the State Land Office issued a certificate of redemption certifying that the taxes due on this property for the year 1930 had been paid, and that under the provisions of Section S3, of Act 170 of 1898, LSA-R.S. 47:-2181, 47:2186 the property was thereupon redeemed to Henderson Land & Timber Co. This redemption relates to the first adjudication to the State, which adjudication we think was valid and had the effect of vesting legal title to the property in the State.

Plaintiff contends that the tax sale to Nanney on May 4, 1940, for unpaid taxes due for the year 1939 was an absolute nullity, because at the time of that sale title to the land was vested in the State. ' It is pointed out that this property was adjudicated to the State in 1931 for unpaid taxes due for the year 1930, and that it had not been redeemed from that tax sale at the time the property was sold to Nanney for unpaid 1939 taxes. Accordingly, plaintiff argues that Mr. Nanney did not acquire a valid title by virtue of the 1940 tax sale. To support this argument, plaintiff relies on the cases of Boagni’s Heirs v. Thornton, supra; Thomas v. Bomer-Blanks Lumber Company, La.App. 1 Cir., 105 So.2d 299; and Waterman v. Tidewater Associated Oil Company, 213 La. 588, 35 So.2d 225.

Defendant contends primarily that the redemption certificate issued on December 31, 1938, should be construed as a valid redemption of the property from the adjudication made to the State for unpaid taxes due for the year 1930, even though the certificate recites that the redemption was from the adjudication made for 1931 taxes. It is argued that this particularly is true because the redemption was made under the provisions of Act 47 of 1938, which statute was adopted as a temporary measure for the specific purpose of enabling property which had been adjudicated to the State or its political subdivisions to be redeemed and restored to the tax rolls.

The trial judge held that the redemption certificate issued by the Register of the State. Land Office on December 31, 1938, redeeming the property from the 1931 tax sale, had the effect of divesting the State of any title it had to the land, and that it particularly divested the State of the title it acquired in 1931 by virtue of the sale of the property for 1930 taxes. The trial court further concluded that title to the property was not vested in the State in 1939 or 1940, that the property was correctly assessed for taxes during the year 1939, and that the tax sale to defendant Nanney for unpaid 1939 taxes was valid.

The law is settled that where property has been adjudicated to the State and has not been redeemed in the time and manner provided by law, the tax officers of the State are without authority to assess and sell the property as belonging to the former owner or any other person. It also is well established that public property is exempt from taxation, and that the unauthorized acts of assessors and tax collectors in assessing and collecting taxes on property which previously has been adjudicated to the State for unpaid taxes, cannot bind the State and does not constitute a waiver of title by the State. See Boagni’s Heirs v. Thornton, supra, and authorities therein cited.

In view of this established jurisprudence, we think the adjudication of the subject property to the State for unpaid taxes due for the year 1931 was an absolute nullity, and that the redemption of such property from that adjudication in 1938 did not divest the State of the title which it had acquired by virtue of the previous adjudication for unpaid 1930 taxes. The title to this property, therefore, was still vested in the State at the time the property was purportedly sold to defendant Nanney at the tax sale dated May 4, 1940. In our opinion, the 1940 tax sale to Mr. Nanney was an absolute nullity, and the trial judge erred in holding that he acquired a valid title by that sale.

We are aware of the fact that Act 47 of 1938 was adopted as a temporary relief statute, largely because of the economic depression which existed at that time, and that its purpose was to enable tax debtors to redeem property which had been adjudicated to the State or its political subdivisions and thus to restore such property to the tax rolls. In spite of that fact, however, we do not believe that the Legislature in adopting that act intended that the redemption of property from a void tax sale would have the effect of divesting the State of any title which it may have acquired in some other manner, and particularly of the title which it may have previously acquired under a valid adjudication. If this property had been redeemed from the adjudication for 1931 taxes under the provisions of Act 170 of 1898 (LSA-R.S. 47:2224), there seems to be no question but that such a redemption would not have divested the State of the title which it previously had acquired. We think the same rule should be applied to a redemption made under Act 47 of 1938.

Defendant argues, however, that the certificate of redemption issued on December 31, 1938, under the provisions of the 1938 act, was specifically validated by Act 256 of 1940 (LSA-R.S. 41:1326). This statute provides that:

“All certificates of redemption of property issued by the State Land Office under Acts 1934, No. 161; Acts 1935, Fourth Ex.Sess., No. 14; Acts 1936, No. 183; Acts 1938, No. 47, and the cancellation of taxes made by authority thereof, are ratified, validated and confirmed unless attacked within six months from July 31, 1940.”

We think this act had the effect of ratifying, validating and confirming the redemption of this property from the adjudication for 1931 taxes. That adjudication was an absolute nullity, however, so the redemption of the property from that sale has no legal effect. By that redemption the State merely returned to the tax debtor any right, title or interest in the property which the State acquired under the adjudication for 1931 taxes. In our opinion the Legislature, in adopting this 1940 act, did not intend that a redemption certificate, which had been issued as therein provided, would have the effect of divesting the State of a valid title it may have acquired prior to the tax sale affected by the redemption. We hold, therefore, that in spite of the provisions of the 1940 act, the certificate of redemption issued on December 31, 1938, did not divest the State of the title which it had acquired previously by virtue of the adjudication for unpaid 1930 taxes.

Defendant has filed exceptions or pleas of peremption or prescription based on the following grounds: (a) prescription or peremption of six months under LSA-R.S. 41:1326 ; (b) prescription or peremption of three and five years under Section 11 of Article 10 of the Constitution, LSA; and (c) prescription or peremption of three, ten and thirteen years under LSA-R.S. 41 :- 1328.

We have already pointed out that the certificate of redemption issued on December 31, 1938, did not divest the State of the title it acquired by virtue of the sale of this property for 1930 taxes, in spite of the provisions of LSA-R.S. 41:1326 (Act 256 of 1940). The failure of plaintiff to attack that certificate of .redemption within the time allowed by LSA-R.S. 41:1326, therefore, is immaterial, and accordingly there is no merit to defendant’s plea of prescription or peremption of six months.

We think the law is settled to the effect that the prescription or peremption provided in Article 10, Section 11, of the Constitution is not applicable to a purported sale for taxes of public property, which sale is an absolute nullity. Richard v. Perrodin, 116 La. 440, 40 So. 789; Puritan Company v. Clarkson, 145 La. 1099, 83 So. 315; and Boagni’s Heirs v. Thornton, supra. In the last cited case, we said:

“Plaintiffs further contend that where a party obtains title from the sovereign subject to an earlier tax forfeiture to the State, said party must attack the tax title within the constitutional peremptive period of three years. See Const., 1898, Art. 233; and Const. 1921, Art. 10, Sec. 11. The prescription or peremption provided in the above cited sections of the constitution, however, is not applicable to a purported sale for taxes of public property, which sale is an absolute nullity.”

The prescription or peremption provided in LSA-R.S. 41:1328 (Act 185 of 1904) relates only to a deed which purports to be founded on a “forfeiture” for taxes, a proceeding which was prohibited at the time all of the tax sales involved here occurred. Const. Art. 10, Sec. 11. The tax sale on which defendant relies in this case was not a deed purporting to be founded on a forfeiture for taxes, so the prescription or peremption provided in LSA-R.S. 41:1328 is not applicable.

Defendant further pleads prescription of ten years, acquirendi causa, under the provisions of Article 3478 of the LSA-Civil Code, contending that he has been in physical possession of the land since 1944. He concedes that plaintiff’s answer and opposition to the monition proceedings were filed within ten years after he went into physical possession of the property, but he contends that such a pleading does not interrupt the running of the ten-year prescription. It is argued that the opposition filed by plaintiff in the monition proceeding did not involve the title to the property, and that the title did not become involved “until defendant agreed to try this case as a peti-tory action on April 8, 1960,” which was after the ten-year prescriptive period had run.

The .record shows that plaintiff Johnston filed an opposition to the monition proceeding in 1949, in which he alleged facts tending to support his claim that he is the record owner of this property and that the 1940 tax sale to defendant is void. When the case eventually came up for trial on April 8, 1960, Mr. Nanney on that day filed the exceptions or pleas which have been described, all of which were immediately referred to the merits. The minutes of the court then show that, “It was stipulated by counsel that the case be converted to a peti-tory action, with Ben T. Johnston assuming the position of plaintiff.” The case then proceeded to trial as a petitory action. The opposition in the monition proceeding filed by Johnston in 1949 was the only pleading filed by him which could have served as a petition in the petitory action. We think the date on which that opposition was filed, June 30, 1949, rather than the date on which the stipulation of counsel was entered into, determines when the “petitory action” was filed. We conclude, therefore, that the running of the ten-year prescription period was interrupted in 1949 by the filing of that opposition, and accordingly that there is no merit to defendant’s plea of prescription of ten years, acquirendi causa.

Defendant further filed a plea of estoppel and laches on the grounds that the State (and plaintiff as the assignee of the tax debtor) is estopped from questioning the validity of the 1940 tax sale, because the property was .returned to the tax rolls in 1938 and the State has collected taxes on the property since that time.

In Graham v. Jones, 198 La. 507, 3 So.2d 761, the Supreme Court held that, “An es-toppel may not be invoked to validate a proceeding which is invalid per se.” In Conover v. Allison, La.App. 1 Cir., 178 So. 756, the court said, “As the tax sale was null for the reasons stated above, plaintiffs cannot now give life and effect to an invalid deed by urging against the owners a plea of estoppel.” And, in Boagni’s Heirs v. Thornton, supra, we held that estoppel may not be invoked to validate a proceeding which is invalid per se. In our opinion, the rule applied in these cases is applicable here. Since the 1940 tax sale to Mr. Nanney was an absolute nullity, plaintiff cannot validate that sale by means of a plea of estoppel. We find no merit, therefore, to the plea of estoppel or laches filed by defendant.

For the reasons herein assigned, we think the trial judge erred in decreeing that defendant is the owner of the land in dispute here. In our opinion, plaintiff Johnston acquired a valid title to the property by virtue of the deed from the trustee of the tax debtor and the later redemption of that property* from the adjudication for 1930 taxes.

Mr. Nanney, in his answer to the appeal, urges us to consider the correctness of the District Court’s ruling on the plea of abandonment and want of prosecution of this suit for a period of five years. The original monition proceeding was instituted by Nan-ney in January, 1949, and Johnston filed an opposition in that proceeding on June 30, 1949. No step in the prosecution of the suit was taken by Mr. Nanney thereafter until February 5, 1960, at which time the minutes of the court show that “By agreement of counsel, case fixed for February 19, 1960.” Counsel for Mr. Nanney then wrote a letter to opposing counsel on February 11, 1960, advising that he could not try the case on February 19, but that he would be able to dispose of it either at the March or April term of court. The minutes of February 15, 1960, then show that “Upon motion of counsel, fixing upset and case refixed for April 8, 1960.” The motion to dismiss the suit for want of prosecution was filed on March 31, 1960, and judgment was rendered dismissing the rule prior to. the trial of the case on April 8.

Although Article 3519 of the Revised Civil Code (now Article 561 of the LSA-Code of Civil Procedure) provides that when the plaintiff shall allow five years to elapse without taking any steps in the prosecution of the suit, he shall be considered as having abandoned it, the jurisprudence has been established to the effect that when the defendant takes any action in the case inconsistent with an intention to have the demand treated as abandoned, he waives his right to have the abandonment decreed. State v. United Dredging Co., 218 La. 744, 50 So.2d 826, Green v. Small, 227 La. 401, 79 So.2d 497, State ex rel. Shields v. Southport Petroleum Corporation of Delaware, 230 La. 199, 88 So.2d 25 and Wilson v. King, 233 La. 382, 96 So.2d 641. Assuming, therefore, that Mr. Nanney has occupied the position of a defendant in this case since 1949, it appears to us that his agreement to fix the case for trial in February, 1960, and the actual fixing of the case for trial pursuant to that agreement, constitutes a waiver of Nanney’s right to have the abandonment decreed. The trial court, therefore, correctly refused to dismiss the suit for want of prosecution.

For the reasons herein set out, therefore, the judgment of the District Court is reversed, and

It is ORDERED, ADJUDGED and DECREED that Ben T. Johnston, plaintiff herein, be and he is hereby decreed to be the lawful owner of the following described lands, situated in Vernon Parish, Louisiana, to-wit:

SW[4 ot bW>4 Section 6; SEJ4 of NW^ and NEJ4 of SW14 Section 7, Tp. 2 North, Range 9 West,

that judgment further be rendered quieting his title thereto, and decreeing that as owner he is entitled to the full and undisturbed possession of such property.

It is further ORDERED, ADJUDGED and DECREED that the defendant, A. H. Nanney, pay all costs of this suit, including the costs of this appeal.

Reversed and rendered.

On Application for Rehearing

En Banc. Rehearing denied.

TATE, Judge

(concurring in denial of rehearing).

The grossly inequitable result in this case seems to be required by the jurisprudence discussed and followed in Boagni’s Heirs v. Thornton, La.App. 3 Cir., 132 So.2d 494. However, the facts of the present case differ somewhat from those in the decisions relied upon and may justify a different result.

In the present decision, the purchaser had acquired lands by tax sale from the State and had possessed them for many years. Nevertheless, because at the time of the tax sale the land had already been adjudicated to the State because of the same tax debtor’s earlier non-payment of the 1930 taxes, all subsequent transactions concerning the property are deemed nullities, because the title to the property is deemed to have been in the State at all times following this earlier adjudication.

Thus, when the original tax debtor redeemed the property from the earlier (1930) adjudication in 1949, the tax debtor is held to be re-invested with title to the property, despite the fact that Mr. Nanney had acquired ten years earlier pursuant to a subsequent tax sale resulting from the nonpayment of 1939 taxes owed by this same tax debtor.

While I agree that the latter tax sale should be invalid against the State itself and against those buying from the State by sale, nevertheless, if this were a matter of first impression, it would seem to me that the tax debtor who redeems from the first adjudication (and those acquiring through him), should not have any standing to urge the nullity of the subsequent tax sales made because of his own nonpayment of subsequent taxes.

That is, by the redemption for 1930 taxes, the tax debtor should be restored only to the position he would have been in if he had paid the taxes for that year — but not to the better position which we have held him entitled herein, by which he is reinvested with full title to the property just as though he had paid the taxes on the property after 1930, when in fact he failed to pay them. Thus, the tax debtor redeeming for non-payment of 1930 taxes should have no better standing to attack the 1940 tax sale (which resulted from the same tax debtor’s non-payment of subsequent taxes), than if instead he had paid the 1930 taxes — in which case, the five-year peremption would bar his attack in 1949 upon the 1940 tax sale.

I think that a serious question is presented by the effect of the 1938 certificate of redemption for non-payment of the 1931 taxes, from which certificate the defendant Nanney’s title stems.

We hold that no title was revested by this certificate of redemption based upon adjudication for 1931 taxes, because the same property had earlier been adjudicated to the State for non-payment of 1930 taxes. (In 1949, following filing of this suit, the plaintiff Johnston secured a certificate of redemption upon payment of these 1930 taxes.)

We hold that, after the earlier adjudication for 1930 taxes the tax assessors were without authority to assess and sell the property as belonging to the owner or any other person, since the State had acquired title to the land by the earlier adjudication. Therefore, we hold the second adjudication ■for non-payment of 1931 taxes to be invalid, so that the 1938 redemption from such invalid adjudication is likewise a complete nullity.

The statutory enactment applicable to this certificate of redemption provided that when issued in compliance with the statutory provision such certificates of redemption shall “be held and taken as evidence of the full and complete redemption of such lands, and as legal and valid.” LSA-R.S. 47:2224 (this provision is derived from Act 88 of 1928, and was applicable to certificates of redemption issued under both the 1898 act and also the depression Act 47 of 1938, under authority of which latter statute the 1938 certificate of redemption was issued.)

Because the 1938 certificate of redemption for unpaid 1931 taxes upon which the defendant relies stated that it was issued “without prejudice to any privileges or mortgages of the State * * * for other taxes”, I am not prepared to dissent from our holding that this 1938 certificate of redemption was not “legal and valid”, see LSA-R.S. 47:2224, and did not constitute the “full and complete redemption of such lands”, LSA-R.S. 47:2224, since the property had also earlier been adjudicated to the State for unpaid 1930 taxes.

A strong argument can be made, however, that under the statutory language the 1938 certificate of redemption was legal and valid and constituted a full and complete redemption of such lands and that, strictly speaking, it did not prejudice any “privilege” or “mortgage” of the State for any other taxes, as these terms are technically defined. This is especially true because the 1938 act under which this redemption was effected was designed to get property back upon the tax rolls upon payment of only one year’s taxes, even though several years’ taxes had not been paid.

Fiedler v. Pipes, 236 La. 105, 107 So.2d 409, concerned a sale by the State of lands previously adjudicated to it for nonpayment of taxes. The original tax debtor subsequently redeemed them and contended, inter alia, that the intervening sale was invalid because it was based upon a subsequent adjudication for 1934 taxes, whereas the tax debtor redeemed from an earlier adjudication for unpaid 1930 taxes.

The holding in the decision was that the tax debtor’s redemption for non-payment of 1930 taxes was a complete nullity, because the State had already sold (not redeemed) to a third person after the tax debtor’s vested right to redeem the property had expired. Although this holding may not be directly applicable to the present situation, nevertheless the rationale is persuasive, to the effect that, after the tax debtor’s vested right to redeem had expired, the tax debtor had no standing to attack the nullity of another’s title, after the State had divested itself of title, on the ground that instrument by which the State transferred the title to the other stated that it was based upon the invalid second adjudication for unpaid 1934 taxes, rather than on the valid first adjudication for unpaid 1930 taxes.

If the Supreme Court should see fit to re-examine the question, it may well he that it will reach the conclusion that the rule followed in the line of decisions summarized by Boagni’s Heirs that transactions were nullities relating to properties previously adjudicated to the State, was never intended to permit the original tax debtor to claim back property abandoned by him for many years, at least insofar as third persons who had acquired rights in the property resulting from this same tax debt- or’s non-payment of taxes in subsequent years. To permit the tax debtor to do so, is to reward laches and to permit the wrongdoer to profit by his own wrong, to the prejudice of innocent third persons.  