Hart Land & Improvement Co. v. Kelly's Heirs

O’NIELL, J. This is an action to annul a tax sale of plaintiff’s land. It appears from the allegations of the petition that the sale was made and recorded nine years before the suit was filed, and that plaintiff was “divested of possession.” Plaintiff alleged that the sale for taxes was “null ab initio,” for the reasons: (1) that no valid assessment was made against plaintiff; (2) that no notice of delinquency was sent to plaintiff; (3) that no notice was sent to plaintiff by the purchaser at the tax sale; (4) that no action was taken by the purchaser at the tax sale to quiet his title after the year allowed for redemption had expired; (5) that no action was taken to quiet the tax title at the expiration of the three years mentioned in article 233 of the Constitution; and (6) that no valid advertisement of the property for sale for taxes “was made in the official paper of the parish.” The defendants, heirs and transferees of the party who had purchased the property at the'tax sale, filed an exception of no cause or right of action and a plea of prescription of three years. The exception and plea, being submitted for decision on the face of the pleadings, were sustained, and plaintiff’s suit was dismissed. Plaintiff appeals. Opinion. [3] The first and the sixth reason assigned by plaintiff for expressing the opinion that the tax sale was “null ab initio” would be too vague to deserve consideration, even if article 233 of the Constitution were not applicable, because to allege that there was no valid assessment of the property nor' valid advertisement in the official journal was no more than to say that the assessment of the property and the advertisement in the official journal were invalid or illegal — a conclusion which could not be reached intelligently without knowing any fact upon which it might be based. The second complaint, that no notice of delinquency was sent to plaintiff, is not— nor would the first or sixth complaint De if they were founded upon allegations of fact— excepted from the provisions of article 233 of the Constitution, barring an action to annul a tax title for any cause except on proof of dual assessment or of previous payment of the taxes for which the property was sold, unless the suit to annul be brought within three years from the date of registry of the tax deed. The third, fourth and fifth reason assigned in the petition, for declaring the tax title null, have no application whatever to the question of validity of the title. [4, 5] To the argument in appellant’s brief that it does not appear from the pleadings that the purchaser at the tax sale has had possession of the property the answer is that possession on the part of one who has bought property at a tax sale is not necessary to give effect to article 233 of the Constitution. The admission or allegation in the petition that plaintiff was “divested of possession” by the tax sale recorded more than three years before the suit was filed discloses that the action is barred by prescription. The judgment appealed from is affirmed.