Scholfield, Goodman & Co. v. Succession of West

ON' Rehearing. The opinion of the court was delivered by Fenner, J. The plaintiffs, mortgage creditors of the iate B. JL West, seized and sold'under executory process the property subject to their mortgage. The price realized is not sufficient to pay the mortgage of plaintiffs. Thp property is encumbered by inscriptions of taxes due- the •.city of New Orleans for numerous years, and the sheriff declined to proceed in execution; of the adjudication until the conflicting claims •between the plaintiffs and the city should be settled. Thereupon the plaintiffs took this rule on the city to show cause why the inscriptions of these taxes, as liens and privileges on the property, should not be canceled and erased on the ground that said liens and privileges were prescribed. Issue was joined, and after trial judgment was rendered rejecting plaintiffs’ demand, so far as the taxe.s of 1888, 1889 and 1890 are concerned, and recognizing the superior privilege of the city [279] for the same, but making the rule absolute as to the taxes of former years. From this judgment the city appeals. The right of the plaintiffs to purge the property of prescribed privileges, apparently priming their mortgage, is not questioned. No objection is made to the mode of proceeding. The city admits that the liens- and privileges for taxes of 1887 and prior years are prescribed; therefore, we are relieved from the necessity of examining the question. ' 'We can discover no possible force in the city’s contention that plaintiffs must be denied relief because'it was stipulated in their act of mortgage that the mortgagor should, pay the accruing taxes. That stipulation imposed no duty on the mortgagees, added nothing to the legal duty of the mortgagor, and took away nothing from the rights of the city, ' The' city was entirely unaffected thereby. The city further contends, as we understand it, that plaintiffs are •entitled to no. relief on account of the prescription of the privileges, .because the taxes themselves are not prescribed, and Section 3615 ■of the Revised Statutes prohibits the sheriff from passing sale of the property “unless the State, parish and municipal taxes due on the same be first paid. ” Pretermitting the question,- much controverted in argument, as to whether Section 3615 remains in force or has been repealed by subsequent revenue laws, further reflection has convinced us that the terms “ taxes due on the same,” as used in the law, must be confined to taxes having a subsisting privilege on the property. The privilege in favor of taxes, like all other privileges, is' derived from thé latvl The Code defines a privilege to be “ a right which the nature of a debt gives to a creditor and which entitles him to be preferred befo’re other creditors, even those who have a mortgage.” O. G., Art. 3186. The law granted this privilege to the city for its taxes; but the same law declares that the privilege should be prescribed by three years. If the law had not granted the privilege, the city would not have had the right to be preferred over mortgage creditors. While the privilege subsisted, the city had this right. [280] After the privilege was extinguished by prescription, the city lost the right. To maintain the construction of Section 8615, contended for by the city, would render equally nugatory the laws granting privileges for taxes and those prescribing’ such privileges; for if, under that section, mortgages oan in no event be satisfied until the taxes are first paid, it seems absurd and superfluous either to grant or to prescribe privileges for such taxes. Obviously when the privileges for these taxes were prescribed the taxes became mere personal claims against the tax debtor, having no greater rights against this particular property than against any other property of the debtor They were no more “due, on” this property thau on any other property. Such taxes dp not fall within the purview of Section 3615, which must be so construed as to harmonize with other laws referring lo the same subject matter. It is, therefore, ordered that our former decree herein be set aside, and it is now decreed that the judgment be affirmed.