
    Ruth Evelyn VENTRESS v. Mrs. Rose Garret THOMAS, wife of Clarence Thomas, et al.
    No. 20622.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    On Rehearing Dec. 10, 1956.
    Rehearing Denied Jan. 2, 1957.
    Writ of Certiorari Denied March 1, 1957.
    Michael H. Bagot, McGiehan & Phillips, New Orleans, for plaintiff-appellee.
    Charles E. de la Vergne and George E. Konrad, New Orleans, for defendants-appellants.
   JANVIER, Judge.

This is a suit to quiet a tax title. It is brought under authority of Act 277 of 1952 which amends section 2228.1 of Title 47, Chapter 5 of the LSA-Revised Statutes.

The property is unimproved and unfenced and is described as follows:

“A certain portion of ground situated in the Seventh Ward, Third Municipal District, City of New Orleans, designated as Square 1180, Lot 14, bounded by New Orleans, London, Miro and Tonti Streets and measuring thirty feet (30') on North Miro Street by a depth and front on New Orleans Street of 116 feet.
“Being the same property acquired by Chris R. Valley from the City of New Orleans for Tax Sale for the year 1930, assessed in the name of Hypolite Paul, as per act passed before Jacob H. Morrison, Notary Public, dated November 29th, 1949, and registered in COB 567, Folio 666.”

On April 19, 1934, it was adjudicated to the City of New Orleans for nonpayment of City taxes for the year 1930. In November, 1949, the property was offered for sale at public auction by the City of New Orleans. In the advertisement which was made once a week for four weeks, it was stated that it was offered for sale in accordance with the provisions of Act 112 of 1938, LSA-R.S. 33:2861 et seq. At the sale the highest bidder was Chris R. Valley, and on November 29, 1949, by act before Jacob Morrison, notary public, the adjudication to Valley was confirmed. That act was registered in C.O.B. 567, Folio 666, on December 6, 1949.

In the act which was passed before Morrison it was stated that the sale to Valley had been made under authority of “Louisiana Revised Statutes No. 47, Sec. 2180-’85,” the source of which is Act 170 of 1898.

The tax debtor at the time of the accrual of the taxes and at the time of the adjudication to the City was Hypolite Paul.

On July 11th, 1951, by act before Joseph V. Bologna, notary public, Chris R. Valley, to whom the property had been transferred by the City, transferred the property to Miss Ruth Evelyn Ventress, who is the present plaintiff. The defendants, it is conceded, acquired any rights which they may have, if any, as heirs or assigns of the said Hypolite Paul.

To this suit to quiet title defendants filed exceptions of no cause of action, basing their exceptions on the contention that since the property had been sold by the City to Chris R. Valley expressly under the authority of LSA-R.S. 47:2180-85, the said Valley in fact acquired no title to the property, since that statute had no application to such a sale. Thereupon Jacob Morrison, the notary public who had passed the act of sale from the City of New Orleans to Valley, passed a notarial act of correction reciting that whereas in the act of November 29, 1949, it was stated that the sale to Valley had been made under authority of LSA-R.S. 47 :- 2180-85, it had in fact not been made under authority of that section of the Revised Statutes, but had been made in accordance with the provisions of Act 112 of 1938.

Counsel for defendants, still relying on the exception of no cause of action, then asserted that the transfer by the City of New Orleans to Valley could not have been made under authority of Act 112 of 1938, since that statute has application only to sales made by municipalities other than the City of New Orleans, such sales made by the City of New Orleans being controlled by the special statute, Act 155 of 1894, LSA-R.S. 47:2191.

This contention is based on the decision of our Supreme Court in State ex rel. Warren Realty Co., Inc., v. City of New Orleans, 226 La. 297, 76 So.2d 308, in which the Court considered the Act No. 112 of 1938, which appears as LSA-R.S. 33:2861-76, and said that that section of the Revised Statutes has no application to a sale by the City of New Orleans since that is a general statute and since there is a special statute, Act 155 of 1894, LSA-R.S. 47:2191, which controls such sales by the City of New Orleans.

There is no doubt that that is exactly what was decided by the Supreme Court in the Warren Realty Co. case. The Court however also said that, regardless of the statute under which the sale was purported to have been made, if, as a matter of fact, the method of procedure had been in accordance with the proper statute, the sale would have been valid. But the Court said that since, in the record then before it, it did not have sufficient facts to determine whether the proper method had been followed, the matter should be remanded to the District Court in order that such evidence as might be available might be presented.

In the case at bar it can be determined from the record which is before us that the requirements of the statute of 1894 were not complied with, for the reason that that statute requires an advertisement for thirty days, whereas the sale at which Valley was the successful bidder was made after an advertisement once each week for four weeks.

Plaintiff seeks to overcome the effect of the decision of the Supreme Court in two ways: First, counsel say that the Act of 1894 has been expressly repealed. This is made evident by reference to section 1, Act 626 of 1952, p. 1431, which now appears as section 2191, Title 47. LSA-R.S. And, second, it is said that whether or not the original sale was valid no longer may such invalidity be relied on by the defendants, since registration of the sale to Valley was made more than five years before the filing of the suit to quiet title and since, during that period of more than five years, none of the defendants was in possession of the property in question. The contention of plaintiff on this point is that, because' of the effect of LSA-R.S. 47:2228.1, when there is a suit to quiet a tax title and more than five years have elapsed since the registration of the deed and the original owner or his heirs or assigns have not been in possession of the property during the five years, there are only two defenses which may be made: (1) that the taxes for which the property was adjudicated were paid, and (2) that there has been a redemption of the property subsequent to the ad-, judication.

The decision of the Supreme Court in the Warren Realty Company case plainly holds that such a procedure as was followed here is not the correct procedure. But it should be noted that that was not a suit to quiet title brought under the special statute, LSA-R.S. 47:2228.1. That was a mandamus proceeding which the adjudicatee brought to compel the City “to deliver to it a deed * * *•” The Court held that the sale was not controlled by the act under which it was purported to be governed and that the City could not be compelled to deliver title under that statute. But the question before us is not whether the sale to Valley was controlled by the Act of 1894 or by the Act of 1938, but whether, because of the effect of the statute authorizing suits to quiet title, it may be contended by defendants that the sale to Valley was not made under the proper statute.

Counsel for plaintiff argue that the sale by the City to Valley was properly made in accordance with the provisions of Act 112 of 1938. They say that this is true in spite of the decision of the .Supreme Court in the Warren Realty Company case, and they direct attention to the fact that in the opinion in that case it was stated that the Act of 1894 “appears never to have been repealed or superseded.” Counsel say that, as a matter of fact, that act, LSA-R.S. 47:2191, was expressly repealed by Act 626 of 1952 and that, if the repeal had been called to the attention of the Supreme Court no doubt the Court would have held that, since that special statute of 1894 had been repealed, the general statute of 1938 would have controlled such sale.

We cannot accept that argument. What the Supreme Court meant was that, at the time of the sale by the City in the Warren Realty Co. case, the statute of 1894 was still effective, that at that time it had not been repealed or superseded; that the repeal later could not be given retroactive effect. That may also be said here. The sale here was in 1949 and the repeal of the statute of 1894 came only in 1952.

However, the other contention of plaintiff is sound. The defense that the sale by the City to Valley was made under the wrong statute is no longer available to defendants. More than five years elapsed between the registration of the deed to Valley and the filing of his suit to quiet title, and during that period none of the defendants was in possession of the property. Paragraph E of Act 277 of 1952, as we have already stated, provides that in such situation there are only two defenses available to the original owner or his heirs or assigns — payment of taxes for which it was adjudicated or redemption since adjudication. See Doll v. Mallard, La.App., 77 So.2d 39, and Bauswell v. Favret, La.App., 78 So.2d 213.

Our conclusion is that plaintiff is entitled to the quieting of her title and accordingly the judgment appealed from is affirmed.

Affirmed.

McBRIDE, J., takes no part.

On Rehearing

REGAN, Judge.

We granted a rehearing in this matter to consider the validity of our original decree rendered on April 23, 1956, in view of the recent and contemporary decision rendered by the Supreme Court in the case entitled Warren Realty Co., Inc., v. Silbey, 1956, 229 La. 456, 86 So.2d 101.

We related in our original opinion that this suit was instituted by plaintiff, Ruth E. Ventress, to quiet a tax title as authorized by Act 277 of 1952, which amends LSA-R.S. 47:2228.1. This unimproved lot of ground is located in the City of New Orleans in Square 1180, Lot 14, bounded by New Orleans, London, Miro and Tonti Streets. ■

On April 19, 1934, this property was adjudicated to the City of New Orleans for non-payment of taxes for the year of 1930. In November of 1949, the city offered it for sale at public auction through the medium of an advertisement which appeared in the local newspapers once each week for four weeks, and it was written therein that the property was offered for sale in accordance with the provisions of Act 112 of 1938, LSA-R.S. 33:2861 et seq.

The successful bidder at the sale was Chris R. Valley and, on November 29, 1949, by act passed before Jacob Morrison, Notary Public, the adjudication to Valley was confirmed.

The foregoing act before Morrison, Notary Public, set forth that the sale had been executed pursuant to “Louisiana Revised Statutes No. 47, Sec. 2180-85,” the source of which is Act 170 of 1898.

The tax debtor or record owner of the property at the time of the accrual of the taxes and when the adjudication to the city occurred was Hypolite Paul.

On July 11,, 1951, Chris Valley sold the property to Ruth Evelyn Ventress, the plaintiff herein, as per act of Joseph V. Bologna, Notary Public.

It is conceded that if the defendants herein have any interest in the property it was acquired as heirs or assignees of Hypolite Paul.

Defendants pleaded the exceptions of “no cause or right of action” to this suit to quiet title, predicating these exceptions upon the premise that since the property had been sold by the city to Chris Valley in accordance with LSA-R.S. 47:2180 to 47:-2185, Act 170 of 1898, Valley acquired no title to the property because that statute was not applicable to the sale of property located in the City of New Orleans. These exceptions were overruled.

Thereupon Jacob Morrison, the Notary Public, who had passed the act of sale from the city to Valley, then prepared an Act of Correction reciting that whereas in the act of sale dated November 29, 1949, it was inadvertently stated that the sale to Valley had been made in conformity with LSA-R.S. 47:2180 to 47:2185, Act 170 of 1898, it was actually the intent of the city to recite therein that the adjudication and sale of the property to Valley had been made pursuant to LSA-R.S. 33:2861 et seq., Act 112 of 1938.

Counsel for defendants were not deterred by this act of correction, and they, therefore, persisted in relying on the exceptions of “no right or cause of action” and asserted that the transfer by the city to Valley could not have been made according to LSA-R.S. 33:2861 et seq., Act 112 of 1938, since that statute was limited in its scope to sales made by municipalities other than the City of New Orleans — that sales executed by the City of New Orleans are governed by a special statute designated as LSA-R.S. 47:2191, Act 155 of 1894. Counsel initially cited in support of this contention Warren Realty Co., Inc. v. City of New Orleans, 226 La. 297, 76 So.2d 308 and now, to substantiate their initial contention point to the relatively recent case of Warren Realty Company, Inc., v. Silbey, supra. The ratio decidendi of these cases is that LSA-R.S. 33:2861 et seq., Act 112 of 1938, is not applicable to a sale of property executed by the City of New Orleans, since it is a general statute, but the special statute LSA-R.S. 47:2191, Act 155 of 1894, is the applicable statute which encompasses sales executed by the City of New Orleans.

Plaintiff, on the other hand, maintains that where there exists a suit to quiet a tax title and more than five years has elapsed since the registration of the deed and the original owner or his heirs and assignees have not been in possession of the property during the period of five years, there are only two defenses which may be made— (1) that the taxes for which the property was adjudicated were paid, and (2) that there has been a redemption of the property-subsequent to the adjudication and cites in support thereof LSA-R.S. 47:2228.1, which reads in part as follows:

“If the suit to quiet title is filed more than five years after the date of registration of the deed of the adjudication to the state or any political subdivision thereof, for non-payment of taxes, in the conveyance records of the parish in which the property is located, and more than five years since the record owner or his heirs or assigns or heirs of said assigns as aforesaid have had physical possession of said property, the only defense available to the defendant shall be proof by him of the payment of the taxes for which the property was adjudicated to the state or any political subdivision thereof prior to the date of said adjudication or redemption subsequent to said adjudication. In all cases there shall be a prima facie presumption that the defendant has not •had physical possession of the said property from the date of the registra•tion'in the conveyance records of the deed to the state or any political subdivision as aforesaid.” (Italics ours.)

It is our opinion that an analysis of LSA-R.S. 47:2228.1, Act 277 of 1952, indicates that plaintiff’s counsel -has put this statute on the legal anvil and hammered it into an unexpected shape. It does not, as plaintiff contends, establish the validity of the sale or of the title which the assignee of the adjudicatee from the City of New Orleans is seeking to overcome. The two defenses as enumerated in the act quoted hereinabove, which might be urged in a suit such as the act contemplates, are the only ones which might be specifically pleaded by the defendants in a suit involving the validity of the original tax adjudication from Hypolite Paul in favor of the City of New Orleans. However, the defendants, in persistently urging their exceptions herein, are not endeavoring to invalidate nor even question the original tax adjudication from Hypolite Paul to the City of New Orleans, because, as we have said above, the defenses in such a case are limited by the statute, but, in contradistinction, they have aimed their legal weapons at the validity of the title acquired under the wrong statute by the present plaintiff, the assignee of the adjudicatee from the City of New Orleans.

The exceptions of “no right or cause of action” are, therefore, predicated upon the fact that plaintiff’s questionable title exists as a result of the adjudication from the City of New Orleans to Valley, executed wrongfully pursuant to the provisions of LSA-R.S. 33:2861 et seq., Act 112 of 1938, and not the provisions of LSA-R.S. 47 :- 2191, Act 155 of 1894, which would have been correct, and, as such, is void ab initio by virtue of the rationale emanating from Warren Realty Co., Inc., v. City of New Orleans, supra and Warren Realty Company, Inc., v. Silbey, supra.

In the latter case the organ of the Court very pertinently remarked [229 La. 456, 86 So.2d 102]:

“In alleging herein that it became the owner of the property at the auction held pursuant to the provisions of Act 112 of 1938, instead of setting forth that the sale was made in conformity with the appropriate statute, Act 155 of 1894, plaintiff’s petition fails to state a cause of action. As we indicated in the earlier case [Warren Realty Company, Inc., v. City of New Orleans, 226 La. 297, 76 So.2d 308], the provisions of the two statutes differ in several material respects; and an examination of them clearly shows that an adjudication in compliance with the provisions of the 1938 act is not necessarily one in keeping with the requirements of the 1894 statute.
“ * * * we think it proper, in the interest of orderly procedure, to affirm the trial court’s ruling which sus-tamed the exception of no cause of action and dismissed the suit.”

For the reasons assigned our original decree is recalled and set aside and it is now ordered that the judgment appealed from be annulled, avoided and reversed and that there now be judgment herein in favor of the defendants maintaining the exception of no cause of action and dismissing plaintiff’s suit at her cost.

Original decree recalled and set aside; judgment appealed from reversed,

McBRIDE, J., concurs. 
      
      . Repealed by Act 626 of 1962, but still in effect in 1949 when the sale under consideration here was made.
     
      
      . Ruth Evelyn Yentress.
     
      
      . Chris R. Valley.
     