Antoon v. Wilkinson

STATEMENT OF THE CASE REYNOLDS, J. This is a suit by Mrs. Josephine Abdella Antoon, individually and as guardian of the minor, Albert Abdella, issue of her marriage with Romain Abdella, deceased, commenced May 28, 1923, against J. Y. Wilkinson to have declared null and void and cancelled as a cloud upon their title to Lot 15 of Block 21 of Fairfield Heights Subdivision, Caddo Parish, Louisiana, part of the village of South Highlands, a certain tax sale. The property was sold by the tax collector of the village of South Highlands, Louisiana, to J. W. Martin for unpaid taxes of that village for the year 1919 assessed to Romain Abdella. The sale was made on July 30, 1920, and the tax deed is recorded in Book 123 at page 707 of the conveyance records of Caddo Parish. By act dated January 16, 1923, recorded in Book 178, page 313, of said records, J. W. Martin transferred the property to the defendant, J. V. Wilkinson. As grounds of nullity it is alleged that Romain Abdella, the owner of the property, was dead at the time of the assessment of it to him for taxes of 1919, and that legal notice of the taxes being delinquent was not given to his widow in community or sole heir. The defense is that by judgment of the District Court of Caddo Parish dated December 16, 1922, in an action by J. W. Martin against Abdella Romainé, the tax title was duly confirmed. Defendant also pleads the prescription of Article 233 of the Constitutions of 1898 and 1913 and of Article 10, Section 11, of the Constitution of 1921. On these issues the case was tried and there was judgment in favor of plaintiffs and defendant appealed. OPINION The evidence shows that Romaine Abdella, who owned the property in controversy and to whom it was assessed on the tax rolls for the year 1919, died April 28, 1918. It was .sold for the taxes so assessed July 30, 1920. It is manifest that an assessment and sale for taxes under such conditions is null and void. Counsel for defendant in brief does not rely on the validity of the assessment and sale to sustain the tax title but contends that any defects in the proceeds were cured by Articles 233 of the Constitutions of 1898 and 1913; and he cites numerous authorities in support of that contention. This contention finds no support in the record. The sale for taxes was made on July 30, 1920, and this suit to annul that sale was commenced by service of citation on May 28, 1923, less than three years from the date of the sale. Defendant also contends that any defects in the tax proceedings were cured by the failure of plaintiffs to bring suit within six months after notice to have the tax sale annulled; and this contention also is supported by citation of authorities. In the suit to confirm the tax title the tax debtor was described as “Arvella Romaine”, and he was cited as “Ardella Romain” through Edward Barnette as curator ad hoc. [244] But Romain AMella, even if alive, could not- be brought into court as “Ardella Romain” through a curator ad hoc in a suit wherein he is described as “Arvella Romaine”; and as he was dead the proceeding was a nullity, also for this rfeason. The suit should have been against his widow and heirs. It was so held in Land Development Co., 12 Orl. App., supra. It therefore follow's that the tax deed relied on by defendant is illegal, null and void, and that defendant is not protected by the prescription of Section 233 of the Constitutions of 1898 and 1913. For the reasons assigned, the judgment appealed from is affirmed.