214 La. 444

#### DOLL v. MEYER.

No. 38882.

Supreme Court of Louisiana.

April 26, 1948.

On Rehearing Nov. 8, 1948.

Rehearing Denied Dec. 13, 1948.

*70C. E. Loeb, of New Orleans, for Joseph T. Meyer, defendant-appellant.

Baldwin, Haspel & Molony, Emile A. Wagner, Jr., Harold Rouchell, Gauche & Wegener, Rene R. Nicaud, Albert E. Mou-lin, Mark W. Malloy, Johanna Palermo, Allain C. Andry, Jr. and Percival H. Stern, al of New Orleans, amici curiae.

Marion G. Seeber and Delvaille H. Theard, both of New Orleans, for Warren A. Doll, plaintiff-appellee.

FOURNET, Justice.

Joseph T. Meyer is appealing from a judgment ordering him to specifically perform his contract to purchase from Warren A. Doll Lots Nos. 1-14 in- Square No. 88, bounded by Tchoupitoulas, Religious, St. James, and Celeste streets in the City of New Orleans, together with the improvements thereon designated by the municipal numbers 1739 Tchoupitoulas Street and 505 Celeste Street.

This case was submitted under Section 8 of Article X of our rules while the court was in recess and the facts pertinent to a decision, according to the agreed stipulations of the parties, reveal that the- property forming the basis of the suit was, in default of individual bidders, adjudicated to the state in 1934 for the nonpayment of the 1932 taxes assessed in the name of Philip Romano. A patent to this property was issued to Warren A. Doll, the successful bidder when it was sold by the state at public auction on September 7, 1946, in accordance with the provisions of Act No. 237 of 1924, as amended by Act No. 296 of 1944. After failing to locate Romano or his heirs in an effort to buy out whatever rights they might have in and to the property, Doll, under the provisions of Act No. 106 of 1934, instituted proceedings that were carried on contradictorily with a curator ad-hoc appointed to represent Philip Romano and/or his heirs and secured a judgment on July 8, 1947, quieting his title to the property. On July 17 following, Meyer, by written contract, agreed to pur*71chase this property. When he later refused to accept title, Doll instituted this suit to compel the specific performance of the contract.

It is conceded by the defendant that no encumbrances or liens have been recorded against this property in the name of Doll. However, he takes the position that the title tendered him is defective and suggestive of litigation, and, therefore, not merchantable.

In Section 11 of Article X of. the Constitution of 1921, providing for the forfeiture and sale of property for the nonpayment of taxes, it is provided: “No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given. * * * The manner of notice and form of proceeding to quiet tax titles shall be provided by law.”

The legislature in following this mandate adopted its Act No. 106 of 1934 providing that the purchaser of property at tax sales can, after the lapse of three (as provided in Section 1) or five years (as provided in Section 3) institute suit by petition and citation as in ordinary actions against the former *proprietor*or *proprietors*of the property wherein such .former proprietor is informed, among other things, that title to the property will be quieted and confirmed unless a proceeding to annul is instituted within the required time of six months in the case of three years or ten days, in the case of five years. The act further provides that in the event the former proprietor "be a non-resident of the State, or unknown, or his residence be unknown, the court shall appoint a curator ad hoc to represent him and receive service.”

Obviously the procedure sanctioned by the constitution is for the purpose of quieting titles as to any defects or irregularities in the tax sale, other than prepayment of taxes. See, In re Quaker Realty Co., Ltd., 122 La. 229, 47 So. 536; Folger v. St. Paul, 130 La. 1082, 58 So. 890; Chapman-Storm Lumber Co. v. Board of Commissioners, 196 La. 1039, 200 So. 455; Third Dist. Land Company v. Lassere, 204 La. 451, 15 So.2d 850. It is also clearly contemplated that the suit is to be instituted against the proprietor or owner of the property. See, Slattery v. Kellum, 114 La. 282, 38 So. 170; In re Sheehy, 119 La. 608, 44 So. 315; Webb v. Shiflett, 168 La. 920, 123 So. 620.

Since it does not appear in the agreed statement of fact that Philip Romano was the proprietor or title owner of the property or that there was no dual assessment thereof, it necessarily follows that we cannot say the title being tendered the defendant is not suggestive of litigation and we will not, therefore, exercise the power vested in us to coerce the defendant into specifically performing the contract.

The case of Clayton v. Quaker Realty Company, 128 La. 103, 54 So. 486, relied on by the plaintiff as being decisive of the issues in this case, is authority only for the proposition that tax titles may be confirmed and quieted as to any defects in the tax sale when the suits are carried on contradictorily with the curator ad hoc appointed to represent the owner of the property by the court.

For the reasons assigned the judgment appealed from is annulled and set aside and the suit is dismissed.

O’NIELL, C. J., dissents.

On Rehearing

PONDER, Justice.

The property involved in this suit was adjudicated to the State in 1934 for the nonpayment of the 1932 taxes assessed in the name of Philip Romano, the then registered owner. A patent was issued conveying this property to Warren A. Doll, who successfully bid it in at public auction on September 7, 1946 in accordance with the provisions of Act No'. 237 of 1924, as amended. A suit was instituted and carried on contradictorily with a curator ad hoc, appointed to represent Romano and his heirs, under the provisions of Act No. 106 of 1934 and a judgment was rendered on July 8, 1947 *72purporting to quiet Doll’s title to the property. Shortly thereafter Joseph T. Meyer agreed to purchase this property from Doll. Upon the refusal of> Meyer to accept the title, this suit was instituted by Doll to compel the specific performance of the contract. Upon trial the lower court gave judgment ordering Meyer to specifically perform his contract. Meyer appealed from the judgment to this Court and, on hearing of the appeal, this Court annulled the judgment and dismissed the plaintiff’s suit. A rehearing was granted on the application of the plaintiff, appellee, and the matter has been submitted for our determination.

The only question urged by the plaintiff, appellee, as stated in his first' supplemental brief on rehearing, is whether or not the judgment of the trial court confirming Doll’s title to the property is res judicata as to all questions which were raised or could have been raised in the confirmation suit thereby forever debarring the former proprietor and his heirs from making any attack on the title .should they ever reappear.

The confirmation suit was brought under the provisions of Act No. 106 of 1934, which is designed to quiet tax titles in accordance with Section 11 of Article 10 of the Constitution of 1921. We pointed out in the case of Police Jury of Jefferson Davis Parish v. Grace, 182 La. 64, 161 So. 22, that the context of Article 10, Section 11 of the Constitution contains no reference to or provisions for sales or adjudications to the State and that this section of the Constitution has reference only to tax sales to third persons. We have again reviewed this section of the Constitution and are firmly convinced that it has reference only to what is properly termed tax sales, i. e., tax sales to persons other than the State. Act No. 106 of 1934 is designed to quiet tax titles in accordance with this section of the Constitution and its context leaves no doubt that it refers to tax sales properly and not to adjudications made to the State for want of a bidder. The judgment of the lower court purporting to quiet the title is of no effect because it is not authorized by law.

• Counsel for the plaintiff, appellee, has cited several decisions of this Court rendered before the adoption of the Constitution of 1921 which he claims are pertinent and contrary to the views expressed herein. These decisions were handed down prior to the adoption of the Constitution of 1921 and the passage of Act No. 105 of 1934. We see no necessity to review the articles of the prior Constitutions and the various acts of the Legislature in effect at the time these decisions were handed down for the reason that the constitutional provision, Section 11, Article 10 of the Constitution of 1921, which governs the present suit, was correctly interpreted in the Grace case and Act No. 106 of 1934 merely provides for the quieting of titles in accordance with, this provision of the Constitution.

It is contended that our holding in the case of Westwego Canal & Terminal Co., Inc., v. Lafourche Basin Levee District, 206 La. 270, 19 So.2d 133, in effect overruled our pronouncement in the Grace case. We have carefully reviewed the case relied on and do not find anything therein inconsistent with the interpretation placed on Section 11, Article 10 of the Constitution of 1921 in the Grace case or with the views expressed herein.

For the reasons assigned, our original judgment is reinstated and affirmed at the cost of plaintiff, appellee.

O’NIELL, C. J., does not take part.