Carmichael v. Aikin's Heirs

Rost, J., delivered the opinion of the court. On the 13th May, 1828, the plaintiff purchased, by nota [210] rial act, a parcel of ground situated within the, incorporated limits of the city of New-Orleans, for the sum of fourteen hundred dollars; part of which, in 1828, was sold at the suit of the corporation, to pay eighteen dollars and sixty-nine ,1, , , , . . , , - ii cents, city dues, and was adjudged to the highest biddei, after the usual advertisements, for the sum of one hundred and ninety-five dollars. taxesadue6 ü°e New°Orieans °f by non-resid’ent thenáme^f'the owner must in all cases be given and publish-<ieed\ngs.ie bThe designation that known,isinsuffi-cient to make such sales valid, The plaintiff now claims the part which was sold, alleging that he never parted with his title, and that he has not been legally divested of it. The defendants and their warrantors claim title under the judicial sale, and the only question at issue is, whether that sale and the proceedings under which it took place were in due form of law. In the District Court the case was submitted to a jury, who gave their verdict in favor of the plaintiff; and judgment having been rendered in conformity therewith the defendants appealed. The act of the legislature under which the defendants caused the parcel of ground in controversy to be sold, has already received the interpretation of this court, in the case of Morris vs. Crocker, 4 Louisiana Reports, 147, and it was then held, that purchasers under that act are bound to show, that all the formalities required by it have been fully and faithfully complied with. That statute authorizes the collection, in a manner which it provides, of the taxes and other sums due to the corporation by non-residents, who have no agents in the city. The district judge was of opinion, and so charged the jury, that Ihe name of the non-resident owner must in all cases be §*ven proceedings under that statute, and that the designation of an unknown owner was not sufficient to make them valid. We are of opinion the judge did not err. If the name 0f t]ie owner had been known in this instance, the cor-7 poration would have known, also, that Kenny Laverty was his agent, and had paid taxes for him on other property, a few m0nths before the institution of the suit by the corporation. So long as the owner was unknown, the court who . _ . , , , - tried the case had no means to ascertain whether he resided [211] here or elsewhere. The judgment states, that it was proved by Joseph O. Ramos, syndic of the faubourg, that he, Ramos, had used every diligence in his power, to. find out the owner or his agent, without being able to succeed. This does not prove that the owner was a non-resident. The judgment rendered against him, as such, is notin conformity with the statute, and cannot sustain the title of the defendants. This judgment is defective in other respects less important. It does not state that the debt upon which the corporation sued was proved, although the law expressly requires it should be, contradictorily with the attorney appointed to represent the absentee. The designation of the lot, as number 5, square number 58, faubourg Jlnnunciation, is insufficient. The street upon which lot number 5 fronts, the lateral streets of square 58, and, as far as practicable, the extent and boundaries of the lot ought to have been given. The object of the law, in directing that the property sold under this act shall be advertised three months, is to bring the fact of the seizure to the knowledge of the absent owmer; but how could he recognize his property, under the designation of number 5, in square 58. The dimensions and situation of the lot are also necessary, to enable the bidders at the sale to know what they are buying, and this case furnishes a striking instance of the loss to which absent owners may be subjected, by the omission of that formality. The debt or corporation tax due by non-resident owners of lots, must be proved, contradictorily with the attorney appointed to represent the absentee, and must be so stated in the judgment. In a forced sale for taxes of lots in the city, it is insufficient to designate the lot by its number, and that of the square it is in. It should be described, and its extent and boundaries given. We are of opinion that the judgment of the District Court ought, to be affirmed. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs in both courts.