This is a suit to annul a tax sale. The plaintiffs were delinquent taxpayers, and the property involved in the suit was sold for the nonpayment of state taxes for the year of 1919.
The alleged grounds of nullity are that the sale was not preceded by full thirty days' advertisement thereof, and that the purchaser of the property at the tax sale was *Page 170 an employee in the tax collecting department of the municipality of New Orleans.
The property was sold for taxes on August 7, 1920, but the deed was not recorded until October 22, 1920.
Plaintiffs' suit was filed on October 18, 1923. On October 26, 1923, defendant filed an exception to the suit upon the ground that on March 24, 1922, he had sold the property to Third District Land Company, Limited. On November 9, 1923, the plaintiffs filed a supplemental petition and made the Third District Land Company, Limited, a party in the suit.
An exception of vagueness, a second supplemental petition, and the answer of the Third District Land Company, Limited, were filed in the order named. The answer puts several of the averments of the petition at issue, but it is not necessary to consider these defenses, for the Third District Land Company, Limited, seems to rely solely upon its plea of prescription (the constitutional prescription of three years applicable to tax sales), and the decision of the Court of Appeal is specifically based upon that plea.
The exact question presented for our consideration is whether or not the filing of a suit within the prescriptive period against a tax purchaser who, prior to the suit, has sold the property to a third person, bars the record owner of the property from invoking the constitutional prescription applicable to tax sales. The question does not appear to have heretofore been presented to this court. In passing upon it, the Orleans Parish Court of Appeal held, quoting from the syllabus, that:
"In order to interrupt the constitutional prescription of three years in favor of tax sales suit must be brought against the record owner of the property within the prescriptive period. A suit against the tax purchaser who has previously sold the property will not suffice."
In this case plaintiffs filed suit against the tax purchaser four days before the expiration *Page 171 of the three-year prescriptive period. Four days after the prescriptive period had run, the defendant filed the exception mentioned supra, and, on the 9th day of the following month, the plaintiffs, by supplemental petition, made the Third District Land Company, Limited, a defendant in the suit.
Mr. Joseph Ebert, president of the Third District Land Company, Limited, testified on the trial that his company acquired the property sued for from R.M. Taylor, in good faith, and for a valuable consideration, in 1922; that it took actual possession of the property, under its deed from Taylor; that its possession has been continuous; that it has paid the state and city taxes assessed against the property since 1922; that it rebuilt the fence around the property, and, since March 25, 1922, one Jack Mass. has occupied the property as tenant of the company. Taylor testified that when he acquired the property at tax sale it was not fenced and no one was in actual possession of it.
This court has uniformly held that the record owner of the property is a necessary party to a suit to set aside a tax sale of the property. It follows that the rule should be even more strictly adhered to when it is shown, as has been done in this case, that the record owner is and has been in actual possession of the property for several years, during which time every indicia of ownership has been publicly manifested by it.
The second paragraph of section 11, art. 10, of the Constitution of 1921, follows:
"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 [it] 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 three years from the date of the recordation of the tax deed, if no notice is given. The fact that taxes were paid on a part of the property sold, prior to the sale thereof, or that part thereof was not subject to taxation, shall not be cause *Page 172 for annulling the sale as to any part thereof on which the taxes for which it was sold were due and unpaid, provided that the provisions hereof shall not affect any pending suit, nor any suit, which may be brought within a period of twelve months from the date of the adoption of this Constitution, in which any tax sale is sought to be annulled for any of said causes."
There are but two modes of interrupting prescription, viz. the natural and the legal. C.C. art. 3516.
"A legal interruption takes place, when the possessor has been cited to appear before a court of justice, on account either of the ownership or of the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not." C.C. art. 3518.
In the case of Rady v. Fire Insurance Patrol, 126 La. 273, 52 So. 491, 139 Am. St. Rep. 511, it was held that:
"Prescription is not interrupted by the service of citation on a day of public rest other than Sunday."
The Third District Land Company, Limited, was impleaded in this suit and citation was served upon it more than three years after the tax deed to R.M. Taylor was recorded, and the record shows that the only relation existing between Taylor and said land company is that of vendor and vendee of two lots of ground for a cash consideration. The deed from Taylor to the land company had been of record several years before plaintiffs' suit was filed. Under these circumstances, we think it would require a stretch of the imagination to hold that the interests of R.M. Taylor and the Third District Land Company are so intimately identified that they may be considered as substantially the same parties, and, as such, a timely suit against one of them would interrupt prescription which had run in favor of the other before the latter was impleaded.
For these reasons we think the judgment of the Court of Appeal is correct. It is therefore *Page 173 decreed that the writ herein be and it is hereby discharged.
OVERTON, J., concurs in the decree.
ROGERS, J., dissents.
On Rehearing.