The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1875-05-26
THE COURTS.
From Yesterdays Evening Edition.l
Fifth District Court.
AN IMPORTANT DECISION.

Fifth District Court.
AN ndPoRTANT DECISION.
Judge Cullom this morning rendered the
following most important decision, which will
be read with interest by, all:
James Oarran vs. Alex. Castaing. The
plaintiff being q mortgage creditor of the de.
fendant for $500, interest, attorneys fees,
etc, took out an order of seizure and sale
against the mortgage property, which is stu.
ated in this city.
The properly was sold and plaintiff has
taken rule on the city of New Orleans, and
on the Sheriff, to show cause why, on paying
taxes due the city, for the year A. D. 1875,
(sav $15O) the city should not give a receipt
for all taxes due by said property, and thereby
exonerate it from the onus of taxes due by
Castaing on other movable effects Carran ten
ders $3.50 taxes due on the property, which
he purchased, but the city having failed OF
neglected to collect the taxes assessed on
other property belonging to Castaing, seeks
now to compel the plaintiff and mortgagee to
pay them before he can get clear title to the
property sold under his mortgage.
Section 20 of the act approved March 16,
1870, provides "that the taxes assessed and
levied by virtue of this act on the property.
real and personal, of any person or corpora
ton, are hereby declared to be lien and
privilege upon said property, to date from
the first day of August Of the year for which
thew may be assessed, any alienation thereof
or encumbrance to the property thereon not
withstanding, and said lein or privilege shall
exist in favor of the city of New Orleans for
the respective amount of taxes assessed, until
the same shall be fully paid, and the same
shall be paid in preference to all mortgages
and encumbrances other than taxes due the
State" etc.
It is commended by the City Attorney that
this lien and privilege existing on the objects
assessed, if not paid, exists with equal force
and effect upon the real estate Of the delin-
ouent, To illustrate if A has capital in
trade of one million of dollars, which owes an
assessed tax of twenty-five thousand dollars,
and also owned house and lot assessed at
TWENTY-FIVE thousand dollars, on which B held
a mortgage antedating the assessment of
the tax on the capital, B cannot sell it under
his mortgage and get clear title on paying
the tax assessed on the mortgaged property,
without also paying in twenty-five thousand
dollars assessed on AS capit4l, or so much
thereof as the property may bring.
I understand the law differently; "the
taxes assessed and levied by virtue of this act
and on the property, real or personal, of any
person or corporation, are hereby declared
to be lien and privilege upon said property, "
etc. I think the just and consequently the
proper Interpretation to give this language is,
s'the taxes assessed on the real property are
declared to be lien and privilege on it, and
those assessed on personal property lien
and privilege thereon"
This view is strengthened by the fact that
the most powerful and promptly operative
remedies are placed in the hands of collectors
to enforce the punctual payment of all taxes
In point of fact, may say they are oppres-
sive, if not tyrannicaL Again, if the real
estate is to be inevitably encountered with ali
taxes on capital of personal nature it must
cease to furnish any basis of security to
LENDERS of money, and consequently become,
to q very serious extent, dead capital.
The power or authority to sell land for the
payment of taxes was never understood to
belong to the common law and therefore must
exist, if it does at all, by statute law and must
hence be special. It must grow out of the
sovereign prerogative of State and the very
letter Of the law, and must be strictly pur-
sued and should appear to be SO on the face
of the proceedings. Looking to the language
of the statute authorizing the collector to
enforce the payment of taxes, I find it almost
verbatim with that authorizing the Sheriff to
seize and sell under writ of f ia.
1t need not be argued that under the fl ia.
writ the duty of the Sheriff is first to seize
Inc D6ISOudl cu0CIS VI VIC uOOtOIs LIZ Atto
been remarked, and think with great reason,
that the evident intention of ''the law was to
make the tax charge upon the person of the
residents" (See Blackwell's Tax Titles, p. 175.)
and the statute declaring it lien on his
property has no other effect than to secure
its payment. The same author says: cit is
the policy Of the law to resort to the land
itself only when all other remedies fail to en-
force satisfaction Of the tax"
The person or personal estate of the de-
linquent is regarded as the primary, the land
the dernier resort The tax never becomes a
charge upon the land until the other remedies
have been Standardization, p. 1867 This is
the principle which commonly prevails in
the absence of any special statute to the con-
trary. Privileges are strict joris, and can not
be extended in any case !; but more especially
in one like this.
/ am of opinion that the intention of the
Legislature of this State was to charge the
property taxed with lien and privilege for
the payment of its assessment; that it was
not the intention to impose privilege on any
one species of property to secure the pay
ment of taxes assessed on another. Were the
reverse of this proposition true, as insisted
upon by the City Attorney, it would in very
many instances impair the obligation of con-
tracts and prevent the most ordinary use of
private property.
Purchasers of property are expected to pay
the taxes assessed on it, not because the
property owes them, but because the former
owner owed SO much on it. If the property
owed the tax, an assessment in the name Of
one not the owner would authorize its sale,
and the sale would be valid. But such is not
the law. ~ Missouri Rep, 1852.
Any other construction would oblige the
mortgage creditors of the delinquent tax payer
to pay ell the taxes due by him on every
species of property before he could be per-
mitted to collect his own debt, although Sc
cured by prior mortgage. The rule must
be made absolute on the plaintiffs payment
Of the taxes assessed against the property in
question for the year 1875.
Supreme Court.
Opinions in the following cases were read
this morning:
Citizens Bank vs.. Louis Much.
Succession of John Trainor and Mary
Kearney, his wife.
Mary Malady vs.. VIM. Malady ct ais.