Opinion
No. 1775.
June 7, 1965.
APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, NO. 401,424, DIVISION "G", PAUL P. GAROFALO, J.
Charles E. McHale, Jr., New Orleans, for plaintiff-appellant.
Alvin J. Liska and Drew L. Smith, New Orleans, for defendant-appellee.
Before REGAN, SAMUEL and HALL, JJ.
This is an action against the City of New Orleans to confirm and quiet a tax title. Plaintiff has appealed from a judgment sustaining an exception of no cause of action and dismissing his suit.
The well pleaded facts in the petition and the facts contained in documents annexed thereto are accepted as true in determining the issues raised by an exception of no cause of action. Elliott v. Dupuy, 242 La. 173, 135 So.2d 54; Spiers v. Davidson, 233 La. 239, 96 So.2d 502; Breaux v. Pan American Petroleum Corporation, La. App., 163 So.2d 406. In the instant case the petition alleges, and an annexed certified copy of the tax deed in question shows, the following pertinent facts:
The property involved consists of four unimproved lots in that part of the City of New Orleans known as Country Club Estates. The City of New Orleans acquired the property by an act of exchange from Charles I. Vincent, the then record owner, on September 10, 1951. On September 26, 1952, a year after the city's acquisition, plaintiff purchased the property for unpaid 1951 state taxes assessed in the name of Vincent. The assessment rolls of the Parish of Orleans for the year 1951 were filed and recorded in the Mortgage Office of that parish before June 15, 1951. There has been no redemption of the tax sale and this suit was filed on May 22, 1962.
The defendant contends the tax sale to plaintiff was a nullity because at the time of the sale the property was public property which could not be assessed or sold for taxes. Plaintiff contends the tax sale was valid, relying on (1) Gamet's Estate v. Lindner, 159 La. 658, 106 So. 22, which held that property adjudicated to the state could be sold for city taxes, (2) the tax lien in favor of the State of Louisiana was enforceable because the taxes were due and owing, and the property was subjected to the tax lien, before the city's acquisition, and (3) more than five years having elapsed from the date of the registration of the tax deed, the five year peremption period under LSA-Const. 1921 Art. 10, § 11 cures plaintiff's tax title even if the same is invalid.
With regard to plaintiff's first contention, we find that Gamet's Estate v. Lindner, supra, is distinguishable and inapplicable. That case held that even though property previously had been adjudicated to the state for delinquent state taxes, a municipality could still sell it for city taxes, and under those circumstances the purchaser at the city tax sale acquired inchoate rights which would ripen into a valid title upon the subsequent redemption of the property from the state. Plaintiff's contention is that since a city can sell property adjudicated to the state for city taxes, it follows that the state can sell city property for state taxes.
In Gamet's Estate the property simply was being held by the State of Louisiana as a result of a tax adjudication to the state. That title could have been lost at any time. The rules with regard to land adjudicated to the state are as follows: (1) the tax debtor or other interested person can redeem property as a matter of right at any time within three years after the date of adjudication (LSA-R.S. 47:1955; LSA-Const. 1921 Art. 10, § 11, although, under the law applicable in Gamet's Estate, the period for redemption was one year — La. Acts 1898 No. 170, § 61); (2) after the redemption period the state has the right to sell the property but it can be redeemed by the tax debtor or other interested person as long as title remains in the state (see Gamet's Estate v. Lindner, supra, and cases cited therein; Fiedler v. Pipes, 236 La. 105, 107 So.2d 409).
In Gamet's Estate the state did not have full ownership of the property at the time of the sale by the city; the property was subject to redemption at any time while being held by the state. In the instant case the city's ownership under its acquisition by an act of exchange was complete and unconditional. As distinguished from the facts in Gamet's Estate, in the instant case the city had full ownership of the property involved.
Plaintiff's second contention, that the tax sale is valid because the assessment had been made and the taxes were due and exigible before the property was acquired by the city, is correct and, we believe, determinative of the issues before us.
Public property is, of course, exempt from taxation. LSA-Const. 1921 Art. 10, § 4. And the general rule in Louisiana is that the assessment of public land is a nullity, making its subsequent sale for taxes also a nullity. City of New Orleans v. Oranbee, 170 La. 8, 127 So. 347; Puritan Co. v. Clarkson, 145 La. 1099, 83 So. 315; Cordill v. Quaker Realty Co., 130 La. 933, 58 So. 819; Richard v. Perrodin, 116 La. 440, 40 So. 789; Boagni's Heirs v. Thornton, La. App., 132 So.2d 494.
However, in each of these cited cases the property involved was acquired by the sovereign before the assessments were made, while in the instant case the assessment was made and the tax rolls filed in the mortgage office before June 15, 1951, three months prior to the city's acquisition. Accordingly, here the taxes had become due under LSA-R.S. 47:2101, which provides inter alia:
"* * * the taxes assessed in each year shall be due in that calendar year as soon as the tax roll is filed in the office of the recorder of mortgages, and they shall be paid on or before the thirty-first day of December in each respective year, * * *."
Further, in the instant case the property was encumbered by the tax lien from the time of the filing of the tax rolls in the office of the Recorder of Mortgages before June 15, 1961, according to LSA-R.S. 47:1993, which provides inter alia:
"From the day the roll is filed in the recorder's office, it shall act as a lien upon each specific piece of real estate thereon assessed, which shall be subject to a legal mortgage after the thirty-first day of December of the current year for the payment of the tax due on it, * * *."
If the property in question had been acquired by the city before the tax lien attached, it would not have become liable for taxes and could not have been the subject of a valid sale under Gachet v. City of New Orleans, 52 La. Ann. 813, 27 So. 348. In the Gachet case the city bought the property on July 8, 1885. According to the statutes then in force, the assessment was not to be completed until July 21, 1885 and the rolls were not to be filed in the office of the Recorder of Mortgages until September 1, 1885, at which time the real estate thus assessed was to be subject to a lien for taxes. See §§ 32 and 34, Act 96 of 1882; § 8, Act 107 of 1884. The holding of the Gachet case has been interpreted narrowly to stand for the proposition that sale of public property for taxes is null when the assessment is not in a matured state at the time the property is acquired by the public body and not for the proposition that public acquisition of private property extinguishes or renders unenforceable a preexisting lien. Prytania St. Market Co. v. City of New Orleans, 110 La. 835, 34 So. 797; see 158 A.L.R. 564, n. 4.
Admittedly, there is dicta in the Gachet case to the effect that even if the assessment had been in a matured state, the sale would have been null. Because "the city stands for the state" the court reasoned that the tax in favor of the state upon city property must be extinguished, applying LSA-C.C. Art. 2217 which provides:
"When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation."
We cannot hold that the tax lien in the instant case was extinguished as a result of a commingling of the qualities of debtor and creditor. Here there can be no commingling, and therefore no extinguishment by confusion, for the reason that a tax on immovable property is not a personal obligation of the owner of that property, but an obligation of the land itself. Louisiana Oil Refining Co. v. Louisiana State Tax Com'n., 167 La. 605, 120 So. 23; Barthold v. Dover, La. App., 153 So. 49; Ittman v. Krache Flanders Co., 12 La. App. 672, 127 So. 106.
Moreover, in Prytania St. Market Co. v. City of New Orleans, supra, when a private owner asserted that taxes were not due on property because it was acquired by the city during the taxable year, the court held that, because the assessment had been completed and the rolls filed in the mortgage office, the tax lien had already attached and could not be affected by the subsequent acquisition by the city. Gachet was distinguished solely on the basis of the fact that in Gachet the assessment had not been completed prior to the city's acquisition.
Real estate taxes being on a calendar year basis, the theory that acquisition in full ownership of private property by a public body during a taxable year does not erase a prior tax indebtedness for that year appears to underlie a statute which went into effect in 1954, after the facts in the instant case arose. LSA-R.S. 47:2112 authorizes and directs all Louisiana tax collectors to accept payment of pro rata taxes on property purchased in full ownership by the state or any of its legal subdivisions for the period of time for which the liability for taxes has been due by the former private owner or owners, regardless of whether the tax rolls have been filed.
We hold that a tax lien had already attached to the land in the instant case and that because this lien was a debt of the land itself it could not have been extinguished by confusion. As there is no statutory or jurisprudential authority in this state which would prevent the enforcement of this lien, it follows that the state had a legal right to enforce its lien by the sale of the property once the taxes became delinquent. Because a sale under these circumstances is valid, we need not consider the applicability of the five year peremption period provided by LSA-Const. 1921, Art. 10, § 11.
For the reasons assigned, the judgment appealed from is reversed, the exceptions of no cause or right of action are overruled and the matter is remanded to the trial court for further proceedings according to law; all costs to await a final determination.
Reversed and remanded.