• On the Merits.
The nullity of the tax sale is claimed on various grounds affecting the proceedings for both the assessment and collection of the tax. A brief review of some of the principal provisions of the law touching the assessment and collection of taxes will be a useful introduction to the-consideration of these questions.
Act No. 42 of 1871 was the law governing the assessment.
The tax collector i's required to serve upon the taxpayers printed or written notices, requiring them to make a statement of the objects of taxation owned or controlled by them. Sec. 23/
*525It appears on the record that in 1871 such a notice was addressed to “ L. H. Stafford, Elam & Wemple, agents.” There was no such person as L. H. Stafford, so far as the record shows, and Elam & Wemple were not agents for such person. Nevertheless they accepted the notice and made a return thereon, in which they gave a description of the very property now in dispute, and expressly stated that it was the taxable property of the succession of L. A. Stafford.
This fact is of the utmost importance, because the taxes for which these lands were sold were those of 1871,1872 and 1873, and the information as to the ownership was furnished in connection with the assessment of the tax for the first of those yeafs. It left no excuse for any misnomer or misdescription in any subsequent proceedings.
If the owner’s name be known, the assessment must designate such name. Sec. 32.
If the property be assessed to some person in a representative capacity, that agency must be noted. Sec. 30.
If the name of the owner be unknown, the word “ unknown” shall be entered in the column of names. Sec. 33.
If a valid assessment be made, before the property can be validly sold, the following necessary requisites must be complied with:
1st. There must be a public notice in the manner and during the time required by law.
2d. There must be a failure to pay thetax within ten days after the expiration of the foregoing notice.
3d. The collector must then give ten days written notice to the ■owner or agent to pay the tax.
4th. After this delay, if not paid, the collector must make a seizure -of the property by recording a description of the same with the amount due, in the parish mortgage book.
5th. On the fourth day after such recordation, he must advertise the sale by publication for ten days.
6th. After the expiration of said publication, the collector may sell.
See Act 47 of 1873.
Fischel vs. Mercier, 32 An. 704.
The record leaves it doubtful how far the requirements relative to the assessment of the property were complied with. We find in evidence two extracts from the recorded assessments, one of which mentions the property as that of “ succession of L. A. Stafford, Elam & Wemple, agents;” the other as that of “ L. H. Stafford, Elam & Wemple, agents.” Neither of them is dated, nor does the recorder’s certificate furnish the date of record.
The delinquent tax-rolls for 1871 and 1872, as found in the record, *526return the property and the tax as assessed against “ L. H. Stafford, Elam & 'Wemple, agents.”
The evidence altogether points strongly to the conclusion that they were so assessed, at least in some of the years.
If they were so assessed, the assessment thus made, in violation of the plain rules laid down in the law, and which we have quoted, and especially after a return has been made showing the true ownership, would be a patent nullity.
If on the other hand, they were properly assessed as the property of the “ succession of L. A. Stafford,” then this removed all possible excuse for the errors in the proceedings for sale, which we are about to point out.
The written notices, both as to the State and parish taxes, required 'to be given to the owner or agent, were addressed to “B. S. Lee, agent for L. H. Stafford of the parish of Red River.”
The seizure by recordation describes the property as “ seized as the property of L. A. Stafford.”
The tax collector’s deed recites that the property, fully described, was exposed for sale, “ the same having been seized for the payment of taxes due by L. A. Stafford as owner thereof according to the tableau and assessment rolls for the year 1873.”
The Auditor’s deed, executed after the period allowed for redemption had expired, recites, amongst other statements, that “whereas, the said H. J. Twitchell did. * * seize and sell at public auction the following described-property * * being the property of L. A. Stafford, as per assessment roll, etc.,” and “ did * * execute an act of sale transferring unto the said Steele and Twitchell, in the name of the State of Louisiana, all the right title and interest of said L. A. Stafford in and to the afore-described property, etc.” “Now, therefore, I, Auditor * * do hereby ratify, and confirm * * unto said Steele and Twitchell * * all and singular the afore-described property and all the right, title and interest which the said L. A. Stafford has or had in and to. the same.”
Applying the literal, strict and technical rules which govern the proceedings of assessors and collectors of taxes, and which, for the validity of tax sales impose a strict conformity to all the requirements of the statute authorizing the sale, the following propositions seem sufficiently clear, viz:
1st. An assessment of property in the name of L. H. Stafford or of L. A. Stafford, is not an assessment in the name of the owner, when L. H. Stafford was never owner, and when L. A. Stafford had been dead for ten years, when the property had been vested in his succession, and *527when that fact had been formally notified to the proper officers and was ascertainable from the archives of their own offices.
See Sulton vs. Calhoun, 14 An. 209.
2d. A notice addressed to “ B. S.. Lee, agent of L. H. Stafford,” is not a notice to the succession of L. A. Stafford, or to an agent of said succession.
3d. A seizure of property as “ the property of L. A. Stafford,” is no seizure as against the succession of L. A. Stafford, and the record thereof is no r.ecord against said succession.
4th. A sale'of property belonging to the succession of L. A. Stafford, as the property of L. A. Stafford and for taxes due by L. A. Stafford as owner, is inoperative against said succession.
See Concy vs. Cummings, 12 An. 748.
5th. A transfer of the right, title and interest of L. A. Stafford in property ten years after his death, operates no divestiture of the title of his succession.
We have thus far given ’the provision of article 118 of the constitution of 1868, directing that tax collectors’ deeds of sale “ shall be received by courts in evidence as prima fade valid sales,” the broadest possible effect. We have treated it as if it relieved the tax-purchaser from all other proof, and threw the whole burden on the owner attacking his title. We have held the defendants to no responsibility for failure to establish compliance with any required conditions, and have only signalized those defects which have been made to appear by affirmative proof.
It is quite doubtful whether the constitutional provision is entitled to so broad an effect.
It has been held that where the statute makes the deed “prima fade evidence that the requirements of the sale have been complied with,” it does not dispense the purchaser from proof that the statutory conditions precedent have been complied with.
Robson vs. Osborn, 13 Texas, 298.
Cooley on Taxation, 355.
So, where the statute made the deed prima fade evidence of the regularity of the sale.
Cooley on Tax, 355, and numerous authorities there cited.
So, where the statute made the deed evidence of title in fee-simple.
16.
It is only where the statute makes the deed “ prima fade evidence, not only of the regularity of the sale, but of all prior proceedings, and of the title of the purchaser,” that it has been given effect to change wholly the burden of proof. 16.
It is not, however, necessary that we should decide this question *528in the present case, where it has not been raised or argued, especially as it is one of great importance and far-reaching effect.
It is only necessary to advert briefly to the recognized principles governing the requisites to the validity of tax sales, in order to see that the defects heretofore pointed out and affirmatively established, are fatal to this sale;
The power of the tax collector to sell property, is a naked, special and statutory authority, created by and dependent wholly upon the statute, and subject absolutely to the conditions and limitations imposed by the statute. The power is purely arbitrary. The ' conditions and limitations placed upon its exercise, are imposed for the protection of adverse interests and as safeguards against abuse. Neither the tax collector nor the courts are allowed to disregard the rules prescribed by the statute, and to sell, or maintain sales, for taxes, made in a manner different from that prescribed by law. This would be the assumption, by the collector or the court, of legislative power, and would enable them to supersede the provisions of the law by substitutes of their own creation.
Chief Justice Marshall long since said: “That no public officer can sell, and convey a good title to, the land of another, unless authorized to do so by express law, is one of those self-evident propositions to which the mind assents without hesitation; and that the person invested with such a power must pursue with precision the course prescribed by law, or his act is invalid, is a principle which has been repeatedly recognized in this Court.”
Thatcher vs. Pervell, 6 Wheat. 119.
Amongst the conditions precedent to the power to sell, those the object of which is to charge the taxpayer with notice actual or constructive of the proceedings, whether in the assessment or collection of taxes, are the ones universally regarded as absolutely mandatory, and of which the most punctilious performance is required.
The deficiencies established in the proceedings under consideration, all relate to provisions of this character.
Actual knowledge, however clearly brought home to the taxpayer, cannot dispense with the necessity of such notices in conformity with the law; and no consent to their waiver can, in any ease, be implied.
Amongst the reasons which require a strict construction of; and literal compliance with, the law in the exercise of such powers, is specially assigned the danger of losing their estates, to which innocent persons are exposed. Thus it is said: “Guardians of estates of infants; executors in whom the estate is vested; agents entrusted with the payment of the tax; may fail to pay the tax assessed. These and many other cases .often happen, and the estates of innocent persons are thus divested *529without their knowledge. The possibility that the power to sell may be abused and injustice done in such cases, ought to require a strict construction of, and literal compliance with, the law.”
Blackwell, Tax Titles, p. 50.
See 4 La. 150, 207; 18 La. 514; 14 An. 209.
The instant case is thus seen to be one in which the observance of legal requirements is especially demanded.
It is not necessary that we should proceed further in enumerating the reasons upon which courts have acted -in enforcing strict performance of these powers, nor to cite particular eases in which these doctrines have been applied. They are announced in the treatises 'of elementary writers, and supported, by innumerable authorities.
» See Cooley on Taxation, chap. II.
Blackwell on Tax Titles — passim
Burroughs on Taxation.
We have found no case justifying the maintenance of a tax sale presenting such defects as those here established. • We have found cases innumerable in which such sales have been annulled on much less cogent grounds.
The eases of City vs. Ferguson, 28th An. 240, and of Irwin, Tutor, vs. City, 28th An. 670, are opposed, in principle, to the following cases:
Concy vs. Cummings, 12 An. 748.
Sulton vs. Calhoun, 14 An. 209.
City vs. Heirs of Schmidt, 10 An. 771.
City vs. Heirs of St. Romes, 28 An. 17
Delaroderie vs. Hillen, 28 An. 537.
Thibodaux vs. Keller, 29 An. 508.
Guidry vs. Broussard, 32 An. 925.
We think the dissenting opinion of Mr. Justice Wyly in the Irwin case is unanswerable.
Those decisions, however, even if maintained, would not cover, or cure, the defects in this case.
Exceptions.
The exception of defendants of improper joinder is not well taken. Our reasons for overruling it are sufficiently indicated in that part of our opinion relative to the removal of the cause.
A more important exception is based on the failure of the plaintiff to refund, or -tender, the taxes in payment of which the price paid by defendants was used.
We think this Court acted hastily and without sufficient consideration, in the case of Barrow vs. Lapene, 30 An. 310, in laying down the broad doctrine that .a party to a judicial or tax sale, seeking to annul it, must first tender to the purchaser the reimbursement of the sums paid *530by hint in discharge of his bid, and which enured to the benefit of the attacking party.”
We do not find this doctrine, as applicable to tax sales, sustained by authority.
In the absence of a special statute imposing such a condition, it has never been enforced in the other States, although the equitable doctrine referred to, as applied to voluntary and judicial sales, is as well recognized in such States as in this.
Even where such condition has been imposed by statute, grave doubts have been expressed as to its validity, and it has been construed with great strictness.
See Cooley on Taxation, 371 et seq.
In the case of Guidry vs. Broussard, 32 An. 926, we said: "We fail to see in this case what principle of equity would require the plaintiff to oiler to return an amount which she has never been assessed or adjudged to pay, for which payment has never been demanded of her, and a large portion of which accrued and was charged against her as damages caused by proceedings conducted in utter disregard of her rights and the requirements of the law.”
The foregoing is fully applicable to the case at bar; and we think the rights of the defendants are sufficiently protected in allowing them to set up their claims in reconvention, as they have done. If maintained, they would be protected in possession until satisfaction of their claims.
Under a different rule, the plaintiff illegally deprived of property, might be unable to raise the funds to make the tender in advance of Judgment restoring his property, while after such -judgment, the property would furnish security on which he might obtain the necessary means.
In adjusting the claims between the parties for rents and revenues on the one hand, and for taxes paid and improvements on the other, we encounter the usual conflict of testimony.
Plaintiff claims rents at the rate of $600 per annum from January 6th, 1874, until restoration of possession, amounting at the present time to more than $3600, exclusive of interest.
Defendants claim the taxes paid as price of sale and for subsequent years, amounting, exclusive of interest to......... .$1827 43
Value of improvements...................................... 1730 00
Total.................................................$3557 43
The judgment appealed from allowed the plaintiff $516 25 as excess of rents and revenues over taxes and improvements.
The plaintiff has asked in this Court for an amendment of the judg*531ment so as to allow §500 additional for revenues since the date of the judgment.
We are not favored with any statement by the judge a quo of the basis on which he founds his judgment.
We are satisfied from the evidence that the value claimed for improvements is grossly exaggerated, and should be largely reduced.
The collector’s fees, damages, and costs of advertising, recorder’s and surveyor’s fees, amounting to §338 15, paid by defendants as part of the price, were not due by the plaintiff, because the property had not been lawfully assessed, and he was not in default. The payment of them could not have been enforced by the State, and did not enure to plaintiff’s benefit.
We allow the actual taxes paid, because they were equitably due to the State and parish, and might have been enforced on re-assessment.
According to the defendants’ own calculation as formulated in the brief of counsel with proper interest calculations, allowing the plaintiffs rents at the rate of §500 per annum, they claim as due to them at the date of judgment in the lower court........>..................§1218 78
Deducting the above costs and penalties disallowed, with interest................................................... 410 00
Leaves claimed by defendants.............................. §808 78
This is more than absorbed by the proper reduction, which the evidence justifies, in the exorbitant claim for improvements. Oonsidering that plaintiff is at fault for the long delay permitted to elapse before asserting his rights, we are anxious not to err to the prejudice of defendants, and we have passed over some doubtful items in their accounts.
We feel very certain that in disallowing the prayer of plaintiff for the amendment of the judgment, and in simply affirming it as rendered by the court a qua, the defendants will receive ample justice.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s costs.