
    (35 South. 534.)
    No. 14,246.
    STATE ex rel. PERKINS v. RECORDER OF MORTGAGES et al.
    
    (Jan. 20, 1902.)
    APPEAL — FILING TRANSCRIPT — TAXATION — PRESCRIPTION—TAX PRIVILEGES—FAILURE TO RECORD—CANCELLATION.
    1. Appellants have three judicial days after the return day within which to file the transcript of appeal, whether the court is in session or not in session.
    2. The return day was the 2d day of December. The transcript was seasonably filed on the 5th of that month.
    On the Merits.
    3. Under section 36, Act No. 96, p. 142, of 1877, article 176 of the Constitution of 1879, and subsequent legislation, privileges for state and city taxes, whether recorded or unrecorded, became prescribed in either three or five years, unless the prescription was interrupted by the pendency of suits which prevented the collection of the taxes.
    4. Under article 176 of the Constitution of 1879, unrecorded tax privileges more than three years old at the date of the filing of the suit do not bear upon property acquired in 1897 by a third person, who in 1898 brings suit to have them canceled, and the cancellation will be ordered.
    
      5. Privileges for state taxes of 1875 and 1870, when recorded under the law hy authority of which they were levied, were imprescriptible, and, though more than three years old, were not eo instanti destroyed by article 1S6 of the present Constitution. And the pendency of a suit involving their validity at the date of the adoption of the Constitution, and since, serves to interrupt the prescription declared by that article.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Crleans; .John St. Paul, Judge.
    Application by the state, on the relation of Henry C. Perkins, for a writ of mandamus to the recorder of mortgages and others. Judgment for plaintiff, and defendants appeal.
    Modified.
    Edward S. Whittaker, Asst. City Atty., for appellant city of New Orleans. Francis Charles Zacliarie, for appellant tax collector. Edward K. Skinner, for appellant board of assessors. Benjamin Rice Forman, for appellee Perkins. Dinkelspiel & Hart, for appellee recorder of mortgages.
    
      
      Rehearing denied January 6, 1904.
    
   On Motion to Dismiss Appeal.

BREAUX, J.

Appellee and relator moves to dismiss the appeal on the ground that it was made returnable on the 2d day of December, 1901, and that the transcript of appeal' was not filed here on the return day.

The idea conveyed by the motion to dismiss is that if the court is in session the transcript must be filed on the return day, and the appellant is not entitled to a delay of three judicial days within which to file.

We have not found section 4, No. 45, p. 100, Acts 1870 (Ex. Sess.), entirely clear upon the subject. Three judicial days are allowed when the court is not in session. By construction heretofore this court has always held that the appellant is equally as well entitled to this delay when the court is in session on the return day as where it is not in session. We have concluded to let that ruling remain unchanged.

A motion was made to dismiss an appeal years .ago on the ground that the “return day” does not mean three days plus one day; that “within the time” means to and inclusive of the day fixed, but not one day in addition beyond it. The court was in session on the first day, as shown by the minutes in the clerk’s office of the Supreme Court held in Monroe. The court said: “The right to file a transcript within the three judicial days following the fixed return day seems to be impliedly accorded by law, and has almost invariably been so recognized.” Wood and Roane v. Wood, 32 La. Ann. 803.

The ruling of the court since that decision was rendered only affirmed the correctness of the construction therein announced. We repeat here that which we said in the decision cited above: “The jurisprudence on that point is so ancient that it has become a rule of practice throughout the state.”

The motion, as made, covers the additional ground that the record should have been filed on the 4th instead of the 5th. The appellee argued the motion chiefly on that ground, and contended that the transcript filed on the day before mentioned, to wit: the 5th, was not filed in time.

It has always been held, and again quite recently, that the right to file a transcript within three judicial days following the legal return day will not be disturbed. Rosetta Gravel Co. v. Adler, 52 La. Ann. 689, 27 South. 183. We infer that the court sought in the decision from which we have quoted above to place all appeals on the same footing as relates to the time of filing the record. In that view, the word “thereafter,” in the statute cited, at the end of its fourth section, includes both appeals; that is, the appeal filed when the court is in session and the appeal filed when the court is not in session. Otherwise an appeal filed out of term time might be filed three judicial days after the return day, while an appeal filed when the court is in session would have to be filed on the return day. The Legislature did not seek to create such a difference, and we therefore adopt the views heretofore expressed as applying to all appeals.

The motion to dismiss is denied.

On the Merits.

(Nov. 3, 1903.)

MONROE, J.

Relator, as the owner of two lots of ground in the city of New Orleans designated as lot 10 in the square bounded by Melpomene, St. Charles, Oarondelet, and Terpsichore streets, and lot 15 in the square bounded by Gravier, Baronne, Union, and Carondelet streets, instituted this proceeding in January, 1898, against the comptroller of the city of New Orleans, the state tax collector, and the recorder of mortgages, to compel those officials to cancel from the hooks of their respective offices certain tax inscriptions, and to prevent them from reporting the same and other unrecorded taxes as liens, privileges, or claims against said lots. The taxes and inscriptions complained of include that for drainage, under the act of 1857, and the state and city taxes, recorded and unrecorded, for different years from 1868 to 1897. It is alleged that the drainage scheme for which the tax in question was levied has been abandoned, and that the claim" for the tax has been merged in a judgment, which is barred by the prescription of 10 years; that, with respect to the state and city taxes which have been recorded, the inscriptions in some instances have been canceled by judicial decrees, and that in other instances the privileges resulting therefrom are barred by the prescriptions of 2, 3, 5, and 10 years; and, with respect to those which have not been recorded, that they do not affect the property in the hands of the relator, as a third person, and that the privileges therefor, if any ever existed, are' barred by the prescriptions mentioned.

The recorder of mortgages, having no interest, answers pro forma. The city comptroller answers that the taxes and privileges complained of are valid; that the tax of 1896 was not three years old when the suit was filed; that the collection of the taxes of 1882, 1883, 1884, 1885, and 1886 was prevented by injunction; and that the city taxes and privileges for 1868, 1809, 1870, and 1871 are imprescriptible. And this answer, so far as applicable, is adopted by the state tax collector.

It is a matter of history, of which this court is informed through its own records and decrees offered in evidence, through the opinions and decrees of the Supreme Court of the United States, and through the public statutes of the state, that the drainage work for which the tax here in question was imposed has long since been abandoned, and that the relator’s lots are now taxed in support of a system of drainage inaugurated under recent legislation. Davidson v. City, 34 La. Ann. 170; City of N. O. v. Warner, 175 U. S. 120, 20 Sup. Ct. 44, 44 L. Ed. 96; Acts of the General Assembly of 1877, p. 106, No. 67, and Acts 1899, p. 16, No. 6; State v. Kohnke, 109 La. 838, 33 South. 793. The inscriptions of the drainage assessments of which the relator complains should therefore be canceled.

It is admitted that the taxes of 1868 and 1869 referred to in the petition have been declared void by judgments long since rendered, and that those of 1894, 1895, 1896, and 1897 have been paid. The other taxes involved in this litigation are for different years from 1870 to 1890, inclusive of the two years mentioned. Under Acts 1877, p. 142, No. 96, § 36, article 176 of the Constitution of 1879, and the legislation subsequent thereto (vide Acts 1880, p. 95, No. 77, § 24; Acts' 1882, p. 130, No. 96, § 34; Acts 18S6, p. 37, No. 26, § 1; Id. p. 145, No. 98, § 34), all liens and privileges for taxes, whether recorded or unrecorded, lapsed at the expiration of either three or five years; this prescription, under the act of 1880 and subsequent acts, being subject to interruption by the pendency of suits preventing the collection of the taxes. There is no sufficient evidence of the pendency of such suits in this record, from which it follows that the taxes for the year 1877 and subsequent years no longer bear upon the property, and the inscriptions thereof should be canceled.

Article 176 of the Constitution of 1879 provided that:

“No mortgage or privilege on immovable property shall affect third persons unless recorded or registered in the parish where the property is situated, in the manner and within the time as now or may be prescribed by law; except privileges for the expenses of last illness and privileges for taxes, state, parish and municipal: provided, such privileges shall lapse in three years.”

The prescription thus declared has been held to apply to unrecorded privileges, and to such privileges only. Davidson v. Lindop, 36 La. Ann. 765; Saloy v. Woods, 40 La. Ann. 586, 4 South. 209; Succession of Stewart, 41 La. Ann. 130, 6 South. 587; Factors’ & Traders’ Ins. Co. v. Levi, 42 La. Ann. 437, 7 South. 625; Succession of Parham, 51 La. Ann. 985, 25 South. 947, 26 South. 700. And inasmuch as the relator acquired in 1877, and instituted this suit in 1898, it follows that all the unrecorded privileges which were more than three years old at the date last mentioned had lapsed, and no longer bore upon the property.

The question which remains relates to the state taxes of 1875 and 1876. These and t-he privileges by which they are secured, it has been held, are imprescriptible, under the law by the authority of which they were levied and recorded. Acts 1871, p. 115, No. 42, § 37; Reed v. Creditors, 39 La. Ann. 124, 1 South. 784. Having been recorded, they were not affected by article 176 of the Constitution of 1879. It is said, however, that the privileges have lapsed under article 186 of the present Constitution. It is quite certain that they had not lapsed when the present Constitution was adopted, and this court has twice held that the article relied on is not to be so construed as to destroy, eo instanti, recorded privileges for taxes which were then alive, even though they were more than three years old. Succession of William Parham & Wife, 51 La. Ann. 985, 25 South. 947, 26 South. 700; State ex rel. Hart v. City, 51 La. Ann. 912, 25 South. 951. That being the case, and the present suit, which was pending when the Constitution was adopted, having since then operated to prevent the enforcement of the privileges in question, it follows that they are still alive.

It is therefore ordered, adjudged, aud decreed that the judgment appealed from be annulled and reversed in so far as it orders the cancellation of the inscriptions securing the state taxes on the property described in the petition for the years 1875 and 1876, and that in all other respects it he affirmed; the relator to pay the costs of the appeal.  