38713 Precedential Processed

Di Giovanni v. Cortinas

Louisiana Supreme Court · Filed January 9, 1950 · 44 So. 2d 818

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Opinion text

McCALEB, Justice (dissenting in part). I am in accord with the ruling that plaintiffs have lost any right that they might have had to redeem the property as more than three years have elapsed since the recordation of the tax sales. But this ruling should end the case as counsel for plaintiffs stated to this court during oral argument that he was not pressing the alternative claim for nullity of the tax sales. However, apart from counsel’s abandonment of the alternative contention, it seems plain to me that the claim is wholly without merit as it has not been made within the five year period of peremption provided by Section 11 of Article 10 of the Constitution. The argument that the peremption has not accrued because plaintiffs were in corporeal possession of the property is not well founded for the reason that peremption can only be suspended in cases where the owner of the property has remained in actual corporeal possession. See Baldwin Lumber Co. v. Dalferes, 138 La. 507 , 70 So. 493 ; Kivlen v. Horvath, 163 La. 901 , 113 So. 140 and Westover Realty Co. v. State, 208 La. 163 , 23 So.2d 33 . That plaintiffs are not the owners of the property has already been twice decided by this court in Venta v. Ferrara, 177 La. 433 , 148 So. 670 and Id., 195 La. 334 , 196 So. 550 . In view of these adjudications, I am at a loss to understand the conclusion of the majority forasmuch as, whatever be the nature of plaintiffs’ possession, they are without standing in court to attack the tax sale where they are without title to the property. In Jackson v. Mixon, 110 La. 581 , 34 So. 695 , the syllabus of the court states: “Persons who are not the owners, of record or otherwise, of property assessed and sold for taxes, and who have thereafter acquired no title to the same, have no interest or standing to prosecute a suit to annul the sale.” I think that the judgment of the district court should be affirmed. LE BLANC, J., joins in MaCALEB’S dissent.