
    No. 10,571.
    Joseph P. Martinez and the State ex rel. J. P. Martinez vs. State Tax Collectors, etc., and City of New Orleans.
    Where property was adjudicated to the State under Act 96 of 1882, and afterward sold under Act 82 of 1884, the purchaser acquires title only when he pays the taxes due on said property and which he assumed. Until these conditions are complied with title remains in the State. The property, therefore, is liable to be seized and sold under Act 80 of 1888.
    Article 210 of the Constitution was not intended as a prohibition against the State purchasing at tax sales. It was intended to abolish the system of forfeiture for non-payment of taxes, in force before the adoption of said Constitution.
    Act 96 of 1888 is not in conflict with Article 210 of the Constitution.
    An adjudication of property to the State is not a forfeiture within the meaning of Article 210 of the Constitution.
    When a purchaser at a tax sale, in pursuance of Act 82 of 1884, assumes the payment of taxes in accordance with said act, he can not evade his obligations by contesting the validity of the assessment.
    When property has been adjudicated to the State, she can again sell the same, and impose her own conditions without restriction as to the price. When adjudicated at tax sale, she can, as a part of the price, stipulate that the purchaser shall pay all prior taxes due thereon. When sold in this manner, no plea of prescription can be urged against the taxes assumed by the purchaser.
    
      PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    
    
      Harry L. Edwards and Jos. H. & J. Zaeh. Spearing for Plaintiff and Appellant: ' "
    1. The State having, in 1886 and 1887, sold certain property to Martinez, subsequent to an “adjudication” to herself, and having parted with all title and possession therein, to him, can not be heard or tolerated, in July and August, 1S89, as advertising and offering the same property for sale as her property (when in fact it was not) to others, under Act No. 80 of 1888, for the taxes of 1880 to 1884, as she had long since parted with her title, and the property was not adjudicated property. It is a mistake of her remedy, and of the law she should proceed under.
    2. The property having been the property of the State at the time of the sale to Martinez in 1886 and 1887, he took the said property free of all taxes up to the dates of his deeds, said taxes becoming extinct by confusion. She could have no tax, lien or assessment on or against her own property. It. S. 8233; 30 An. 432; Desty on Taxation, Vol. II, pp. 842, 784.
    3. An adjudication of property to the State, and a forfeiture of property to the State, are one and the same thing, and being forbidden by Article 210 of Constitution of 1879, which prohibits the forfeiture of property for the non-payment , of taxes, Section 52 of Act 96 of 1882, and Act 80 of 1888, which provides for the “adjudication” or forfeiture of property to the State, is unconstitutional Desty on Taxation, Vol. II, p. (783; 2_Bradw. 642; 18 S. C. 538; 15 Ohio 134; 8 Ohio 189; 2 Hawks 17.
    4. Tax liens and inscriptions, State and city, are prescribed by three and five years under the respective statutes.
    In the Stuart case, 41 An. 127, it was decided that Act 96 of 1877 applied to the city in the assessment and collection of taxes.
    That being the ease, Act 96 of 1877 having been repealed, if not by the Constitution of 1879, was certainly repealed by Act No. 98, Section 95, of 1886, and it is well settled that the repeal of a statute under which taxes are levied puts an end to the right to collect them. Desty on Taxation, Vol. II, p. 735; 77 Ind. 816; 2 Ind. 149; 22 Ind. 1.
    
      Felix P.’Poohé on same side,' on Application for Rehearing.
    
      W. B. Sommerville, Assistant Oity Attorney, and Garleton Hunt, City Attorney, for Defendants and Appellees:
    An assumption to pay taxes due by a third person is a valid contract which can be enforced, and a proceeding to collect them in the name of the original tax debtor is notice to all parties concerned. 41 An. 127.
   The opinion of the conrt was delivered by

McEnbby, J.

Under the provisions of Act 80 of 1888 the Tax Collector of the Second, Third and Fifth Districts in the parish of Orleans seized and advertised for sale certain immovable properties of the plaintiff and relator, described in his petition, for taxes due thereon, and which were assumed by him.

The plaintiff purchased the properties at tax sales made in pursuance of Act 82 of 1884. He enjoined the Tax Collector from proceeding with the sale of said property.

There was judgment dissolving the injunction withont damages, from which the plaintiff appealed.

There were several exceptions taken to the rulings of the District Judge in the admission of evidence. The objections in each case went only to its effect.

The reasons assigned for the writ of injunction are numerous. We will examine those that are serious:

1. The plaintiff alleges that the taxes, tax licenses, privileges and mortgages are prescribed by three and five years. There is no ground for the plea of prescription. The plaintiff assumed the taxes due on the property. They were a part of the purchase price. If any prescription attaches, is that of ten years.

2. Act 80 of 1888 is attacked as being in conflict with Article 210 of the Constitution. The reason for the unconstitutionality of the act is that the adjudication of property to the State is equivalent to its forfeiture, which is prohibited by said article.

The most conclusive answer to this proposition is the article itself. There is in the Constitution no prohibition on the State to purchase property, either at private, public or tax sale. The object of the Article 210 was to prevent the State from acquiring property for taxes by forfeiture. It changed the mode of enforcing the collection of taxes and provided for a direct seizure, without suit. The State is not prohibited from purchasing at tax sales in pursuance of said article.

• 8. It is urged by plaintiff that the adjudication to the State in pursuance of Act 96 of 1882, extinguished the taxes on said property by confusion, and that when the property was adjudicated to him under Act 82 of 1884, he acquired said property free from all taxes and tax incumbrances. 'Conceding that the taxes were extinguished by confusion when the State in the absence of bidders purchased the property.at the sale under Act 96 of 1882, no' reasons are urged, or can be urged, why the State, being the owner of the property, could not sell the same and fix the price and impose such conditions on the sale as she deemed fit and proper. There is no restriction that can be placed upon the conditions which she may impose upon the sale of her property.

In Act 82 of 1884, the State fixed the price of the property which had been adjudicated to her under Act 96of 1882. The price fixed by said act for said property was the extinction, by cash payment, of State, city, parish and municipal taxes due prior to December 31, 1879, with interest, costs and charges, and the assumption of all unpaid taxes subsequent to the 31st of December, 1879. The plaintiff bid in the property and agreed to pay this price as fixed by said act. We fail to perceive in what manner the Act No. 80 of 1888 conflicts with the Constitution of the State.

4. The plaintiff alleges that the taxes are illegal, null and void, as they were not assessed in the name of the owner.

Section 52 of Act 77 of 1880 is still in force, never having been repealed by subsequent revenue acts. Under this act the assessments were unaffected by the alienation of the property. The plaintiff is estopped from contesting the validity of the assessments. He assumed the payment of the taxes in the name of the person to whom the property was assessed. He purchased under these assessments. . He can not claim to be owner of the property and repudiate the title under which he claims.

5. The plaintiff alleges that the seizure and advertisement under Act 80 of 1888 is illegal, null and void, on the grounds that said act does not apply to property adjudicated to the State and afterward sold in pursuance of Act 82 of 1884. Where the parties who purchased property under said act complied with their bid, it undoubtedly has no application to the property so purchased. They obtained an absolute and perfect title as against the State. Act 82 of 1884 required the Tax Collector to sell the property adjudicated to the State with the assumption on the part of the purchaser of the taxes due. subsequent to 1879. The price of the adjudication was the taxes paid to 1879 and the taxes due on the property thereafter. No other interpretation can be given to the act. The sale was to be made for cash. The object of the act was to remake the taxes due on the property. It was not the intention of the Legislature that there should be a credit sale for any portion of the price, as no time is stated in which the credit portion is to be paid, and there is no mode provided for the enforcement of its payment. The Tax Collector had no authority to make an absolute deed to said property until the terms and conditions prescribed by Act 82 of 1884 had been complied with. The deeds to the plaintiff are only proceses verbal of the adjudication. No title passed to the plaintiff, or could do so until he paid the price of the adjudication. The title to the property therefore remained in the State, and the Act 80 of 1888 applies to all property adjudicated to the State which had not been disposed of or redeemed.

The plaintiff can only acquire title to the property adjudicated to him by complying with the terms and conditions of Act 82 of 1884.

The plaintiff enjoined the sale of property to which he had no. title. He knew that he had not complied with his bid. It was an attempt to get title to property without paying the price. We think this is a case in which damages should be assessed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow 10 per cent, as special damages for attorneys1 fees, and in all other respects it be affirmed.

Breaux, J., not having heard the argument, and the case having been submitted before he became judge, takes no part in this decision.

On Application for a Rehearing.

BreauX, J.

Plaintiff for a rehearing has reduced his grounds to^ three, in as many paragraphs. We paraphrase them as follows, viz:

1. That he can not be made to pay the taxes due on the property assessed prior to the 31st day of December, 1879.

The price paid by him operated as final discharge of all taxes due on the property prior to that date.

The inscriptions for taxes due to that date were canceled by 'the sale.

2. That there is error in holding that the validity and the legal effect of' the assessment which is the basis of the taxes sought to be enforced should be tested under the provisions of Section 52 of Act 77 of 1880.

That there was no warrant for the sale made to plaintiff but the Act 82 of 1884, etc.

3. He alleges further that his bid made Mm the absolute owner of' the property.

He took the property burdened with the taxes due since the 31st-December, 1879, but that he was not bound to pay at the date of purchase, his contract being to assume and take the property subject to all unpaid taxes on the “same, subsequent to December 31, 1879.

That he acquired a perfect title, and such ‘ taxes as may be against him under his contract form part of the unpaid purchase price for which the State has a vendor’s lien on the property, which may be enforced, as such, but not summarily as taxes, and above all, under the provisions of Act 86 of 1888, which apply exclusively to •property adjudicated to and not otherwise disposed of by the State.”

That the property having been disposed of can not be sold under the law authorizing the sales of property adjudicated to the State for taxes.

1. The first ground is at once disposed of without discussion, for it does not admit of any.

Without changing the conclusions of this court or the decree heretofore made, we will state that the defendant claims taxes from December 31, 1879, and that under the plain letter of Act 82 of 1884, the taxes from December 31, 1879, are due by the plaintiff and not the taxes assessed, prior to that date, as plaintiff alleges and apprehends.

2. Whether or not the legal effect of the assessment upon which rests the authority to enforce the payment of taxes should be tested under the provisions of Section 52 of Act 77 of 1880, has no important bearing.

The plaintiff bought the property as assessed. He can not successfully question its legality.

The State, to collect the taxes due, divested the tax debtors of their ownership of this property and has given to plaintiff the opportunity to become the owner, of which he availed'himself.

He does not contend that this assessment is not sufficiently legal to enable him to hold the property as against the former owners.

He does not allege that he fears eviction and that he will be made to loose the property on account of any illegality.

If a vendor seeking to realize a balance unpaid of the purchase price is opposed with the objection that there is a defect in the title, but no allegation is made to the effect that the defect will give rise to any claim, the vendee will, not be permitted to defeat the vendor’s claim and privilege on technical grounds serving no purpose but pleaded only to escape payment.

The illegality,, per se, is of no moment if a right is not asserted against the title.

If no right is claimed there can not be any issue.

The former owners having no claim on that ground, 'it not being permitted for the State to set up any, predicated upon an illegal assessment, and as the present plaintiff contends that he' is the legal owner, questions with reference to illegal assessment can not arise.

8. The third ground contains the proposition upon which plaintiff relies to be relieved from the payment of the taxes he has assumed to pay.

He is the owner, is the burden of his pleadings, but suggests that he owns subject to a vendor’s lien.

When the property was adjudicated to him he assumed the taxes assessed since 1879.

The “purchaser shall, however, assume and promise to pay, and shall take said property subject to all unpaid taxes.” Act 82 of 1884.

He is now pleased to contend that he should be decreed to be the owner of the property, and that the remaining price unpaid is secured by a lien.

As a man binds himself so must he be bound is a principle from which he seeks to be relieved, by contending that he owes an amount which is secured by a lien..

We do not deny that the remainder is the unpaid purchase price, but none the less, taxes which the purchaser assumed and which are secured as to their payment, as taxes are secured under the provisions of law.

We will not undertake to change a tax indebtedness to a nondescript claim and an uncertain privilege, such as plaintiff would allow.

Taxes are positive acts of the government. They are not a debt. Desty, p. 9.

Properties were adjudicated to the State. The only purpose of the ownership was to secure the payment of the taxes.

In adjudicating the property to the plaintiff the State can not be held to have defeated the object in view; to have abandoned the purpose of the divestiture of title; (i. e., the collection of taxes) and to have relinquished any remedy for their collection.

“ The taxing power is inherent in every sovereignty, and there can-' be no presumption in favor of its relinquishmenr, surrender or abandonment.” Desty, p. 79.

The whole community is interested in retaining the power of taxation undiminished, and it has a right to insist that no abandonment shall be presumed in any case where the deliberate purpose does not appear.

It is never presumed to be relinquished, unless the intention to. relinquish is declared in clear and unambiguous terms.

“It cannot be presumed to be abandoned, surrendered, except by clear words and for legal and adequate consideration.” Ib.

The plaintiff can not successfully assume the attitude of an adjudieatee, and the rights of perfect ownership, without having complied with all the terms of his bid.

Much less can he, by thus assuming, defeat the State in the collection of taxes, and in carrying out the policy that ■ the ‘ ‘ common burden must be sustained by common contributions.”

There is no difference in reality about the liability; the question relates particularly to the remedy to enforce payment.

It is objected that collection can not be made by execution, and in accordance with the summary process provided for the collection of taxes.

“ The power to assess and collect taxes implies the power to enforce their collection by execution.” Desty, p. 82.

“But where the language will permit, statutes relating to taxes shall be so construed as to give effect to the obvious intention and meaning of the Legislature rather than to defeat that interest by a too strict adherence to the letter.” Ib.

“ The sovereign right to levy and collect taxes grows out of the paramount necessity of the government, an urgent necessity which admits no property in the citizen while it remains unsatisfied.” Ib., p. 51.

The taxes are due on the property. .

The Constitution and all other laws on the subject provide a summary process for their collection.

Let us suppose that the portion paid of the purchase price had not been paid, the State would have the right to have the property-seized and sold under the summary tax collecting process.

If this would he true of the amount paid, if it had not been paid, it is correct interpretation as to the amount assessed.

The State remains the owner only to carry out the intention of the Legislature, and to collect the taxes due.

We are referred to the cases in re Orloff Lake, 40 An. 148, and of in re Douglas, 41 An. 768, as decisive authorities in this case.

For the sake of some brevity, we make a summary of the issues in the first.

Nullity is pleaded. Insufficiency and illegality of .the assessment. Want of notice.

Act 82 of 1884 is unconstitutional.

The property never was adjudicated to the State. It was advertised for sale to enforce the payment of delinquent taxes, but contrary to the provisions of said act, as it only provides for the sale of property that had been previously adjudicated to the State. On the part of defendant, the plea of no cause of action was filed. Among the defences interposed is the following:

5. “That all of the prerequisites of the law were complied with by all the officers from the assessment up to and including the execution and registry of the deed of said purchaser.

“If only a portion of the taxes for which the property is sold are proved to have been paid, the sale and title to the purchaser shall nevertheless be good and valid the same as if all the taxes for whiph it is sold had not been paid.

“The court held as follows, viz: ‘We think the law is constitutional, and the exception of no cause of action should have been ■sustained.’ ”

In this case, as well as the case in re Douglas, it is decided that the tax sale under Act 82 of 1884 is conclusive as against the former ■owner, hut the right of the State to recover the unpaid taxes was not considered. No such issue was presented, and therefore these cases have not the authoritative bearing the plaintiff is pleased to contend they have.

The tax has remained unpaid these many years. The ordinary process has not brought about a settlement.

A warrant to enforce compliance or a sale is legal.

Should he comply with the law, the sale as between the State and the plaintiff will become as absolute as it is now between the plaintiff and the former owner.

Rehearing refused.  