Crebs v. Fowler

42 So. 553 | Ala. | 1906

Lead Opinion

ANDERSON, J.

— The complainant, Gaunt Creb-s, Avas not an assignee of the lien of the state under section 4102, Code 1896. as said section treats a purchaser from the state as “the assignee of all taxes due upon the land, penalties,” etc., only upon the condition of a complance Avith the two preceding sections. Section 4100 does not authorize a sale for a sum less in amount than Avould be necessary to redeem under section 4091. As the sum paid for the land ivas less than is authorized by the statute, the sale to the respondent was void, and he had no valid assignment of the state’s lien.

It is contended by counsel that the sale was made under Acts 1898-99, p. 120, which authorizes a sale for a sum less than is required by section 4100 of the Code of 18°-6, and that said section is necessarily repealed by the act. Whether said section is repealed or not, Ave need not determine, since it would avail the respondent nothing, in the case at bar; for, if it was repealed, the sale to him complied neither with the said section nor the act in question. Section 4 (page 121) of the act provides “that upon application for' the purchase of real estate under this act, the auditor shall notify the former oivner thereof, and give him sixty days time after such notice in which he may redeem.” The notice purports to have been given under section 4100, and ivas dated January 11, 1904, and the deed ivas made to the respondent February 12, 1904, less than 60 days, and was viola-tive of the act of 1899. The respondent is, therefore, in no position to complain of the decree of the chancellor, which is accordingly affirmed.

Affirmed.

Weakley, O. J., and Tyson and Simpson, JJ., concur.

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Rehearing

ANDERSON, J. (On Rehearing.)

— Our attention has been called to the revenue law of 1903 (Acts 1903, p. 195), which provides that the auditor may fix a “reasonable time” in which the land may be redeemed, and counsel insist that 60 days’ notice was not required under said statute. Conceding that 60 days’ notice was not required, and that a shorter time might be reasonable, it can be of no benefit to^ the appellant, Crebs, in the case at bar. The last act authorized a sale only in case “such lands are not redeemed within the time so fixed.” The notice of the auditor' was dated January 11, 1904, and. informed the owner that she would have “sixty days from writing this notice” in which to redeem the land. It must, therefore, be observed that the auditor fixed 60 days, which he doubtless deemed a “reasonable time,” as provided by the act of 1903, notwithstanding less time might be reasonable, and had no right under the law to convey the land until the expiration of 60 days, being the time fixed by him as reasonable in this particular instance. The deed was executed by the auditor February 12, 1904, nearly 30 days before the expiration of the period fixed by him for the redemption of the land. The sale was prematurely made, "whether attempted under the Code or the acts, and did not make Crebs a.n assignee of the state’s lien under the terms of section 4102 of the Code1 of 1896.