68 So. 41 | Ala. | 1915
Section 710, so far as presently important, reads: “Upon the city treasurer calling upon the city clerk for executions as hereinbefore provided it shall be the
That doctrine was set down in the following, among other, decisions of this court: Pollak v. Milam, 190 Ala. 596, 67 South. 381; McKinnon v. Mixon, 128 Ala. 612, 29 South. 690; Oliver v. Robinson, 58 Ala. 56; Smith v. Cox, 115 Ala. 503; 22 South. 78; Reddick v. Long, 124 Ala. 260, 265, 27 South. 402; Johnson v. Harper, 107 Ala. 706, 708, 18 South. 198. It has also been repeatedly ruled that, as said in Johnson v. Harper, supra: “In the sale of lands for taxes, great strictness is required. To divest an individual of his property against his consent, every substantial requirement of the law must be complied with.” — Dane v. Glennon, 72 Ala. 160, 163; Oliver v. Robinson, supra; Reddick v. Long, supra; Clarke v. Rowan, 53 Ala. 400; Pollak v. Milam, supra; Childress v. Calloway, 76 Ala. 128, 134.
There is no reason why the stated rules should not have like application in cases where the purpose and effort was to divest the title of the non-consenting individual owner in order to satisfy a charge for street improvements, provided, of course, some other inconsistent, applicable rule is not expressly made to govern in the premises. In each instance the property is undertaken to be subjected in furtherance of governmental activities and under governmental authority. The
Apt analogy for this conclusion is found in the cases of Crebs v. Fowler, 148 Ala. 366, 42 South. 553, and Harton v. Enslen, 182 Ala. 408, 413, 62 South. 696. There the prescription was for notice to the former owner, or to his successors to the privilege, that he might have the opportunity to redeem the property and thus avoid its sale by the state to an applying purchaser. It was ruled that the notice, and the opportunity predicated of it, was a condition precedent to the right of the state to sell; and that the purchaser took no title under a conveyance from the auditor if the notice required was not given by the auditor. Here the case for the owner is stronger in this: That here Drennen’s title had not been divested when the prescribed demand should have been made upon him, whereas,.in the tax cases cited, the title had been divested and opportunity to redeem was the legislative concern.
Now the only evidence we see bearing upon this matter of a demand by the treasurer upon Drennen is that of the treasurer, Eustis. His testimony is to the uncontradicted effect that he had the executions, from the city clerk, in his hands (they having already been issued) when the conversation he details with Drennen was had. So there is no evidence that the prescribed demand was made as sections 709 and 710 contemplated. There is no presumption that it was made by the
The decree appealed from is therefore affected with error. It must be reversed in toto. In the posture the cause and 'its parties- are put by this conclusion, it is desirable, if not necessary, that the cause be remanded for further proceedings below, not inconsistent with this opinion.
Reversed and remanded.