
    No. 10,491.
    Succession of Camille E. Girardey.
    Liens, privileges and mortgages for taxes are excepted from tlie general rule that judicial sales have effect to cancel mortgages and privileges and to refer them for satisfaction to the proceeds of sale.
    Such privileges and mortgages are governed by special legislation in reference thereto, under which they adhere to the property until paid or extinguished in some other legal mode, notwithstanding any sale.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.
    
    
      B. R. Forman for Plaintiff and Appellant:
    1. The judgment for the drainage assessments, rendered in January, 1875, in 27 An. 20, is prescribed by ten years (C. C. 3547) and the inscription thereof should be canceled in the absence of proof of revival and reinscription.
    2. This drainage assessment can no longer be collected and should be erased as an illegal incumbrance on property. Davidson vs. New Orleans, 34 An. 170; Succession Patrick Irwin, 33 An. 64.
    3. All money judgments are prescribed in ten years (0. C. 3547) and their inscription as judicial mortgages is perempted (C. C. 3369).
    4. In sales under execution, judicial sales, probate sales under order of the court to pay debts, and in insolvencies, the sale cancels the mortgages and privileges, and the debts so secured are referred to the proceeds and the court can, on rule to show cause, order the cancellation of the inscriptions. Larthet vs. Hogan, 1 An. 330; Aieard vs. Daly, 7 An. 612; McNeil vs. Ilauck, 24 An. 828;aBlair. vs. Taylor, 25 An. 144; Merrick vs. MeCausland, 24 An. 256; Canal Bank vs. Recorder, 27 An. 291; Dutrey vs. Laguens, 28 An. 753; Life Association vs. Hall, 33 An. 53; Bayhi vs. Bayhi, 35 An. 528; Beltran vs. Gauthreaux, 38 An. 107.
    5. “ The property on which were assessed the taxes has been sold under the orders or the Second District Court, and it is clear that the privilege for taxes was transferred from it to the proceeds of sale.” Succession Zachary, 30 An. 1260.
    “ In this instance the property sold (at a probate sale) was burdened with a privilege for taxes in question; when the sale took place this privilege attached to the proceeds.” Succession Dupuy, 33 An. 260.
    
      G. Each specific piece of property is only affected by the privilege for taxes on it and for no other taxes; and if the inscription does not identify the property, there is no privilege and it should be canceled. All taxes and tax privileges are prescribed in three years. Act 18, 1876, p. 11; Act 96, 1877,-p. 142, Sec. 86; Act 77, 1880, p. 95, Sec. 24; Act 96, 1882, p. 130, Sec. 34; Act 98, 1886, p. 145, See. 34; Act 85, 1888, p. 124, Sec. 33.
    
      W. B. Sommerville, Assistant City Attorney, and Wynne Rogers, Attorney, for Tax Collector, contra:
    
    X/iens and privileges in favor of the State and city for taxes, and recorded in the mortgage office, are not transferable to the proceeds of sale. Morris vs. Lalaurie, 1 So. R. 659; 39 An. 47.
   The opinion of the court was delivered by

Eenner, J.

The property of this succession having been duly sold at probate sale to pay debts, a certificate of mortgages was obtained which exhibited sundry conventional, legal and judicial mortgages standing against the property, besides numerous tax liens and privileges in favor of the State and city.

Thereupon the administratrix took a rule against two of the private mortgage creditors, the City of New Orleans, the City Comptroller, and the State tax collectors for the several districts of the city, requiring them to “show cause why all the inscriptions reported in said certificate of the Recorder of Mortgages should not be erased and canceled, and why the said tax collectors and City Comptroller should not erase and cancel from their respective books all claims for State and city taxes as claiming to bear upon the property described, and their respective claims be referred to the proceeds, and said officers be ordered to give their certificates to be annexed to the acts of sale, showing that said claims have been canceled and erased.”

Under this prayer we consider nothing at issue in the proceeding, as between the succession and the State and city, except the legal question whether or not a probate sale of property to pay debts has effect to transfer tax liens and privileges from the property to the proceeds of sale. Counsel for plaintiff in rule, in his brief, states-that the relief sought was “to show cause why all the inscriptions should not be 'erased and canceled and their respective claims be referred to the proceeds.” We shall, therefore, decline to consider the questions suggested in other parts of the rule and of the briefs, attacking the validity of the tax inscriptions as affected by prescription and other defences. The question here is not whether the claims are valid, but whether they are to be removed from the property and referred to the proceeds. The judge a quo evidently took this view of the rule, because he discharged it absolutely, although sundry of the tax inscriptions are admitted by all parties to be prescribed, and although it is elementary and not disputed by any one that the sale had effect, when duly executed by payment of the price, to transfer the private mortgages and privileges to the proceeds for satisfaction.

We shall, therefore, confine our discussion to the question above indicated, viz: whether or not the judicial sale of property has effect to discharge it from tax liens and privileges, to refer them to the proceeds of sale and to pass the title to the purchaser disencumbered of such liens.

Whatever may be said of the wisdom and .policy of such legislation, the revenue statutes of the State leave no room for doubt that property subject to tax liens and privileges can not be disencumbered thereof, otherwise than by payment of the taxes or by their extin guishment in some other legal mode, and that no sale can have effect to relieve the property sold therefrom and to refer them for satisfaction to the proceeds.

Sec. 2519 of the Revised Statutes, reiterated expressly in the general revenue laws subsequently passed, provides: “Hereafter, neither recorders, sheriffs notaries or other persons, authorized to convey real estate by public act, shall pass or execute any act for the sale, transfer or exchange of any real estate, unless the State, parish and municipal taxes due on the same be first paid, to be shown by the tax collector’s receipt or certificate to that purpose.”

Such provisions are obviously inconsistent with the claim advanced by the plaintiff in rule.

. So far from transferring the tax liens from the property to the proceeds of sale, the law holds the title to the property in statu quo and prohibits its passing to the purchaser at any sale, public or private, until the taxes due thereon are first paid. We need not discuss the validity or effect of Act No. 88 of 1888, amending Sec. 2519 R. S., because it perpetuates the same principle in a modified form.

Several cases are quoted in which the right of the State and city, consenting thereto, to look to the proceeds of sale for satisfaction of their taxes, has been recognized. Succession) of Zacharie, 80 An. 1260; succession of Dupuy, 33 An. 260.

But these cases obviously rest on the consent of the taxing authorities and the absence of contest.

When the question was squarely presented, in absence of such consent, we very recently held that the tax liens and privileges adhered to the property notwithstanding the judicial sale and were not transferred to the proceeds. Morris vs. Lalaurie, 39 An.

Plaintiff’s right to test the validity and existence of the taxes and the inscriptions thereof, in a proper proceeding, is reserved, and with this reservation.

Judgment affirmed.  