| Ala. | Nov 15, 1890
We need consider but one question in this case. Did the Oirciiit Court err in excluding as evidence the deed offered by the plaintiffs ?
The deed embraced the lands in controversy, and bore the date June 8th, 3877, being based on a tax sale made April 5th,. 1875. It was signed by the probate judge in his official capacity, acknowledged before an officer who was authorized by law to take acknowledgement of deeds, and recorded on January 31st, 1881, in the office of the probate judge — all in strict accordance, thus far. with the requirements of section 460 of the Code of 1876, which was the law in force at the time of the transaction. The deed was also executed in substantial compliance with the form prescribed for tax deeds in section 459, except in one particular, which, in our opinion, is completely fatal to the validity of the paper.
The statute invests the probate judge with the authority to execute a tax deed, only to the following classes of persons: (1) to the original purchaser at the tax sale; and (2) to the.
The deed, among other things, recites the death of Matthew Alexander, the original purchaser at the tax sale, as having occurred on April 21st, 1876; and the conveyance is made jointly to the three administrators of said decedent, by name, “for the use of the heirs.” One of the said grantees having died, her personal representative is made a party plaintiff in this suit, in connection with the other two grantees, as co-plaintiffs.
Under this state of facts, the deed was clearly void for the want of authority in the probate judge to execute it to the administrators of the deceased purchaser. As grantor, this officer was acting under a limited statutory power. A tax deed made to one substituted for the purchaser, or to any grantee other than one sanctioned by the statute, is void. The statutory authority to convey must be strictly pursued by the probate judge, and the deed made only to those to whom he is authorized bylaw to execute it. — Burroughs on Taxation, § 118; Keene v. Houghton, 19 Me. 368" court="Me." date_filed="1841-06-15" href="https://app.midpage.ai/document/keene-v-houghton-4927414?utm_source=webapp" opinion_id="4927414">19 Me. 368.
The last will and testament of Matthew, which appears in the bill of exceptions, shows that the plaintiffs, who were grantees in the tax deed, were not devisees under the provisions of that instrument.
The deed conveyed no title whatever to the plaintiffs, and was therefore properly excluded, unless it was admissible as color of title to define the boundaries of plaintiffs’ possession, when they claim to have entered under it —Hughes v. Anderson, 79 Ala. 209" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/doe-ex-dem-hughes-v-anderson-6512355?utm_source=webapp" opinion_id="6512355">79 Ala. 209; Stovall v. Fowler, 72 Ala. 77" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/stovall-v-fowler-6511452?utm_source=webapp" opinion_id="6511452">72 Ala. 77.
The alleged possession of the plaintiffs, acquired by getting timber off the land, paying taxes on it, and excluding intruders, without actual occupancy, scarcely rises to the dignity of such a possession as would authorize a recovery of the premises from the defendants,-without other additional proof than mere-color of title. But, conceding that-it was sufficient to authorize a recovery against a mere trespasser, on the principle announced in Green v. Jordan, 83 Ala. 711; 3 Amer. St. Rep. 711; Wilson v. Glenn, 68 Ala. 383" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/wilson-v-glenn-6511007?utm_source=webapp" opinion_id="6511007">68 Ala. 383, and other cases holding that doctrine, there is no evidence in the record that the defendants were trespassers, and we can not assume this as true for the purpose of pfitting the Circuit Court in error. The plaintiffs, having introduced evidence of the fact of the defendants’ possession, to put the court in error, and render the tax deed prima facie admissible, they should have gone further, and
The other rulings are free from error, and, in fact, become immaterial in the view we have above taken of the case.
Judgment affirmed.