
    No. 8505.
    Edgar Davenport et al. vs. N. King Knox et al.
    A radical defect in tlie assessment, as where the property lias not been assessed, in the name of the true owner, is such a nullity that it cannot be cured by prescription. The purchaser under such a title, who has been evicted, is entitled to be reimbursed the value of his improvements and the taxes paid thereon, not including penalties and costs.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.
    
      G. I>. Favrot and Herron & Beale, for Plaintiffs and Appellants:
    Property assessed to Heirs of Engleliarfc cannot he the basis of judgment against the Heirs of John Davenport, to whom the assessed property belongs. 28 An. 17; 10 An. 771.
    A tax sale is illegal when the tax is levied on more prox>erty than is actually owned- An assessment on 500 acres being §1500, on 404 acres would only be §1212.
    A sale by collector made in June, 1875, is null and void. 32 An. 228; 30 An. 817.
    A confirmation of sale made by the Auditor in July, 1875, is a nullity for same reason.
    Owners of property are entitled to notice- A tax sale not recorded is not notice to them. A tax sale without notice, without previous seizure, and without being advertised three times during ten days, is fatally defective.
    The prescription of five years will not cure such nullities.
    The prescription of five years runs from the recording of the Auditor’s deed, not from the date of the tax sale.
    Prescription of five years, under Act oí 1855, cannot apply to a tax sale made by the tax collector. Such sale does not pass title, but only gives a right dependent on future contingencies.
    A tax salo, under Act 47 of 1873, nob followed by an order of possession, taken contradictorily with former owner, cannot form the basis of prescription. 32 An. 704.
    The onus probandi is on the party claiming, by virtue ef a tax sale, to show that the formalities required in making the assessment have been comx>liod with. 33 An. 520.
    
      Burgess & Burgess and W. J. Knox, for Defendants and Appellees:
    Assessments stand in lien of judgment in ordinary judicial sales. 29 A. 508; 10 A. 74; 10 L. 276.
    There is no difference in execution sale and tax sale, except in mode and period of advertising. 1L. 491. All- informalities in public sale, such as want of seizure, notice, advertisement and other relative nullities, are prescribed by 5 years. 14 A. 790 ; 21 A. 505, 585; 29 A. 534; 33 A. 1045.
    
      Where land is assessed for a long term of years, in the same name and style as Heirs of Englehart, or Englehart’s Heirs, and taxes are paid hy the heirs, or their agent, for a series of years, afterwards sold for taxes, or as forfeited land to the State trader same assessment, there being no change either in the mortuaria of deceased or in the Conveyance office, the sale will he good and prescription applies. 33 A. 554, 816; 11 A. 251.
    Purchasers at tax sale must be reimbursed or tendered amount so paid before suit can be maintained to annul it. 24 A. 525.
    And when paid at a void tax sale, so much as was really due od the property for tax sales, he is entitled to be refunded. Hopkins vs. Succession Dauaoy, 33 A. 1423.
    Eor possessor in good faitb, see 12 A. 545; 1 H. S. 408; 19 A. 25; and 26 A. 58T.
    Act Ho. , 1875, Seclion3, which remits and prohibits sales for taxes to Hovember and December of that year, was not authorized hy the title to the act, and is unconstitutional and void. All actions to annul tax sales are prescribed by three years. Acts 1874; 33 A r 291.
   The opinion of the Court was delivered by

Todd, J.

This is suit to annul certain tax sales and recover the land, the subject thereof.

The grounds of nullity charged are: illegal assessment, notice, seizure, advertisement, and, in short, irregularities in all the formalities and requirements preceding and attending such sales.

The property in question had been owned for many years before the sales, by the plaintiffs, who had acquired it hy inheritance from their ancestress, the wife of John Davenport, and she had derived her title to it from her parents, Philip and Magdalene Euglchart, the first of whom died in 1817, and the latter in 1828. The property was never assessed in the names of the plaintiffs, who for many years had been the true and undisputed owners of it. It was assessed to the heirs of Euglchart, and described as 500 acres on Ward’s Creels, with rather a vague reference to adjacent tracts. The sale was made of two parcels of the land to N. Bertrand and N. K. Knox, respectively, on the 7th of December, 1874, and of the residue to E. W. Willis and T. E. Blonin, on the 25th of May, 1875.

It is not necessary to discuss all the questions raised touching the several irregularities urged against the sales in question. It is sufficient to say, that under our repeated adjudications, the assessment of the land, as described above, was radically defective, and was not, and could not, bo made valid by the alleged acts of ratification. The case is not within the principle of Dane vs. March, 33 A. 554; Carter vs. City, 33 A. 816; 32 A. 912, 924 5 Stafford vs. Twitchell, 33 A. 520, and authorities .there noted.

The assessment, as has been often said, is, as it were, the judgment under which the sale is made, and it is a self-evident proposition that a sale of the plaintiffs’ land, tinder a judgment against the heirs of Englehart, would he absolutely null. 10 A. 771; 28 A. 17; 33 A. 520.

In addition to this, the sale to Willis & Blouin, on the 25th of May, 1875, was made in contravention of a prohibitory law suspending sales for taxes for a given time. 30 A. 871l; 32 A. 228, and case of Wederstrandt vs. Freylian, not yet reported.

The exception of want of tender cannot prevail in a case of this hind. Stafford vs. Twitchell, 33 A. 520, and case last above cited.

And in the case of Lague vs. Boagni, 32 A. 914, we held, that in the face of a radical defect in the assessment, as in this case, prescription cannot be accepted as intended to perfect titles in cases in which the gravest irregularities and absolute nullities have been propounded.” See also Wederstrandt vs. Freylian, above cited.

In the Stafford case referred to, and others where the sale was annulled for irregularities, identical or similar to those found in the instant case, we recognized the right of the purchaser at tax sales to claim reimbursement for the taxes paid on the property and improvements made thereon. 19 A. 25; 26 A. 587; 33 A. 175; 33 A. 521; Wederstrandt vs. Freyhan, 34 A., not yet reported.

The testimony in the record does not, however, inform us with accuracy as to the amount of taxes (not including costs and penalties) due on the lots of land acquired by the defendants, respectively, at time of sale, and paid by them subsequently to tlieir purchase, or the proportion of the taxes due on the entire tract, paid by each purchaser, and the taxes paid by each separately after their purchase. The costs and penalties cannot be reimbursed. Hopkins vs. Daunoy, 33 A. 423.

Nor are we enabled to make a satisfactory estimate of the value of the improvements made by the several purchasers, from the evidence in the record. This compels us to remand the case for further evidence on these points.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from bo annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that the tax sales of the land described in the petitions made respectively on the 7th of December, 1874, and 25th of May, 1875, be, and the same are hereby declared null and void, and it is further ordered, that the case be remanded to the lower court for the purpose of ascertaining the amount of taxes (not including costs and penalties) paid by each of the defendants, rcsx>ect.ively, on the lots or parcels by them xvurchased, due at the time of sale and subsequently, and the value of the improvements by them respectively made, the right to recover which said taxes and imx>rovements is reserved to the defendants; defendants to x>ay costs of both Courts.  