WESTERN LAND WESTl!1RN
&
EM!GRATION
00.". GUINAULT. March 14; 1889.)
287
LAND & EMIGRATION CO. ".GUINAULT, Re<lorder,et al. (Oircu:lt (Jo'Urt,lIJ. D. Louisiana.
TAXATION-SALE
Act La. 1882. (Laws 1884.§ 5;) relating to slllesfor taxes. provides that "the purchaser shall however assume' ai:Jdpromlse to pay. and shall take said property SUbJect to. all unpaid taxes on'the saine due subsequent to DecemberBl. \879. · Held, that the, act did not have the effect of reviving against the property sold liens for taxes which had become barred by limitation.
11'01\ NON-PAYMENT-PRESCRIBED LIENS.
In Equity. On demurrer to bill. Bill by the Western; Land & EniigrationCompnny, 11 corporation of Indinna, against George' ,Quinault, recorder of mortgages for the parish of Otleans; C. Harris()n Parker, state' 'collector of the First municipal district of New Orlean$; Isaac.W. Patton, state tax collector fOJ: the ;Fourih,SiJr;th,and Seventh districts, and the city of New Orleans-toreftrainthe .collection of a tax. ,The bill alleges, among other things: .. (1)' That in the year 1884 the general as1lembly of 'the state of Louisiana enacted an act entitled ·An act to provide for the sale of property bid in for and adjUdicated to the state, and of property on which taxes are due the 'state prior to December 31, 1879; tl>regnlate' in what manner said Eales areto take place; to provide for the payment and cancellation of all incumbrances, and of all taxeBdueprior '31, 1879; to establisb the validity of sales made in compliance herewith; to provide for the payment of costs incurred under this act, and for the payment of unpaid costs incu rred in ad and offering for sale. immovaLle: property; to enforce the paYment of taxes which were due to the state prior to'December 31, 1879; and to provide how the 'payment into the' state treasury shan be made of' mofieyrealized to the state from the enforcement of this act,'-being act No. 82 of the Acts of Louisiana for the yeat 1884, 'approved on' the 10th day of JUly, 1884. That James D. Houston, late state tax collector for the upper distritt of the city of New Orleans, in compliance with the provisions of said act, did advertise and otter for sale various anll sundry squares and lots ofgrOl1nd Bituatedin the Firstl,'Fourtb,Sixtb, and Severith districts of the cityo! New Orleans; and, baving fulfilled all the requirements of said act, did during theyears 1886 and 1887 Bell and adjudicate unto Domingo Negrotto, Jr., the following described squares andlots'of grouiid,to;.wit: '" ' 'That, in compliance with said adjudications, the said Domingo Negrotto, Jr., did pay unto the said James D. Houston, then state tax coUector fOf the upper district of t·be city ofNew Orleans, the price at whilJh said squares and lots of ground were adjudicated tohim, respectively, and the sa'id Houston thereupon gave to the saidNe. grotto a receipt for the'pnce of said property so paid unto him,togetherwith aprooea-verbalof the Bale of each of said properties;erititling him Madju dicatee to a deed for eao'll of said properties, as provided by the said act No. 82 of the acts of the state of Louisiana for the year 1884 aforesaid.' Tlmtin compliance' withsection 5.of the said act, No. 82, approvedJuly 10, 1884, above referred to, the said D.:N'egr6tto, Jr., the purchaser of said squares andlotil of g'roundaforesaid, did assume and promise to pay,'and did take said propel'ty subject to, all ul1paidtaxes on ,the same due SUbsequent to December 31, 1879: 'I, , I 'i' ' , ' I , then (iollectorfOr. the' upper 'drstfict oftnl! Cl'tyo'f New Orleans, did make and exe;.
288
FEDERAL REPORTER,
vol. 38.
cute to the said Domingo Negrotto, Jr.. deeds of sale to the following described of property, adjudicated, unto him as aforesaid, in with the provisions of act No. 82 of 1884, above referred to, to-wit: * II< ... "(3) That on the 15th day of December, A.D. 1888, the sa.id Domingo Negrotto, Jr., sold, assigned, transferred, delivered, and set over and conveyed unto your orator, the Western Land &:Emigration Company, all of the abovedescribed sixteen squares and lots of ground as per act passed before Joseph H. Spearing, a notary public of the city of New Orleans, which said act is to be produced at the hearing of this cause. "(4) That the said Domingo Negrotto, Jr., did on the 12th day of December, A. D. 1888, transfer, set over, and assign unto your orator all his right, title, and interest in and to the proces-verbals delivered to him by James D. Houston, state tax collector aforesaid, for all of said properties, with the exception of the sixteen squares and lots of ground above described; and thereupon your orator obtained from C. Harrison Parker, state tax collector for the .First district of the city of 'Orleans, (the successor in office of James D. Houston, state tax collector for the upper districts of the city of New Orleans, aforesaid,) by virtue of the authority in him vestt'd by said act No. 82 of 1884, title deeds from the state of Louisiana for each of said ptoperties respectively, situated within the boundaries and limits of the Firat municipal district of the city of New Orleans, as will more fully appear by acts of sale from the state of Louisiana ,to the said Western Land & Emigt'ation Company, (your orator,) passed before Joseph H. Spearing, a notary public of this city, on the 15th day of December, 1888. And your orator further shows that in comissued to James D. Houston, late tax collector pliance with the of the upper districts of the city of New Orleans, to Domingo Negrotto, Jr., the adjudicatee and purchaser at said tax-sales, and which proces-verbals had transferred, and delivered to your orator as aforesaid, Isaac been W. Patton, state tax collector for the Fourth, and Seventh municipal districts of the city of New Orleans, (he being the successor in office of James D. Houston, state, tax collector for the upper districts of the city of New Drleans,) iUd, by virtue of the authority in him vested by the aforesaid act No. 82 of execute, and deliver unto your orator, title deeds from the state of Louisiana to each of said squares and lots of ground situated within the boundaries al)d limits of the Fourth, Sixth, and Seventh municipal districts of the city of New Orlllans, all of which will more fully appear by said acts of sale from the state of Louisiana to the Western Land & Emigration Company, passed before Joseph H. Spearing, a notal'ypublic of this city, on the 15th, day of December, A. D. 18l:l8, here refllrred· to, and to be produced at of this cause. And your orator caused all of said acts of sale aforesaid to be duly rt'gistered and recorded in the can veyance office of this parish on the 15th day of December, A. D. 1888, the day on which your <>rator became the owner of said properties as per acts passed before Joseph H. notary public of tbis city, above mentioned. "(5) Now your orator avers and charges that by section 24 of act No. 77, .approved April 9, 1888. entitled ·An act to provide an annual revenue,' etc., · all taxes, tax mortgages, and tax privileges shall be prescribed bythl'ee years from the date of t!ing the tax-roUs' in the mortgage office of the parish in which tbe property is situated; and by section 34 of act No. 96, approved July 6, 1882, entitled' An act to provide an annual revenue for the state of Louisiana/etc., it is further enacted that all taxes, tax mortgages, and tax pl'ivileges shall be prescribed by ft v\ly.ears from the date of filing the tax-rolls in the mortgage ottice. '£hat said tax-rolls are registered and inscribed in the mortgage office of this parish between, the months of. March and October of each ,year, respectively, in which the t,axes were assessed and levied for and during the years 1880, 1881, 1882, 1884, and 1885. Now yqur orator
WESTERN LAND & EMIGRATION CO. 'V. GUINAULT.
289.
specially pleads tbeprescription of three and five years in extinguishment of all the taxes, tax mortgages, and tax privileges on said in favor of ';be state of Louisiana,l\ssessed in the names of different parties, for the years inscrip1880, 1881, 1882, and 1883; and your orator is entitled to have tions standing and recQrded in the mortgage oftice of this parish against said properties respectively for state taxes for the years 1880, 1881, 1882, and 1883 erased and canceled; the same being extingnished by the prescription of three and five years above mentioned, and which time necessary for the acquisition of said prescription had elapsed and run before your orator became the owner . of said properties above mentioned. .. (6) Now your orator further avers and charges that there stands registered and inscribed in the mortgage office of the parish of Orleans, city taxes fOl" the years 1880, 1881, 1882, 1883, 1884, and 1885 in the names of the persons in whose names said above-described properties are assessed. That by section 36 of act No. 96 of the extra session of 1877, approved ApriL20, 1877, entitled 'An act regulating the mode of assessing and collecting taxes throughout the state,' etc., it is prOVided that · the lien, privilege, and right of pledge to hein favor of the state for state taxes, the parish for parochial taxes, and the municipalities for municipal taxes, shall be concurrent for all of said taxes, provided that the privilege and right of pledge be not considered as running .for a longer period than three years,' which law, in so far as municipal taxes due the city of New Orleans is concerned. still remains unrepealed, unaltered. and unchanged as to the years 1880, 1881, 18.82, 1883, 1884, and 1885, and which period for theacquisitiOJ1 and prescription had more than expired when your orator became the owner of said properties, respectively, on the 15th of December, 1888. Your orator therefore pleads the prescription of three y-ears in bar of .the lien, privilege, and right of pledge which forJ;llerly existed in favor of the city against said properties respectively, for taxes assessed for the 1882, 1883, 1884, and 18i:\5. That your orator is entitled to years 1880, have the inscriptions standing recorded in the mortgage office of this parish against said property. respectively, assessed in the naJ;lles of th.e former owners above mentioned, for city taxes for the years 1880, 1881, 1882, 1883, 1884, and 1885, erased and canceled; the same being extinguished as aforesaid by the prescription of three years. "(7) And your orator further aver!! and charges that, after becoming the owner of said properties above described, to-wit. since the 15th of December, 1888, it has paid all state taxes due and owing upon said properties, respect1vely, for the years 1884, 1885, 1887, and 1888, being the fi ve years prior to the acquisition of said properties by your orator, and for which your orator holds the tax-receipts and acq uittances of the tax collecCors of the municipal districts in which said properties are respectively situated, to be produced on the trial of this cause. "(8) And your orator further avers and charges that it has also paid all the city taxes due and owing upon said properties for the years 1886; 1887, and 1888, being the three years prior to the acqUisition of said properties by your orator, and for which your orator holds the tax-.receipts and acquittances of the treasurer of thecity of New Orleans; the same being all the taxes due and owing on the ptoperties above described, bearing any lien or privilege upon said properties. "(9) That your orator has in vain demanded of Georgtl Guinault, the recorder of mortgages for the parish of Orleans, the erasure and cancellation of the inscriptions of said state taxes for the years 1880, 1881, 1882, and 1883, and of city taxes in favor of the city of New Orleans for the years 1880, 1881, 1882, 1883, 1884, and 1885; but that said recorder, although thereunto amicap).y demanded and requested, refuses to comply WIth YO\1r orator's demand. That t he registry and inscription of said state and city taxes against said properties v.SSF.no.4-19 ..
290 '
.FEDtRAL REPORTER,'
vot' 38.
assessed in the names of the severalpa:1ti(\! 'a1?6ve :nientioned; creates s' cloud upon your orator's title to said properties, prevents it from selling and . ingof the same'all' it desires and intends 'to' do. and prevents said properties' , from being placed in commerce. improvl:'d. and enhanced in value. "(10) '.rbat ,the city of New Orleans. its ollicers and servants. as well as the said C.Harrison Parker, state tax colledtorfor the First municipal district. and Isaac'W. Patton. state tax collector for the Fourth. Sixth, and Seventh municipal distrlcts l in which said properties are 'respectively situated, pretend and assert that said taxeS are still due and owing upon said properties, and' threaten to advertise and sell said properties for the payment of said state and city taxes;'wbich have been extinguished by the prescriptions of three and five yearaafOl'esaid. prior to the'acquisition thereof by your oratol'j under the laws of the state of Louisiana, all to the great injury. detriment, and damage of you'r orator. That said threatened tax-sales. if made by the state or city; would'<!'ast clouds upon your orator's title to said properties respelltively, compel it to sufl'er· irremediable daliJage. and subject it to vexatious litigation·. "(11} That the city of New Orleans has altendy and wrongfully advertised a 'portion of said property for sare for taxes claimed to be due thereon moretban three years prior to the purchase thereof by'your orator. '''(12) That in order tOllvoid a mUltiplicity of silits,and wasteful and expensive litigation grOWing ollt of said threatened tax-sales, your orator is entitled to invbkkthe equitable writ of injunction. forbidding and prohibiting the city of New ,Orleans. and saitl C. Harrison'Parker, and Isaac W. Patton, state tax collector as aforesaid, from advertising; selling. or attempting to sell, any or all, or any portion, iofthe squares 'and lots of gr6'und above described, be-: longing to your orator, and upon which-all taxes legally due both the state of Louisiana and city of New Orleans have been paid, under -the false pretext that the saidproperty is still Hable in the hands of your oratorfoi' the prestlribed city and state taxes above mentioned. ' , "(13) Thatduting the years 1880 to 11::185, inclusive, and up to the preseiIt time, there were, or are, nO'suits pending to prevent the state of Louisiana,: through its tax collectors, Or the citY. of New Orleans,. from c()llecting the taxes due for the years 1880, '1881, 1882,' 1883, 1884, and 188'5, and the prescription' herein pleaded and interposed against said state anlt city for said taxes bas; never beeiHenounced, suspended, or interrupted. " '. "(l4) ,That' the 'assessnient· of said' taxes on said'properties so owned by your orator, far' which the state tax' collectors, C. Harrison Parker and Isaac! Pattonj and the city-Of New Orleans, 'illegally ciai'm as due and secured by' liens, pledges,aild privileges thereon, and which your' orator avers and contends are prescribed, including interest and penalties, exceeds the sum of three thousand . ,
,:To thebiU the defeuda,nts filed lJ. general demurrer, relying upon sect\on 5 of the act of.1882 of, Laws of 1884, as follows: .. Beit further enacted;'; ..that the price bid and paid for said property shall be in full and final payment and slj.tisfaction of alt state, city, parish, . m"nlcipaltaxes due on December 31, 18?9, With all Interest, tOl!lts, and charges' on the same; and the recordatIOn of the deedor, sale of a duly-certified copy of same in the mortgage office. shall operate as. a' cancellatio,?- of' all legal, and jUdicial. mo.rtgages, and of all, t(txes. tax lIens, tax pl'l;vileges, and. ta:X:IDortgageEl due prIOr to December 31,' 1879, with all 'Costs, and cba!ges thereon on the property sold.. If theJ>rice paid fOnll.id is not sufficient to pay in 'full all costs and' herein set 'forth, artdthe taxes due priOlO to December 31, 1879, with'" inferest. costs. and thereon due by said property. then the price, after' the payment of the costsahd eharges hereil:{provided pard, shall be
·
.,RE;ELY ll. WEIR.
291
.· dllltribtJtedproportiOll'ately to payJinlfut':ofr all unpaid! state, city, parisb, and fIliunicipal taxes. 'interl18t;'OO1lts; '8lltl by t@ December:31j: 1869: . The shall. b0w.ev.er.. assQmeapd promise topay.:antJ shall take .qtl'!e. same due Subsequent· to December 31; 1l::l7S..The balance ret111tining of the price of the saidliales. after the payment of all tbecosts.and cQarges herein provided to be paidof all unpaid taxes due prior to December 31, 1879, shall be paid into the state trasury, as herein provided." .
And that under said section, the purchaser pf taxes prascrihed or not. . r:. E·.' H. ,McOaleb and W. H. Smith, for complainant· .' 'So L. Gilmore and Wynn Rogers, for defendants. , . Before PARDEE and BILLINGS, JJ. (. !.'ERr.CURIA¥. ,
the
.
This CEl-use hM'ing been heard at a pJ1evious day upon the demurrer filed herein, and the court having duly considered the doth now order, adjudge, and decree that the meaning of section 5 of act No. 82 of the Acts of the state of Louisiana for the Y\'iar 1884, is thaiHhe property sold at the tax-sale should pass to the purchaser subject to such Jiens for unpaid taxes as could have been enforyed against the same in ,the hands of the forIper owner, in case there had beert no ,sale, and tnat it was not the intention of the legislature in said act to revive against property sold for taxes. any lien that had already ceased to exibt thereon, ,Ilnd that the said demurrer is bad in law, and ;that the same be overTiIled. It ,is'further ordered that the respondents have until next rule-day in which to plead by way of plea or answer to the bill Qf complaint herein. Both judges concur.
KEELY
v.
WEIR
et al.
«(Jtrcuit Oourt.
w: Do'
Tenneaae6. January 22, 1889.)
t.
JUDGMENT-'-RES JUDICATA-PARTIES AND PRIVIES...,.TAX-8ALE.
2.
If one who claims to be the beneficiary of a resulting trust in land, which has been purchased by a tru.stee in her own name, be not J;Ilade a party to a bill filed bithe devisees of the trustee to impeach the validity of a tax-sale,ll,S against the purchaser of the tax-title, she is nevertheless bound by a decree in favor of the .tax purchaser, because she is in privity with the trustee, ot those upon whom the legal title has devolved, as they may file,tp.ebiU in her behalf without making her a party in form. especially where her interest does not appear except by construction, and is only a secret trust. and more especially where the title impeached is a tax-sale upon an assessment against the ostensible owners,
TRUSTS-RESULTING TRUST-WILLS-DISCRETIONARY POWER8'-LIFE'TENANT AS TRUSTEE. . " ".
Where a father's will left the property to his wife during widowhood for the purpose of educating the children, and to give to each hi.s portioIl On mn.r, riage or coming of age, and with powers of management and sale; if sell a part of the property, and purchase other land in her own name, no trust in that land results in favor, of one of the children who has been byithe mother'swiltde!lied!l!ll share'in H"upon a bare aJ,legation that the purchase