Fishel v. Mercier

The opinion of the Court was delivered by Todd, J. The plaintiff purchased at tax-sale, certain real property ■of the defendant, situated in the city of New Orleans. After his pur [357] chase and the confirmation of his title by the State Auditor, he instituted a suit in the U. S. Circuit Court for the possession of the property. The result was that the tax-sale was decreed a nullity, and he failed to get the property. Thereupon he instituted the present action to recover the taxes,, penalties, costs, etc., lie had paid out as the price of the property at this illegal sale. The answer of the defendant, who is the original owner of the property, is substantially the general issue and the averment that he was not at all-benefited by the sums expended by the plaintiff, and that he, plaintiff, had no right to demand restitution of him for the same. Prom a judgment rejecting his demand the plaintiff lias appealed. We see nothing- in this case to distinguish it from several others, wherein the present court lias held that parties in consmüi oasu were entitled to recover from the owner of property, whose taxes they had jiaid, the, amount of the same. The right to restitution results from the fact that it is the duty of every citizen of a State, to contribute to the payment of the lawful expenses of the government, and the taxes assessed against him represent his proportion of such required contribution, and if ho fails to discharge this duty and suffers another to make the payment for him without realizing any consideration for his disbursement, that he can look to the delinquent taxpayer and owner for reimbursement. It is not claimed in this instance, that the property in question was exempt from taxation ; nor that it was not regularly subject to assessment during the several years that lie, defendant, failed to pay the taxes. The defendant, however, insists that there is no sufficient proof in the record of the assessment of the property and of the amount of taxes due thereon, and that plaintiff should have produced the original rolls or abstracts therefrom to establish such facts. In the deed of the tax-collector to the plaintiff, we find a full recital of the proceedings, under which the sale was made, that the assessment was in the name of the owner, the adjudication of the property first to the State, the amount of taxes assessed and due for each year,, the statement of the penalties, costs, etc. This deed was received in evidence without objection, and was sufficient proof of the facts recited particularly, there being no opposing evidence offered and no-issue raised touching the said recitals. In cases where the assessments were shown to have been absolutely void in fixing- the amounts to be reimbursed to the purchaser, we have not allowed him the penalties, costs, etc., for the reason that they were [358] incurred or charged in proceedings absolutely null for want of a legal assessment. Stafford vs. Twichell, 33 Ann. 520; Hopkins vs. Daunoy, Ib. 1423; Davenport vs. Knox, 34 Ann. 407; Hickman vs. Dawson, 35 Ann. 1086. In the case, however, of Wedcrstrandt vs. Frclian, 34 Ann. 705, which was a case identical with this, where the sale had been annulled because made during the time when tax sales were prohibited under under the provisions of Act 7, Extra Session of 1875, the taxes, penalties, etc., paid were re-imbursed the purchaser. In our judgment we shall follow that precedent. We quote from that decision to show the reasons on which it was founded. “The title of an act to relieve delinquent tax-payers from the payment of penalties in certain cases” is sufficiently broad to include the casos in which delinquent tax-payez’S would pay the principal on the amount of their taxes-on or before the 1st of November, 1875, to whozn in such cases, all interest and pezialties would be reznitted. '* * As it appears from the record that plaintiffs made no effort to settlo their taxes on or before the 1st of N ovember, 1875, on the property, the ownership of which they claim not to have been divested by the tax sale, they are not entitled to the benefits conferred by the Act of 1875 and are bound to defendants for all costs and penalties to which the property became liable under the very legislation invoked by them.” The sale of the property in that case was made on the 25th of October, 1875, and the adjudication to the State in this bears date the 30th of August, 1875 ; and in this case, as in that, there is no proof that defendant owner-of the property made any effort to settle the taxes on or prior to the 1st of November, 1875. It is argued that, izz zio event, can the taxes and penalty for 1874, and the taxes of 1875 be recovered. The adjudication to the State was in part for the taxes for 1874, and asno offer of settlement as before stated was made • by the owner within the time prescribed by Act 7 above referred to, the penalties attached and were paid by the plaintiff and also the principal of the taxes for 1875—no penalties therefor having been incurred—the taxes for which (the last year) were ’overdue when the deed was made to the plaintiff on the 15th of May, 1876; and we cannot sec why the plaintiff is not entitled to recover for these yeai’s, as well as for the previozis years. Among the items that go to make up the total sum claimed by plaintiff, are the commissions, costs, etc., attending the tax sale. As this sale was a nullity, and the adjudication to the State made against a [359] prohibitory provision of law, the defendant cannot be saddled with these charges and plaintiff lias no right to recover them. They amount to §175.90, taking this amount from the total sum claimed, it leaves a balance of $2306.75, for which plaintiff is entitled to judgment. The plea of prescription cannot be maintained. The demand is subject to the prescription of ten years. We cannot, however, recognize, the privilege claimed by the plaintiff, resulting, as alleged, from subrogation to the State’s privilege by virtue of the payment by him of the, taxes-on the property. Such claim is not embraced in any of the provisions of Art. 2161, C. C. declaring the conditions under which subrogation takes place. Legal subrogation does not result from the payment of a privilege debt, when, at the time of the payment, the party making it has no privilege or mortgage on the. property and is without interest otherwise. Succession of Erwin, 16 Ann. 132; 12 Ann. 41 ; 13 Ann. 52. It is therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed j and, proceeding to render such judgment as should have been rendered, it is further adjudged and decreed that plaintiff recover of the defendant twenty-three hundred and six dollars and seventy-five cents, with legal interest from the 15th of May, 1876, until paid, and that the claim of a privilege upon the property set up in the petition be rejected, defendant to pay costs of both courts.