New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-03-10

sale. Take the case of the judgment
creditor. The debtor, by collusion with the
purchaser, might divest himself of title co
- to deprive the creditor, unless the latter
has the right to redeem, and thus dlsencuI1.
Der the land and subject it to bis lien. 1t
may therefore be laid down % general
rule. that any right, whether in law or in
equity, whether perfect or inchoate, whether
in possession or action. amounts to an own.
ership in the law. and that o charge or lien
upon 1t constitutes person claiming It as
owner, as far as it 10 necessary to give hlm
the right to redeem" Blackwell on Tax
Sales. 423. This doctrine is drawn by the
author from many different authorities.
In the civil law a mortgage is considered
to be species Of alienation, though not .
sale, a real right upon property. species
of pledge, the thing mOrtgaged being bound
for the payment of the debt or the fulfill
ment of the obligations; the right of mort
gage follows the property into whatever
hands it may pass, the mOrtgagor can do
no act to impair this right. c. c. 3278, 1919,
1882, 1897; 9 A., l6S; ii A., Is; II A., T6;
- A.. 2, II L., 408.
Counsel for the purchaser do not deny
this Interpretation of the word ''owner,"
and admit that from lS47 to 1873 the laws of
the State on this subject permitted any
person interested in any land to redeem it
when sold for taxes; but they contend that
the act of 1873 mo. Az, under which this
sale was made, limits the right Of redemp-
ton to the "Owners thereof, or their legally
authorized agents." and by section eleven
of said act all laws or parts of laws conflict
ing with that act are repealed; and they
say "the deduction ia inevitable that the
Legislature intended by this last act to take
away from creditors and all other parties
interested, except the owner, the right of
redemption which they had previously
enjoyed"
Our deduction does not go so far as coun-
sci seem to go. If a MORTGAGE is a species
OF Owner-a quasi Owner-he ia embraced
in the exception they name; that is, the
express words Of the law But IS redemp-
ton laws are to receive liberal interpreta
ton, and as the act of 1873 does not ex-
pressly exclude mortgages, we do not think
their rights, rs they existed prior to 1873,
are so In conflict with those preserved in
said act "A to be embraced in the repeating
clarse. We think it should very clearly
appear before we adopt the conclusion that
the State, which has declared that the prop
er'y OF the debtor is the common pledge OF
all his creditors, intends by the process Of
collecting the contributions of its citizens,
W ucAcdt absolutely ali buo IISuGS VI cKculu-
Ors upon property subject to these cOntri-
buttons. The right of the State to its neces-
sary revenue is paramount, but it is to be
exercised with q strict regard for those other
rights which the State itself has granted or
guaranteed, especially the rights Of parties
not delinquent, unless it expressly declares
otherwise, for exigenciss which make the
declaration necessary. The sole object of
the State is to collect it's revenues, and not
TO destroy rights, further than il absolutely
necessary to effect such collection; and the
right to redeem, We think. still exists in the
owner, or quasi owner, under the prescribed
conditions.
The next question presented 10. did the
plaintiff assert this right in time and in q
manner to secure its enforcement! He re-
lies on q tender which contends he duly and
legally made before the expiration Of the
six months following the sale. 1t was for
mally made through q notary public, at the
residence of the purchaser, who was, how.
ever, absent at the tiEe from the State.
The purchaser says this was insufficient,
because he resided at the time, and to the
knowledge of the plaintiff, and was then,
In West Virginia, because no consignment
Of the money was made, and because he
subsequently offered to receive the money
and anuul tho sale to him, but the plaintiff
refused his offer.
TIE evidence shows that the purchaser
has a residence both in New Orleans aud in
West Virginia, spending large portion of
the year in Now Orleans attending to mer-
cantilo and other business. Under the cir
cumstances we think the offer of plaintiff
was made properly at the residence here, it
not appearing that The purchaser had an
agent to represent him in such matters C..
P. 4O6, 4O7; e. C. el6S, No. 6.
1t is said by the purchasers counsel that it
is unnecessary to determine whether or not
the tender at the house Of the purchaser
was good, as it was not consigned by the
plaintiff, and when acceptance Of it was
afterward offered, the plaintiff refused to
pay.
The objecto OF cons gnment is to exonerate
the debtor from further liability and risk,
and the failure to mako it does not defeat
the legality of a tender. The law says a
may DO made, out does not
make it essential in case the creditor re-.
fuses. c. p, 4l2; G. c., 2l67. The plaintiff
should not, under the circumstances, be
concluded by his refusal to paw when the
purchaser offered to accept. The latter had
sold to third party, who did not Join in
the proposal, and who might have refused
to concur, as the time for redemption had
expired and the purchaser denied plaintiffs
right to make a tender and redeem the land,
BE- we'll as the regularity and effect of the
tender as made. There was room for doubt
upon this matter as legal question, and
plaintiff had already submitted it to court
IF justice.
We conclude that plaintiff, as MORTGAGE,
has the right to redeem, and that upon
paying the purchaser the price and interes
Is prescribed by the act of 1873, the sale
will be annulled and the property subjected
TO the mortgage sought to be enforced.
1t is therefore ordered that the Judgment
appealed from be reversed, and that upon
The plaintiff paying to defendant, H. Shop.
nerd, the sum Of $500 or, the purchase
)ri0h with fifty per cent additional and all
SOC poured By said Shepherd as pnr-
,hl the tax sale of February 3. 1875,
rotaB. Morgan, tax collector, to Henry
Shepherd, and all subsequent sales of said
property be annulled, and it is further or
Tered that the plaintiff have judgment
Joseph Deywoodt, for $33,75O. with eight
Ter cent interest on $l675 from January 4,
S73, and on like sum from January 4, 1874,
With five per cent on the total of principal,
md interest for attorneys fees, costs of
opies of notarial acrs and costs Of protest,
With vendors privilege and mortgage on |
he said property described in plaintiffs pc
ition. the defendants and appellees to pay
0sts in both courts.
Superior District Court.
State ex rel. Ernest N. Lube va Admin
strator Pillbury and city of New Orleans.
The Injunction in the case of the State
atiOnal Bank vs.. the city was sufficient
nswer to the demand of the plaintiff The
ity can not be compelled to take police |
'arrants in pay ment Of taxes when it has !
verpaid the proceeds of collection of taxes
Or that purpose. Rule for mandamus dis !
Kissed. |
Superior Criminal Court. |
SENTENCED.
Burglary-George Walker, alias VIII
ans. three years hard labor.