
    No. 11,792.
    F. L. Blood et al. vs. Domingo Negrotto, Jr.
    The ease o£ Remick vs. Lang, ante, page 911, affirmed.
    
      Breaux, J., dissenting—The former owner having been divested of title, he was no longer concerned about the payment of taxes assumed by the purchaser at the tax sale. It was a matter in which the State alone had an interest, and only to the extent of the payment of the taxes assumed.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.
    
    
      Frank L. Richardson and Fernán & Wall 
      
       for Plaintiffs, Appellees.
    
      Farrar, Jonas & Fruttschnitt and J. Zach. Spearing for Defendant, Appellant:
    I.
    In view of the opinion of this court in Remick vs. Lang, we do not discuss the character of this action.
    II.
    The want of notice, pleaded as a ground of nullity of the tax title herein, is notice of the sale under Act 82 of 1884.
    No want of notice of the sale to the State is either alleged or proved.
    Plaintiff has no interest in attacking the sale under Act 82 of 1884. Breaux vs. Negrotto, 43 An. 432.
    III.
    .(a) All rights of redemption by the original owners of the property described in the petition were gone one year after the adjudication to the State. Remick vs. Lang seems to admit this. .'See Sec. 62 of Act 80 of 1888. See all tax laws since 1879. 'See Art. 210, Constitution of Louisiana.
    (6) After that year the original owner is as much a stranger to the title as any other citizen.
    
      IV.
    
      (а) The State being the absolute owner, in perfect ownership, of the property in dispute, sold it to Lake, who acquired a title perfect against all the world, and by this court specially declared to be perfect against the former owner. The title so acquired was one in fee simple, for a fixed price in cash, upon payment whereof he was entitled to a deed and to possession, subject, however to and with the promise on his part, to pay all taxes for 1880 and subsequent years. See Act 82 of 1884.
    Jurisprudence reviewed to prove foregoing proposition: State ex rel. Martinez vs. Tax Collector and City, 42 An. 677, et seq.; Breaux vs. Negrotto, 48 An. 427; State ex rel. Powers vs. Recorder of Mortgages, 45 An. 566; Reinach vs. Duplantier, 46 An. 161.
    (б) No time is fixed by law for the payment of the taxes of 1880 and subsequent years. Lake and those holding under him are therefore still entitled to make the payment as no putting in default has ever taken place. By payment the heirs of Blood may have been subrogated to the rights of the State to demand such payment. Great er rights they certainly did not acquire.
    (c) Upon the failure of Lake, or those holding under him, to pay the portion of the price payable in futuro, the State had ample remedies, to-wit:
    1. To collect her taxes, as she was doing in the Martinez case when she was enjoined, and as this court said she had a right to do; or •
    2. To rescind the sale for non-payment of price.
    (d) Neither of these rights has in any manner whatever passed to plaintiffs, nor are they trying to assert either of these rights.
    (e) Plaintiffs are strangers to the title, and trespassers.
    V.
    If the State remains the owner only to collect the taxes due; if the tax sale under Act 82 of 1884 is conclusive as against the former owner, as soon as the adjudication is completed and becomes equally conclusive as against the State as soon as the purchaser pays the taxes for 1'880 and subsequent years, all of which is held in Martinez case, then we submit that:
    Redemption does not create a new title; its only-effect is to remove the tax sale as an encumbrance or cloud on an otherwise clear title; it does not necessarily enure to the benefit of the party paying the money, but to the benefit of a pre-existing title.
    
      Hence, if Negrotto had a title against all the world except the State prior to the redemption from the taxes of 1880 and subsequent years, then plaintiffs by redeeming as to those taxes have perfected his title, if it needed perfecting. Oooley on Taxation, p. 368, par. 8; Black on Tax Titles, p. 252, Sec. 197; Gray vs. Ooan, 30 Iowa, 536; Gray vs. Ooan, 40 Iowa, 330; Cooper vs. Bushley, 72 Penn. Stat. 252.
    Argued and submitted, April 15, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

Miller, J.

This case is not distinguishable fromRemick vs. Lang, recently decided, Ante, p. 914.

For the reasons given in that case it is ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.

Dissenting Opinion.

Breaux, J.

The purchaser, as required by Act 82 of 1884, assumed the taxes for 1880 and subsequent years.

He paid the taxes for which the property was sold and acquired an absolute right to the property.

The taxes assumed were not paid owing to some difference between the purchaser and the State tax collector regarding certain costs and charges.

The defendants (the purchasers at tax sale), were never placed in default, and the law fixed no time within which these taxes were to be paid.

The regularity of the adjudication to the State for the taxes is not questioned; legal advertisement was made and due notice given.

This being the case, the failure to pay the taxes assumed is not cause of itself of nullity of the tax title under which defendants hold possession.

The former owner had been by the proceedings regular in all respects divested of all interest in or title to the property.

He was no longer concerned about the payment of taxes assumed. It was a matter in which the State alone had an interest, and only to the extent of the payment of the taxes assumed.

Nevertheless, the former owner, who is now a third person, instituted this action to recover property he no longer owns. The action was not instituted to recover any, right of his own for he could have none, the time to redeem having long since elapsed; but to be decreed the owner because he had not paid the State taxes assumed in accordance with the terms of the act under which he bought.

In the Martinez case, 42 An. 777, it was decided that payment must be paid to the State for the taxes assumed. The question came up directly as to whether the purchaser should pay. It was not decided that the delay in matter of these taxes assumed had the effect of annulling a regular tax deed.

The State, through its collecting officers, had a right to recover her taxes, and to that right the court gave full recognition, not by applying the remedy never contemplated by law of absolute nullity to inure to the benefit of one no longer having any interest, but by ordering the sale of property for the payment of the taxes assumed.

Long after the time to redeem had elapsed, and therefore without any authority whatever, a certificate of redemption was issued to the defendants.

This redemption created no right and gave no title. No possible right to redeem exists after the lapse of the time fixed by statute. The auditor is absolutely without authority to issue a redemption certificate after one year.  