Board of Com'rs v. Concordia Land & Timber Co.

LAND, J. This is an action to establish title to real estate under Act 38 of 1908. The land in controversy is 1,833.10 acres, swamp woodland in Concordia parish. Plaintiff sets up titles emanating from tax sales to the state between the years 1894 to 1900. Counsel for plaintiff state in their brief that part of the land in controversy, through error and mistake on the part of Mason & Dale, agents of the police jury of the parish, was assessed in 1900 for taxes of that year, and also for back taxes for the years 1897, 1898, and 1899; that said lands were assessed to a former owner, the Mississippi Delta Land Company, which accepted the assessment and sold the land through mesne conveyances to the defendant; that the remainder of the land in controversy was assessed on the same rolls to “unknown owner,” sold for unpaid taxes so assessed, and conveyed by the purchaser, through mesne conveyances, to the defendant herein. The defendants answering set up a deraignment of title, tracing through the tax assessments of Mason & Dale above stated, and allege various nullities in plaintiff’s titles, and plead prescription and estoppel, based on the action of Mason & Dale in having these lands assessed to the defendant authors in title, and the payment of them by-taxes since 1901. Both parties pleaded the constitutional prescription of three years. The parties agreed upon a statement of facts, with leave to introduce additional evidence; and further agreed that the land in controversy should be divided into eight tracts, numbered from 1 to 8, for brevity’s sake and to avoid confusion. The case was tried, and there was judgment in favor of the plaintiff for tracts 5 and 8, and judgment in favor of the defendant for tracts 1, 2, 3, 4, 6, 7. Plaintiff has appealed; and the defendant has answered, praying that the judgment be affirmed as to tracts 1, 2, 3, 4, 6, and 7, and reversed as to tracts 5 and 8. Defendant’s plea of estoppel based on the action of Mason & Dale was overruled by the judge a quo, and is not pressed in this court. Tract No. 1. Was adjudicated to the state in 1894, for the taxes of 1892 and for the taxes for 1893. It is admitted that the sale for the — 251 — taxes of 1892 was void for want of an assessment to “unknown owner” for that year. It is also admitted in the statement of facts that tracts 1, 2, 3, 4, and 5 were in 1892 assessed to the Mississippi Delta Land Company, and, that the tax was marked paid on rolls. Defendant contends that the tax sale for the taxes of 1893 was also void, because the adjudication, on the face of the deed, was made for both years. The answer of the plaintiff is that the tax deed does not show a sale for the taxes of 1892 and 1893 “blended together, in solido.” The tax deed is the only evidence on this issue before the court. The deed recites that the properties, three in number, offered at the tax sale, had been assessed to “unknown owners” for the years 1892 and 1893. Each property is twice described, first under the assessment of 1892, and then under the assessment of 1893. The deed recites that: “In accordance with section 53 of Act 85 of 1S88, each specific piece of property was respectively and separately adjudicated to the state of Louisiana.” The tax deed contains the following recital: “Said properties being assessed to the following named persons as per assessment rolls on file in my office, and all described as follows.” Here follows six separate descriptions of property assessed each to “unknown owner” in different amounts, and six different tax bills. In other words, these descriptions, etc., were made just as if the properties belonged to different individuals, and there was no reason for making them except for the purposes of the tax sale. [1] If the tax collector had intended to make one offer and one adjudication for the taxes of 1892 and 1893, one description would have sufficed. The duplication of the descriptions tends to show that the intention was to make a separate offer and adjudication of the property for each year’s taxes. The contention of the defendant that the tax deed shows on its face but one adjudication for the taxes of both years is not supported by the language of the deed. Conceding that such language is susceptible of two constructions, it must be presumed that meaning was intended which will sustain the validity of the deed, rather than that which will render it void. Cane v. Herndon, 107 La. 591, 32 South. 33. Hence we construe the tax deed to mean that tract No. 1 was offered and sold separately for the taxes of 1893. This being so, such adjudication was not affected by the absolutely void sale of the same property for the taxes of 1892. Each annual assessment of property is a separate entity. Liquidating Com’rs v. Tax Collector, 106 La. 130, 30 South. 305. The deputy tax collector who made the tax sales of June, 1894, was called as a witness for defendant, but was not asked to explain how the tracts were adjudicated. The answer of defendant contains no attack whatever on the assessment for 1893. In the statement of facts, it was agreed that: “A verbatim copy of pages 92, 93 of the assessment rolls for 1893 to ‘unknown owner’ shall be filed in evidence.” Such copy was filed in evidence. On the trial of the case, the defendant offered a witness, who assisted in making the assessment roll for 1893, to prove how he arrived at the estimate in fixing the acreage tax on the roll. Plaintiff objected on the grounds that the roll was the best evidence, and that there was nothing in the answer or pleadings authorizing the introduction of such evidence. The objections were overruled, and bill reserved. The witness testified in effect that the roll, without extrinsic evidence, did not furnish sufficient data for determining which specific sections were assessed with the 5-cent acreage levee tax. The assessor, however, as shown by the tax statements — 253 — appearing in the tax collector’s deed of sale, found data for fixing the acreage taxes. We think that the objection to this testimony should have been sustained. Other objections, such as the failure of the assessor to properly extend the taxes on the assessment rolls, are urged in defendant’s brief. But no such issue was raised by the pleadings, and the contention that the filing of the assessment roll in evidence, as stipulated, enlarged the pleadings, is obviously without merit. [2] Even if the irregularities above mentioned had been specially pleaded, it would have availed the defendant nothing, because all causes of nullity except dual assessment and prior payment of taxes have been barred by the constitutional limitation of three years. Tract No. 2. [3] Excerpts from statement of facts: “That on the assessment roll for 1893 there appears the following: ‘Greenleaf, Mrs. G. H.— Schwartz — Ward 9 — 1,260 acres, formerly owned by Wallace & Greenleaf.’ That there was no other assessment of said property for said year, and the taxes were not paid. “That the tax collector for Concordia parish, La., adjudicated to the state of Louisiana by deed dated July 1, 1895, recorded July 19, 1895, * * * -fctie following: ‘Mrs. E. L. Greenleaf, the Schwartz tract, containing 1,280 acres; S. %, W. % and N. W. % Sec. 1, S. 2, T. E R. 8. lots 2 and 3 in N. E. %, west of Cocodra, See. 27, E. 1/2 of N. E. % Sec. 34, E. y2 of S. E. See- 34; frts. V2 section 35 W. of Cocodra, T. 7, R. 8, lots in N. W. % Sec. W. of Cocodra, T. 7, R. 8, less 16P acres sold to W. H. Payne.’ ” It was also admitted that tract No. 2 was assessed to W. H. Payne for the year 1896, and there was no dual assessment and the tax was not paid; and that said tract was adjudicated under the assessment to the state of Louisiana in May, 1897, recorded July 19, 1897. The defendant in its answer averred: “That this assessment is not sufficient to identify the property, as Schwartz owned another tract of land in the parish in close proximity of the above tract, which was also known as the Schwartz tract.” Defendant adduced no evidence to prove that there was another Schwartz tract in the vicinity. Plaintiff proved that in 1857 J. C. Schwartz made two purchases of land in the parish of Concordia, aggregating 1,402.99 acres; in April, 1881, the same property described as “1,419 acres of land, more or less, known as the Schwartz lands,” was sold at sheriff’s, sale and purchased by W. I. Wallace and George H. Greenleaf; in December, 1881, Wallace sold his interest to Greenleaf; and in December, 1889, Mrs. E. L. Greenleaf, as executrix of Geo. L. (H.?) Greenleaf, sold 160 of the Schwartz tract to W. H. Payne by special description. It is to be noted that in the assessment of 1893 the Schwartz tract is described as containing 1,260 acres. This indicates that the assessor deducted the 160 acres sold to Payne. It is also described as in Ward 9, and as “formally owned by Wallace & Green-leaf.” The general revenue act 1890 (No. 106, p. 120, § 8) provides: “That if the land to be assessed be a tract or lot known by a name, or if the owner’s name be known, it shall be designated by those particulars and by its boundaries.” The assessment in question gives the name of the owner, the name of the tract, the number of acres, and the name of the former owners. An examination of the sheriff’s sale to Wallace & Greenleaf, and of the sale of Greenleaf’s executrix to H. H. Payne, would have furnished a perfect identification of the property. Section 4 of Act 140 of 1890 reads as follows: “That the tax sale shall convey and the purchaser shall take the entirety of the property, neither more nor less, intended to be assessed and sold and such as it was owned by the delinquent tax payer, regardless of any error in the dimensions or description of the property assessed and sold and the tax collector in the advertisement or deed of sale may give the full description” of the property assessed and sold. — 255 — Section 3 of the same act reads as follows: “That no assessment or tax sale shall be set aside or annulled for any error in description or measurement of the property assessed, in the name of the owner, provided the property assessed or sold can be reasonably identified.” It is well settled that this identification may he completed by proof, aliunde the title, of any and all relevant facts. See Martinez Case, 125 La. 663, 51 South. 679, and In re Perrault’s Estate, 128 La. 453, 54 South. 939. In the latter case the description was as follows: ' “Heirs of C. L. and J. L. Williams, 960 acres, swamp land in T. 6, R. 5 E., parish of St. Landry.” And the identification was completed by proof that the tax debtors owned no other land in the township. Under section 4 of Act 140 of 1890, cited supra, the tax collector had the right to give the full description of the property assessed in the advertisement and deed of sale; and the purchaser took the entirety of the property. as it was owned by the delinquent taxpayer. As descriptions, “giving lines and measurements,” as set forth in recorded deeds, is all that section 8 of Act 85 of 1888 requires in assessments, it is obvious that an objection that such a description is insufficient to locate a certain tract of land is without merit. The purchaser takes the property in its entirety “regardless of any error in the dimensions or description.” Ajad the constitutional prescription of three years cures all irregularities and nullities in tax assessments which furnish the means to reasonably identify the property. Tracts 2 and 3 were assessed to W. H. Payne in 1896 and adjudicated to the state in 1897. Tax was not paid on either for the year 1896. What has been stated under the head of tract 2 applies to tract 3. Tract No. 4. [4] This tract was assessed for the year 1899 to Samuel H. Marcus. There was no dual assessment, and the tax was not paid prior to the tax sale. The tract was adjudicated to the state by deed of date May 25, 1900, recorded May 26, 1900. Tracts Nos. 1, 2, 3, 4, and 5 were assessed to the Mississippi Delta Land Company on the assessment rolls for 1900, and in the same year back-assessed to said company for the years 1897, 1898, and 1899. Since 1900, all the lands in controversy, tracts 1-8, inclusive, have been assessed to defendants or their authors in title, and all of said taxes have been paid. Section 61 of Act 85 of 1888 required that the property adjudicated to the state he continued to be assessed to Marcus until the lapse of one year from the date of the recording the act of sale to the state. Hence the assessor had no authority to assess the property to the Mississippi Delta Land Company for the year 1900. The property was redeemable within said period on payment to the treasurer of the state of the taxes, interest, and costs, and 20 per cent, of the price given. Section 62, Id. No payment whatever was made to said treasurer at any time. Hence there was no redemption of the property. The payment of the taxes for 1899, without interest, penalties, and costs,- would not have redeemed the property, even if it had been made to the treasurer of the state. It is settled in our jurisprudence that the state is not estopped by reason of the fact that the tax assessor has erroneously assessed land, adjudicated to the state, for taxes, to some individual or corporation, and the taxes so assessed have been paid to the tax collector. See Quaker Realty Co. v. Purcell, 134 La. 1022, 64 South. 894, and authorities therein cited. Lands adjudicated to the state may be redeemed; hut, if not, they become the absolute property of the state, to he sold in the manner prescribed by the statutes. The adjudication vests a present title in the state, — 257 — with the right to the possession and to all the revenues of the property. Section 58, Act No. 85 of 1SS8. Tracts Nos. 5 and 8. We make the following excerpts from the statement of facts: “That William Eby acquired the N. E. % of S. E. % Sec.. 36, T. 5 N., R. 6 E. in 1890, and that he owned no other land in Concordia parish. La. That said Eby was assessed for the year 1894, as follows: ‘Wild Cow — Frl. N. E. % Sec. 32 T. 5 N., R. 7 E. and N. % of S. E. % Sec. 36 T. 5 R. 7, 80 acres.’ That there was no dual assessment of the land assessed to said Eby for 1894, and the tax was not paid on said land.” It is admitted in the statement of facts that under said assessment the tax collector adjudicated to the state tracts Nos. 5 and 8 by deed of date July 1, 1895, recorded July 19, 1895. The judgment below recognizes plaintiff’s title to these tracts. We make the following excerpts from defendants’ brief: “The facts developed show that, at the time of the assessment, W. Eby owned a ‘forty’ in Sec. 36, Tp. 5, R. 6, but that he owned none of the land assessed to him in Sec. 32 Tp. 5 R. 7, or in Sec. 36 Tp. 5, R. 7. “Defendant, at that time, had a recorded title to tract 5, and its title to tract 8 having come into existence subsequently, in 1901, and not then being in Eby, was owned by other parties, as was Frl. N. E. % of Sec. 32, Tp. 5, R. 7.” Defendant contends that the assessment to Eby was one in globo of distinct governmental subdivisions, belonging to different owners, and for these reasons was absolutely null and void. This contention, we think, is fully answered by the following quotation in the opinion of the judge a quo: “That it is immaterial for the purposes of prescription established by the provision (article 233, Const. 1898) whether an assessment has been made in the name of one person or another, or in no name, or whether the owner has been notified of the intention to sell, or has not’ been notified, or whether the sale has been advertised, or has not been advertised” — citing Weber’s Heirs v. Martinez, 125 Da. 666, 51 South. 679, and other authorities. In other words, article 233 of the Constitution, where there has been an assessment and a tax sale, cures all nullities therein, where the taxes were due on the property, and were not paid prior to the tax sale, under any assessment. Tracts Nos. 6, 7, 8. [5] These tracts were adjudicated to the state in 1895, and certified to plaintiff board in February, 1897. In 1901, these tracts were adjudicated to one Averill under tax assessments against sundry persons, and his title passed by mesne conveyances to the defendant. The contention of the defendant is that lands adjudicated to the state for delinquent taxes are not “public property” in the sense of the Constitution, and that in such case, if the taxing officers assess and sell the lands, while they are not authorized to do so, yet they act within the scope of their authority and bind the state and its municipal creatures. The defendant further contends that the constitutional prescription of three years is an absolute bar to the annulment of said tax sales to Averill. Per contra, the plaintiff contends that lands adjudicated to the state for taxes, and deeded to levee boards, are exempt from taxation. Section 11 of Act No. 44 of 1886, relative to the Fifth Louisiana levee district, granted to its board of commissioners, “all lands forfeited or sold to the state for nonpayment of taxes, situated in said district and liable to overflows,” and declared: .“That said lands shall be exempted from taxation during the period they shall remain unsold by said board.” The lands in said tracts were deeded to said board of commissioners in the year 1897, and became the property of said levee district. The tax assessment and sale of these lands in 1900-01, by the state taxing officers, was a manifest violation of the exemption — 259 — granted by Act No. 44 of 1886, which has never been assailed as unconstitutional. That property exempt from taxation cannot be assessed and sold for taxes is a self-evident proposition. The claims of the defendant to these tracts under the tax sales to Averill were disallowed by the trial judge. It is admitted that from 1893 to 1899, both inclusive, tracts Nos. 1, 2, 3, 4, and 5 were not assessed to the Mississippi Delta Land Company, except part of W. %, section 2, township 4, range 7. In other words, said company made no return of said lands for taxation during those years. The said company owned a large number of other tracts, containing many thousands of acres, which it returned for taxation. The omission of the five tracts from the company's lists of taxable property was due to its failure to return, under oath, a correct and complete list of all of its property in the parish as required by sections 13 and 14 of Act No. 106 of 1890. The company had no actual possession of said five tracts of land, and therefore the cases cited by defendant’s counsel where the tax debtor was in actual possession at the time of the tax sale, and continued in possession, paying taxes to the state, have no application. As to said five tracts, the constitutional limitation of three years has barred all causes of nullity, save dual assessment or prior payment of taxes. As to tracts 6, 7, and 8, they belonged to the levee board, and were exempt from taxation. The argument that the defendant has acquired these three tracts by the constitutional prescription of three years confuses prescription as a bar, with prescription as a mode of acquiring property. We find in the transcript a copy of the assessment for 1893, and a copy of the tax sale of 1894, based on said assessment, but no copy of any other assessment or of any other tax sale. Hence, outside the statement of facts, there is no evidence as to how the other tax sales referred to in defendant’s brief were. made. It is therefore ordered that the judgment appealed from be so reversed and amended as to decree that the plaintiff is the owner of tracts 1, 2, 3, 4, 6, and 7, less the S. W. % of.the S. W. Vi, section 2, township 4, range 7, 43.24 acres, as described in the opinion of the trial judge, and it is further ordered that said judgment as thus amended be affirmed, and that the defendant pay costs in both courts.