
    Char1es F. C1aiborne, Judge.
    JOSEPH TOMSANY VS. JOHN D. ABADIE
    No. 7774
    April 19th, 1920.
   CHAHI.ES ¶. CLAIBORNE, JUDGE.

This suit has a bwo-fold object, first, to annul two tax sales of the same property to the defendant, and, second, in the alternative, to compel the defendant to permit the plaintiff to redeem the property.

The plaintiff, a resident of Pennsylvania, alleged that he was the owner of tract of land situated in the Parish of Jefferson for having purchased the same on August 30th, 1910 by act of E. K. Henrlqjies, Notary, Registered Book 29 p. 648; that John D, Abadie claims to have acquired one undivided half of said property at 8 sale for taxes of 1913 made on June 26th, 1914, and the other undivided half at a sale for the taxes of 1914 made on August 26th, 1915; that both of said tax -sales are null for-the rC&oo-n that no notice was served on petitioner prior to either tale; that on 'December 3d, 1917 petitioner, by notarial act, tend¿red the said Abadie a sum sufficient to redeem said property from both of said tax sales, which Abadie refused to accept; and he prayed for.judgment annulling said two tax sales, and, in the site-motive, recognizing his right to redeem, and his ovjnership of the property.

Defendant Abadie pleaded a gou-iral denial; he averred that he had'hoúght the undivided half of the game at a tax sale made June 20th, 1914, and that he had o-en in possession of the same since his purchase; and that on August 7th, 1915, at another tax sale, he had bought the other undivided half of the sane property, and that he had been in possession of the whole since his purchase; he pleaded the prescription of one and three years; he further averred that he paid taxes on the same ahd built fences, and ploughed and drained it, and planted trees upon it; he prayed to be qui^ed in his title, and in the alternative to be reimbursed his taxes and expenses.

There was judgment for the plaintiff annulling the fcwc' 8»l«e for wont of notice on plalntlffy^elmburslng the .defendant #72.68 tho amount paid fey him at tho two tax sales.

ThO defendant has appealed.

Upon the trial of the caee the plaintiff introduced evidence to ehow, and upon the argument in thie Court, urged, that the defendant had agreed to permit the plaintiff to.redeem; and had extended the time allowed fey law to redeem^- .and that, therefore, the tender made in December 1917 was timely, fe will take up thie point- first.

Article 233 of the Constitution of 1898 provides that S

•the property sold (for taxes) shall be redeemable at any time for the space of one year &c" -

and Section 63 of Act 170 of 1898 p 346 (376) provides

•that said property shall be redeemable at any time for the space of one year beginning on the day when the said deed is filed for record in the Conveyance Office ftc*

This Statute has been upheld in 139 La., 354; 119 La., 662; 142 La 743, and in State ex rel Curtis vs Ross, 144 La., 898 (912). The sale made in June 1914 was registered in the Conveyance Office on June 26th, 1914; and the sale made in August 1915 was registered in the Conveyance Office on September 3rd, 1915.

Joseph W. Sheldon testifies that in March 1916, one year and three months after the registry of the first dale, he received a- letter from the plaintiff herein, Joseph Tomsany, a resident of Pennsylvania^in the following words:

"Please pay the taxes for the 8 acres of my land at Crown Point too";

that he called upon the defendant, John fi. Abadie, and informed him of the letter he had received, and told him he came to see him with a view of repurchasing the land for Tomsany by paying him his costs; that, at the first interview, Abadie dLd not appear willing; but that, at a subsequent Interview, Abadie said he had speri-t considerable money in improving the property and that he was not going to lose the money; but that he did not want the man's land, and that he could'have it if he paid him his expenses; in a personal interview he had with Tomsany in New Orleans, he believes in July 1916, Tomsany.told him.he would take legal steps to recovdf his land; - witness told Abadie repeatedly that he was waiting for his account in order to make him a tender, and Abadie promised to make it^but never did.

Edward P. Henri que^C-testified that on January 18th, 1917 he received a letter from the plaintiff who wrote:

"You know I bou/£ 8-3/4 acres of land >f or $800.00 from Hr. Glisson at Crown Point; it has been sold for taxes, lir. Sheldon promised me that he would get it transferred hack on my name. Please help Hr. Sheldon to do it";

that he telephoned to Abadie and told him that Tomsany had requested him to attend to redeeming his property from the tax sale; that, as he recollected it, Abadie had told him that he-had promised Hr. Sheldon to redeem the land, that he would carry out his. word as soon as he was ready; but that he was displeased because he had heard that Tomsany had come to town and had not come to see him.

Plaintiff also offered in evidence a notarial act dated December 3rd, 1917 tendering to Abadie the purchase price of the two 'tax sales. This tender, morethan one year aftf.r the registry of the tax sales, cannot avail the plaintiff, unless we hold that defendant had agreed to allow the redemption and had extended the time to do it.

The defendant, Abadie, denied that he had agreed to the redemption of the property. He testifies as follows:

Q. Did you evqr promise him (Sheldon) that the property could and you would let the property be redeemed?
A. Ho., I refuwed to have any dealing at all with Hr. Sheldon in the matter".

He denied also .that he had ever had-any conversation with Hr. Henriques; well he might, as the conversation was over the telephone, and.it appears that he did not know Hr. Henriques; he refused to accept the notarial tender.

Richard Bragne swears that about three months after the first sp]e, vi*5 p2ace of busir.es?: in this City, he notified plaintiff of tYfi tax sale.

Edv-rrd 7. Henriques testifie- that to his personal knowledge the plaintiff was r.ot in the City of Hew Orleans between the years 1913 and up to the summer of 1916 - and that during that time he was in Pennsylvania.

At the time the matter of redeeming the lands was taken up by Sheldon, some time after March 1916, the delay-for redemption from the first cale (June 1914) had expired; hut- the delay had not expired as to the second sale, September 1915. We cannot easily presume that the defendant waited an acquired right as to the first sale, and it does not appear, that he did. His consent to‘the redemption of the fir«t sal* and his promise to furnish a statement, did not change plaintiff's position, nor lure him into inaction until the delay for redemption had eixpired, as in the case of the Succession of Spotorno. It ms i,,ithout consideration and could oe withdrawn by him at any time. The most favorable conclusion for the plaintiff that we can draw from the vague and unsatisfactory testimony on this point is that the defendant consented to allow the plaintiff to redeem tb** second sale or so ranch of the property as he h?d the rioht, at that tim«, to redeem under the law. Whether by that consent he had agreed to extend the time within -which the plaintiff was bound to redeem the second sale is immaterial as we shall see hereafter. The fc.cts of this case are not similar to tho**'» in Succession of Spotorno vs Howcott, 119 La., 1032. In that case the Court found that Kowcott, in writing, ha$l recognized the right of plaintiff to redeem, and said that he would dispense with a regular t^nd^r, *»n<3 would let plaintiff know later what the amount required was; all this before the expiration of the period of redemption. The Court held that the effect of the letter wa.* to extend the delay for redemption..

II. Was the plaintiff notified by the tax collector that the property would be advertised for sale? The learned Judge of the District Court annulled both tax sales for the want of a legal notice. His reasons were rs follows:

"This is a suit to annul an alleged tax-title by which defendant clsi.n? to hold plaintiff's property situated in Jefferson Parish. The plaintiff alleges non service of the notice required by Article 233 of the Constitution. It appears that the only notice attempted to be served was by registered lotf.er freí the tax-collector to the tax debtor. This or t^ese registered letters were returned undeiiv«redy»nd¿ without investigating tbf kind' ofhotioe, It. la eertainr-that no kind TO served, ge ee-lrequired. Sha' "notlsa^ la made a condition precedent to a tax sale; banca I infer tba nullity of the alleged «ale hereln.Vnder tba Article In question the method of sorvlee may he- directed hy the Legislature; hut the formality of serving notice is fixed and must be compiled with, not abrogated by the Legislature. A self-operative provision of the Constitution cannot be changed or abrogated by the legislature. The defendant claims in recon-vention if the nullity is upheld his rights as provided in Article Constitution 233. He claims more; but is entitled to the price paid, all taxes and costs paid, with ten per cent per annum & c. This is figured by plaintiff at #72.58 and Was tnede.red prior to suit. Judgment annulling tax sales on paymfent of #72.58 and costs herein to follow against defendant".

Article 233 of the Constitution provides that;

"There shall be no forfeiture of property for the nonpayment of taxes, State, levee district, parochial, or municipal, but at the expiration of the year in which said taxes are due the collector shall, without suit, and after giving notice to the delinquent in the manner to be provided bjr law, advertise for sale in the official journal of the parish &c".

Section 50 of Act 170 of p 370 provides:

"That on the second day of January 1899 and each subsequent year, or as soon thereafter as possible, the tax collector or sheriff shall address to each tax-payer who has not paid all the taxes which have been assessed to him on immovable property, written -or orinted notice in the manner provided for in Section 51 that his taxes on immovable property must be paid within twenty days after the service or mailing of said notice, or that said property will ot «old according to law & c".

Section 51 próvidos:

"That the tax collector or Sheriff shall either deliver to each tax-payer in person or shall leave at his-residence or placa of business in the Parish of Orleans one of said notices, and a return or statement in writing of the mode of such service shall be made by the officer serving the same and be filed in the offi.ce of the tax-collector or sheriff and shall be received by the court» as prima facie evidence of notice. In the country parishes this notice shall be sent by registered mail. After the Sheriff shall have completed the mailing of the notices herein required, he shall /aalce out a proces-verbal, stating therein the names of delinquents so notified, their post-office address, brief description of the property, amount of taxes due, which proces-verbal shall be by him signed officially in the presence of two witnesses ana by hi a filed in the office of the Clerk of Court for record and pr?ssrvation. Said proces-verbal shall be received by thu Courts as evidence".

Section 52;

"That the tax-collector or Sheriff shall publish once a week for two weeks, in one newspaper published in his district or parish, if thers be one, or in the manner provided for judicial safes if there be none published in this parish, one general notice, substantial]y in the foregoing form, addressed to oil unknown ownc-rs, and non-residents whose post-office address is unknown of asses .ed immovable property situated in hi.s parish or district, in *"hich he shall describe th* property as described in tax roll. &c". The tax-collector’s act of sale to Abadic recite?Í "I made out and mailt'1 to said Joseph Tomsany by registered letter a notice in conformity with said Act No. 170 of 1898 & c".

The presumption is that this recital is true. Const.Art. 233; 37 A., 417; 47 A., 1605; 131 La., 541 (553).

Besides, it is ad~itt*d as to the tax of 1913,

"that on the 1st day of April 1914, a delinquent tax notice was mailed to Joseph Tomsany by registered mail to Crown Point, the address of said Tomanny last known, out that said notice was mailed back to the Sheriff and ex-officio tax-collector of s&id Parish unol^iméd";

the afi'ft* admission wats made aw to the notice for the tax of 1914,

In the case of Hoyle vs Southern Athletic Club, 48 A. 879 the Court said on p 883;

"It might well be that in point of fact no notices w*re actually received by any of *ch* parties nnd yet the sales could stand, for if th* as*?***•; i'.-nta w«re properly made and th«* tax-collector in giving the notices conformed to the requirements of the statute und of the law, it would not follow that fch^y would bo ineffectual oecausc they did not reach the parties th»?y wore intended bo reach. It frequently happens that citations *v'ds through service at the domicile ar« :isluid or are not handed to t'*t p *rron bo j« cited - none the less the citations - arc -re'l mode. Ago in, in matters of notice of dishonor of notes, if the requirements of a statute be followed, as to time, place, and mode of service, as for instance by placing a letter oroporly addressed and prepaid in the postoffice within the time fixed by law, it has been held that it is not necessary to prove that the letter was received and th=> t ^iscarring» would not prejudice the party giving notice. t^(Ve are therefore to inquire whether there be evidence before us going to show that notice was properly sent". See 51 A., 972 (979) In Baum vs Smith, 127 La., 1089 the Court sj^id on p 1091,

1092:

"Allowing him, however, the full benefit of his positive statement tkax he did not receive the notice, the fact remains that the notice was regularly mailed to him in the manner required by l.--,',r, rnd the ru-íc-tio-* is prAs<totsd whether, where all th& f or'ia] ities prescriusd by law have oeen observed in the proceedings for the «nforce.unt of the payment of delinquent taxes, the tax sale i* to o* set asids, simply becau-e th*. tax doctor is able or willir*c. to testify that as r. matter of fact he never received the delinquency notice . We think not". 144 La., 934.

The crs«j of Mc Crory in 130 La., 212 is not in conflict with these cases, because the Sheriff was informed of the tax-payer's correct addrés$ and yet failed to notify him.

But if these notices by registered letters addressed to the plaintiff under 8ection 51 can be considered insufficient, 'the defendant offered in evidence four copien of ’'The Jeffcr-on Democrat,w doted May 2d end 9th, 1914 rud May 8th md 15th, 1915 containing, in accordance with Section 52 of Act of 1898 quoted above, a "Special Notice to unknown own ero of i.naovpul& property in the Pariah of Jefferson", notifying them of their delinquency for taxes and notifying them that if thay were not p\id within twenty days the Tax Collsctor would sell the property assessed to pay the taxes; in the*« adv?.rtissn«*nts appear, in raised letters, the name of "Joseph To'msany" and the description of cue property claimed herein.

Thes« advertisements appear to us to meet the requirements of Section 52 at to the notice to be "addresi-esd to all unknown owners •-nd non-residents whose post-offico address is unknown" . The Sheriff had complied with Section 51 by mailing to the plaintiff a registered notice addressed to th* place where the property was situated, and where it was presumed the plaintiff had hie reticence, or place of business, or an a^&nt; uhe notice wan mailed back to him; the Sheriff for lack of better information, followed the course dicatud by Section 52; The evidence is that plaintiff was a non-resident.

3'ut the plaintiff objected to th**. introduction of these advertisements upon the ground that it wa*

"an attempt to vary the declaration in the tax deftds, to the effect that notice of delinquency was made by service of registered mail"•

We do not think that the objection was well mad*. The evidence did not vary or contradict the tax deed. It merely proved a service in addition to the one mentioned in the deed, and went to show that the notice required by law hc-d b * *n given.

In the case of Harvey vs Gulf States Co.,. 108 La., 550, the Court said on p 552;

"Plaintiffs objeet-d to the admission in evidence of the official written return of the officer who had served the notice, and also to parol showing the manner of th*: >-.rvice, on the ground t/st "the act of sale declares that S'-vice was made on Clarence J, Harvey and others, and d ^«ndrnt cannot contradict this declaration in that act". We think this evidence was admissible. The recital of the deed was an error, and such errors in Sheriff’s deeds may be shown by parol, 46 A., 1571; 35 A., 560; 36 A., 549; 12 A., 142; 41 A,, 15; 42 A., 918".

The cas* of th« Succession of Williams, 112 La., 1075 is not in conflict. In that case the aeed recited that the notic* had been served on tb« tax payer in person, or left at his residence or place of "business, and that it had bet*n addressed to Williams. The defendant attempted to show that the notice had Veen addressed to an * owner unknown” and that the property had been advertised and sold as such. The Court properly said that such evidence would make a different case from that presented by the deed and properly excluded the evidence.

In the case of Adams vs Basile, 35 A., 101, the Court said: °it may be that the service was good. It is the return which is bad. x x x In such a case the Sheriff would be authorized to make a proper return be?amendment or otherwise conforming with the facts and t^ie law. 21 A., 27; 10 M., 91; 2 R., 485; 8 R., 236; 3 N. S., 489; 5 La., 287”.

But the rules governing notices in tax matters do not partake of the strictness applicable to citations. Mohr. vs Marks, 39 A., 579; 108 La., 551.

In Webre vs Lutcher, 45 A., 574, the Court said:

”The question presented is whether or not the plaintiff was an unknown Owner of assessed immovable property? If so, it is not pretended that the notice by publication is not legal and valid, x x x If the tax payer fails in his duty in furnishing information as to his residence, he has himself to blame if he finds himself in the list of un-knovm owners of property, x x x He (the Sheriff) could not comply with Sec. 50 because he did not know the absent owner. He did not live in the parish and had ho agent there, therefore he could not make wither a personal or domiciliary service. He could not serve notice by mail because he did not know th4 absent owner's address. There was but one mode of making service, which was by publication, as prescribed, in Art. 210 of the Constitution end Sec. 51 of Act 96, for service on unknown owner of assessed immovable property. The plaintiff wqs to all intents and purposes and within th* meaning of Art. 210 of th'* Constitution and Act 96 of 1882 an unknown owner ~of th* property asse to J. M. Webre".

Th* J^ct of 1898 is broader than th* Act of 1882. Whil* the latter speaks only of ’’unknown owners”, th* former governs "non-residents whose post-office address is unknown" by th* same rules which apply to unknown owners; and plaintiff was a non-resi•dent whose post-hffic« address was unkn&wn.

III. Service of citation in this case was mad* on defendant on December 11th, 1917. Ths first sale to him was r*cord*d on June 26th 1914. More than three years therefore had elapsed "between th* date of the recordation of the tax d«*d and the filing of this suit, and under Artici* 233 of the Constitution prescription had accrued in favor of th* defendant as regards the first sale. Th* interpretation of that Article by th* Suprema Court is, that legal possession b£ tax titl* during three years is sufficient to base the prescription of three years in the absence of corporeal possession by the tax-debtor. 109 La., 641 (650, 657); 138 La., 398, 507.

IV. But, at the time of th* second adjudication to th* defendant, the plaintiff was owner of one undivided half of th* property and the def*ndant of the other undivided half. They wer* owners in common. In Williams vs Harrell, 132 La., 1 it was decided that

"a co-owner who purchases property held in common at a, sal* for taxes acquires no greater interest in the property than he held before, *xc*pt that he has a claim against •his‘co-owners for reimbursement for taxes and expenses paid by him",

quoting numerous authorities.

V. Defendant cannot recover for improvements on th* land.

"It is well settled that a co-proprictor cannot erect improvements on th# common property and compel th* other joint owner to contribute to pay for thr same, without the consent of the latter". 26 A., 255; 23 A., 502; 43 A., 867.

It is otherwise as to taxes paid by the co-proprietor.

It is therefore ordered that the judgment of the District Court herein be reversed and amended; and it is now ordered that there be judgment in favor of the plaintiff and against the defendant annulling and setting aside the sale made by the Sheriff to the defendant, Idhn D. Abadie, of the undivided half of a portion of the Ida Plantation more fully described in the act of sale dated August 26th, 1915 for the taxes of 1914 assessed in the name of Joseph Tomsany, registered on September 3d, 1915, and that the inscription ^hereof in Book 36 p 605 be cancelled; ¿Wv*'

It is further ordered that this judgment shall take effect only after the plaintiff herein shall ha-* reimbursed the defendant herein the price of/vsale and all taxes and costs paid with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments as provided by the constitution;

It is further ordered that in other respects the recon-V fln a 1 rl ee vi <-? <r> v-i + r\ A we i eof e/^

Judgwiant ravarsad and ámandad,

April 19th, 1920.  