
    CHAS. B. LEVY, versus LAWRENCE HERMAN
    No. 8421
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    November 27, 1922.
   This is a suit to recover the sum of One Hundred and Forty-Eight Dollars and Seventeen Cents ($148.17) from defendant, 'who was formerly vendor of certain real estate upon which pity taxes for year 1918 had never been paid. The amount claimed represents a sum total paid by plaintiff, the former vendee who subsequent to acquisition from the vendor, defendant herein, was compelled to redeem the said real estate Sold at city tax sale for the delinquent caxws aforesaid.

There was judgment for plaintiff in the amount prayed for, and defendant has appealed.

For determination of the matter before us, the deseriptibn and locality of the property is not important, no question of title thereto being involved. The only issue is liability vel non of defendant under the warranty clauses of the deed.by which he conveyed to plaintiff the property subsequently .sold, or partly sold, by the City of Hew Orleans in satisfaction of delinquent taxes for the year 1918.

The evidence is conclusive that in the deeds of sale and re-sale involving the conveyance between the parties, coupled with usual clauses of warranty and subrogation, all taxes were declared and warranted by defendant to have been paid up to and inclusive of City taxes for the year 1919. All parties mentioned in the deeds believed this to be a fact. It was not disclosed to the contrary until sfter advertisement and sale by the City of Hew. Orleans of a portion of the property to one 3. J. Z-ahn, from *hom plaintiff redeemed by payment of the amount now sued upon. It is specifically alleged in the petition, not denied in the answer, and therefore to be taken ss true, that plaintiff, being informed of' the tax sale attempted without avail to have defendant' redeem the property, and failing in this, that plaintiff was compelled to ao so himself.

We find that through error of: assessment appearing on the City's assessment rolls for the year 1917, property owned by defendant and sold by him in that same year to other parties than plaintiff; was allowed to remain'in defendant's name while the property which defendant had not sold to anyone until he sold to plaintiff in 1919, was assessed to those partiew to whom he had sold in 1917. The result of this 6rror on the part of the assessment officials, was that in the year 1918 when plaintiff paid City taxes for that year, he was given receipt and credit for payment of City taxes of 1918 on property which he had previously sold in 1917. Failing, as he admits; to carefully read and examine the receipt given for 1918 taxes, he remained in the complacent, but erroneous, belief that he had paid all taxes on the property finally conveyed to plaintiff in 1919, and subsequently sold by the City for the delinquent taxes of 1918.

It is not an issue before us, nor are we concerned with determining by whose fault the error arose resulting in the ultimate tax sale which undoubtedly clouded plaintiff's title to property bought in good faith and under all precautions Which the law could reasonably impose upon a purchaser of real estate.

The invalidity of the tax sale under which Zahn aoquired and from whom the plaintiff redeemed, is pleaded by defendant, as the sole defense to tints suit. He has alleged ana attempted to prove the erroneous assessment above referred to, as well as failure on the part of the tax authorities to serve notice of delinquency on either parties to this suit. It is argued, that because of these irregularities, the tax sale íb' striken with nullity and relieves defendant of any liability to plaintiff or others arising from the tax sale or redemption. Such a defense is a collateral one, not pertinent to the issues arising from this ease', and cannot be pleaded as a valid defense 'against the cause of action,-which has arisen.

As afores-tated, .the warranty clauses in the .'deeds -of sale by which defendant conveyed to the plaintiff herein, and the subrogations given in favor of all of plaintiff's transferees against eny defects in the title to property, conveyed, and• partícula vly against any encumbíañ®®® WMsfe Sight bay® ex- .... '■ • > ‘,,7 .„'rr.lJií-u -,X\\ ,i ’Jü[L1C..vví.í: óS ■•:."* o íi .rU'*. isted at the time of the conveyance, assures to the plaintiff rs"5iX at ■ I.V.O OÍ , J-..-;.-,- ' - -herein a right and cause action in seeking sugh peligf against --- S--t. -. '.,iO c„o oi; uoitn In ,:i., ..w . defendant as will held him harmless from any liability for taxes j_„í nos..; Ni /.■•tkm.ss ? •' -,!.y ••,.5'* or other encumbrances which arose prior to, or at the time of '■'“fir U i j'tj Tit it „■ i. .; t, 0 1- C . O j the deeds of sale.

Vie find frgm the gfi^er¿g§ iñ tMs 0&se thit the neoessity for a redemption of the property &§ ü!®á§ fey plaintiff arose through no fault of his, and that defendant, unjLgr his warranties, is bound to place him in that position in teiqh he would have been at the time of the conveyance. We also find ho wor. ,.u i'tvci t- y. ... b . ... as a necessary conclusion from the pleadings of this Case, that hsat.fcf/sr^ ooriolu;,. oj. j.-, •¡-‘i.i'u .i. ■ defendant has made a record admission to the effect that he was ;k ¡-.h's . ,acic- a r;g-... • ......' given opportunity to avoid the neoessity of plaintiff's bringing .* V'Cl1. 0¿ uO J \.0 .< v. ' ’ . j • j j;, ¿ , C j i fhis suit, and that he himself could have redeemed the property í-Ni-cT iKl os ¿í./- uiAí v .*.£ <.r>v.í J" 'jy‘-\1u .» yf; * *. •* and fulfilled the warranties undertaken hy him. Even though tv.r.% ..'.'xj...'.. ..c;.. onoorta.. j i '. .: ■ , ... the error from which this litigation has arisen i& thgt of a ¡rtig 8t?0T .from wrx.Vo this il-.i Jetion v* . third party, not made a litfsant in the proceedings, it is no <t i-|¡ r/lt '.V-oocOdjr'g: . defense to him whose duty is to comply With h.ig warranty, to plead the fault of said third party as a defense iso hi§ liability,

Whatever the defendant's remedies may be to Vti.i.'i-.' • ' i ; ;■ i .reooup t,he losses growing out of the erroneous assessment and veo;: ...;¡: o,o . row 1 y . ■■ ■ ■ i* - . • .. ■ Subsequent tax sale and redemption, defendant cannot collaterally ¡,;uD.v;.<£tt¡>rvc tax oslo >:¡¡f »di-r -li-on, d-.¡'t..i,í>s-'jt o...... -* "+-hers, or of his own, as a defense against plead the fault oí o ufe**;’ nx ¡ bis own. „e .- , .. . JV , +._ ,. , , • J'-iflobted to one the liability for v/hioh he alone is primarily íuuenú f> ;.x . who has suffered because of the error not chargeable against the plaintiff.

For these reasons, we are of the opinion that the judgment appealed from is correct.

?l 3-S therefore ordered, adjudged and decreed, that the judgment Jiprein appealed from be, and the same hereby is, affirmed, at defendant's cost in both courts.

JUDGMENT AFFIRMED.

November 27, 1922.  