109 Ala. 217 | Ala. | 1895
The only question presented for decision in this case is whether the failure of the tax collector to append the statutory oath to the book or docket required to be delivered to the probate judge, by section 84 of the act of February 17th, 1885 (Code of 1886, § 567), invalidates a tax sale, where the real estate in question was assessed to “owner unknown.” If the assessment had been made against a known person, there can be no doubt the affidavit would be jurisdictional, as we have several times decided.— Wartensleben v. Haithcock, 80 Ala. 565; Fleming v. McGee, 81 Ala. 409; Riddle v. Messer, 84 Ala. 236; Feagin v. Kendall, 94 Ala. 597.
Section 61 of the act referred to, requiring a personal demand upon delinquent tax- payers wherever they may be found ; section 62, authorizing levies upon their personal property and sales after ten days’ notice by posting in the precinct in which the delinquent resides ; and section 83, declaring the jurisdiction of the probate court to order a sale of lands for the payment of taxes assessed against the owners thereof-when the collector shall report to the court that no personal property has been found sufficient therefor, — all have reference, in the very nature of things, to'cases in which the assessment has been made against the tax payer by name. An assessment of property as belonging to an “unknown owner” is not an assessment “against the owner thereof,” but is rather an assessment on or against the property. The oath required by section 84 to be made by the tax col
The circuit court erred in the ruling which induced the non-suit. We can consider no ground of objection to the deed except that specified by the defendant at the trial. No question was raised as to the propriety of the particular assessment having been made in the name of “owner unknown.” The act of February 17th, 1885, was carried substantially into the Code of 1886, in sections 460 etseq., and many sections of that act have been amended by another, approved-February 28th, 1887. Acts 1886-87, p. 1. This case has been decided without reference to the amendatory act passed subsequently to the tax sale under.examination.
Non-suit set aside, and judgment reversed. The cause is remanded.