Bolling v. Smith, 79 Ala. 535

79 Ala. 535 | Ala. | 1885

OLOPTON, J.

The application of the personal representative to the Court of Probate, for an order to sell the lands of the estate of Augustus Thompson, on which the plaintiff’s title rests,contains the allegation, “that said lands can not be fairly, equally and beneficially divided among the heirs and distributees of said deceased, without a sale thereof.” After the proceedings in the Probate Court have passed the domain of pleading, and ripened into a decree and sale, a liberal construction will be given to the petition, and every intendment in favor of its sufficiency made for the maintenance of the validity of the sale.—King v. Kent, 29 Ala. 542; Pollard v. Hanrick, 74 Ala. 334; Whitlow v. Echols, 78 Ala. 206. The allegations of the petition, although not in verbal conformity with the statute, are of equivalent import, and sufficient on a collateral attack. Satcher v. Satcher, 41 Ala. 26. Jurisdiction having attached by the filing of a sufficient application, subsequent errors and irregularities can not affect the validity of the sale.

The deed of the judge of probate, to lands sold for the nonpayment of taxes, to the purchaser on default of redemption, if substantially executed as required by the statute, and recorded in the proper record of titles to real property, is prima facie evidence of the facts recited therein, in all the courts of this State, in all controversies and suits in relation to the rights of the purchaser, his heirs, or assigns, to the lands thereby conveyed. — Acts of Ala. 1868, § 87; Code of 1876, § 460 ; Acts of Ala. 1884-85, 59. The statute is in abrogation of the common-law rules of evidence, and compliance with its requisitions is preliminary and necessary to the competency of the deed. Substantial execution in accordance with the provisions of the statute, and registration in the proper record of titles, are essential to the admissibility of the conveyance, as evidence of its recitals. The bill of exceptions, which purports to set out all the evidence, does not disclose any proof of the record of the deed in the proper record of titles. In the absence of such evidence, or of proof aliunde of the sale, the deed is not admissible; and its recitals, in such case, are not prima facie evidence of the sale of the lands for taxes.

In Jones v. Randle, 68 Ala. 258, we held, the statutory bar to actions for the recovery of real property sold for taxes does not begin to run prior to the time the deed is executed by the judge of probate to the purchaser. The contestation was, whether the statute commenced to run from the time of the sale by the tax-collector. In Lee v. Lassiter, 68 Ala. 287, the question was, whether, the sale being void, this would preclude or stop the running of the statute of limitations, and it was held it would not. The deed had been recorded. In Pugh v. Youngblood, 69 Ala. 296, it was held that, although a conveyance of lands sold for the non-payment of taxes may not recite facts which would support the sale, it constitutes color of title, and adverse possession under it, for the period prescribed by the statute, will bar the entry of the true owner. In Mills & Hooper v. Clayton, 73 Ala. 359, it was held, if the purchaser takes possession under a tax-deed, or, having previously taken possession, he continues his possession under such deed, the statute of limitations is put in motion in his favor, from the date of his possession under, the deed. In neither of these cases was any question made on the necessity of the record of the deed, and the cases must be restricted to the questions raised in each case. The rule on which each cáse rests is, that the statute commences running from the final, consummating act of sale ; and the rule deduced from them is, that the statute commences running from the date, when, no matter by whom the action may be brought, — whether by the purchaser, or the original owner, — an inquiry can be legitimately and properly made as to the validity of the sale. The design of the statute is to allow, as the period for testing the validity of the sale, five years, and five years only, from the time a judicial inquiry can be had. The pivotal question, as to the commencement of the operation of the statute — the determinant time — is, when was adverse possession taken, or continued, under a deed of the judge of probate, which authorizes an inquiry into the validity of the sale, in <a suit for the recovery of the land, whether brought by the purchaser, or the original owner.

Section 87 of the revenue law of 1868, as embodied in section 460 of the Code, provides, that the deed shall be signed by the probate judge in his official capacity, and acknowledged by him before some officer, authorized to take acknowledgments of deeds; and when substantially thus executed, and recorded in the proper record of titles to real property, shall vest in the purchaser all the right, interest, and estate of the former owner, in and to the land conveyed. The title and estate of the original owner are divested, and passed to another, by statutory proceedings merely; and to have this operation, they must strictly conform to the provisions of the statute. The statute is, also, in part enabling, providing a mode by which the purchaser may complete his title — “recorded in the proper record of titles to real property.” The certificate of purchase is assignable, and until there is a record of the deed, no means are furnished, by which the original owner may certainly ascertain the adversary claimant. Whatever may have been the reasons, it suffices, that the legislature deemed it more protective of rights, to make the passing of the title and estate of the former owner dependent on the record of the deed, following its substantial execution. As no title was, or could have vested, until the deed was recorded, the statute of limitations of five years could not commence to run prior to its record, in favor of, or against the purchaser. Our statute is, in this respect, a substantial copy of the Iowa statute; in construing which, it was said, Eldridge v. Knehl, 27 Iowa, 160, which is cited approvingly, and followed in Jones v. Randle, supra: “Under our statute, the title does not vest in the purchaser, until the deed be ‘executed and recorded in the proper record of titles.’ When that is done, and not till then, will the statute begin to run. In other words, we hold that ‘ five years from the day of sale’ means a eompleted sale, which vests the title in the purchaser.”

The charges of the court, on the statute of limitations, are in conflict with these views.

It may not be improper to remark, that the revenue law of 1884-85 makes a different provision as to the time when the statute commences to run, which we have not considered, as this case is not governed by its provisions.

Reversed and remanded.