#### STATE ex rel. PHŒNIX HOMESTEAD ASS’N v. CITY OF NEW ORLEANS.

No. 16446.

Court of Appeal of Louisiana. Orleans.

Oct. 5, 1936.

E. M. Robbert, City Atty., and Henry B. Curtis, Asst. City Atty., both of New Orleans, for appellant.

Delvaille H. Theard, of New Orleans, for appellee.

McCALEB, Judge.

Wm. W. Noble was the owner of certain real estate situated in the city of New Orleans bearing municipal No. 500 Lower-line street. In the year 1935 he sold this property to the Phoenix Building & Homestead Association. The city real property taxes for the years 1930, 1931, 1932, 1933, 1934, 1935, and 1936 were past due and unpaid, and the real estate had been adjudicated to the city in 1933 for nonpayment of the 1930 tax levy. On April 16, 1936, the Homestead, availing itself of the provisions of Act No. 161 of 1934, as amended by Act No. 14 of the Fourth Extra-Ordinary Session of 1935, redeemed the property from the city of New Orleans by paying the taxes for the year 1930, and forthwith applied for city tax research certificates, which disclosed that the city had recorded tax liens against the property for the nonpayment of taxes for the years 1931 through 1936. The Homestead demanded cancellation of the tax liens, claiming that under the provisions of Act No. 161 of 1934, as amended, it was entitled to have all subsequent tax levies canceled upon paying the taxes for the year for which the property was adjudicated to the city. The city refused, and thereupon the Homestead instituted this mandamus proceeding for the purpose of compelling the city to cancel the assessments of taxes levied by it for the years 1931, 1932, 1933, 1934, 1935, and 1936.

The city appeared and filed an exception of no cause of action, which was overruled, and the district court judge granted the relator relief as prayed for. Wherefore this appeal.

On argument and in brief here the city attorney concedes the correctness of our decision in the case of State ex rel. Huggett v. Montgomery, 167 So. 147. This decision has been recently approved by the Supreme Court in the case of State ex rel. Tulane Homestead Ass’n v. Montgomery, - So. -1 (not yet reported). Accordingly it is admitted that the relator is entitled to have the tax levies for the years 1934, 1935, and 1936 canceled.

It is also conceded by the city attorney that the tax levy for the year 1931 is prescribed by virtue ■ of article 19, § 19, of the Constitution of 1921, and that the relator is entitled to the relief as prayed for as to that year.

However, the city contends that under our decision in the Huggett Case, supra, the tax levies for the years 1932 and 1933 are due and exigible and that the judgment of the district court should be reversed as to the tax assessments for those two years. • Counsel for relator claims that those taxes were entinguished by confusion because the city became the adjudicatee of the property at the tax sale and therefore could not owe itself taxes under the provisions of articles 3277 and .3411, Rev.Civ.Code. But this same point, involving taxes for the same years, was presented to the Supreme Court in the recent case of State ex rel. Tulane Homestead Ass’n v. Montgomery, supra, and decided adversely to the relator’s contention.

*826Similarly, relator contends that the taxes for the year 1932 are prescribed, but the Supreme Court, in the Tulane Homestead Ass’n Case, held that prescription was interrupted by the Legislature when, at its regular session in 1934, it adopted House Concurrent Resolution No. 2, providing for the temporary suspension, until October 31, 1934, of the operation of all laws relating to seizure, advertisement, and sale of property upon which delinquent taxes were due, and particularly section 60 of Act No. 170 of 1898, as amended 'by Act No. 315 of 1910, § 4.

Therefore it is ordered, adjudged, and decreed that the judgment of the district court be so amended as to deny relief to the relator, in so far as his action is directed against the city of New Orleans for the cancellation and erasure of the tax liens for the years 1932 and 1933, and, as thus amended, the judgment is affirmed, relator to pay all costs..

Amended and affirmed.

1

 Rehearing pending at date of publication.