68 Ala. 258 | Ala. | 1880
In the revenue law of 1868, section 92—Pamph. Acts, 327, Code of 1876, § 464 — it is provided, “that no action for the recovery of real property sold for the nonpayment of taxes,shall lie, unless the same be brought within five years after the date of the sale thereof for taxes as aforesaid, (anything in the statute- of limitations to the contrary notwithstanding)-,”' with a proviso in favor of minors and insane persons, who are allowed one year after the removal of their respective disabilities. Eevenue is- the life-blood of the-commonwealth, and it can be supplied only by taxation. The' government can not wait on slow and tedious- processes for the collection of its revenue, and hence the rules and rulings, statutory, and otherwise, which have established a separate- and peculiar system for the assessment and collection of taxes, and for testing the legality of the assessment.—Cooley on Taxation, 536; Ala. Gold Life Ins. Co. v. Lott, 54 Ala. 499; Mayor v. Baldwin, 57 Ala. 61; Elyton Land Co. v. Ayres, 62 Ala. 413; Nat. Com. Bank v. Mayor, Ib. 284; Underhill v. Calhoun, 63 Ala. 216. This statute was conceived in the-same spirit. The intention was to prescribe a short limitation for testing the validity of such sales, thereby encouraging purchasers, and forcing an early determination of their legality. Purchasers would take some risks, when they knew the fate of the adventure must be determined in a few years. They might hesitate, if delay and uncertain litigation lay before them — delay in the inception of the litigation,, and uncertainty in its- duration. This the legislature intended to guard against.
Passing from argument to adjudged eases, we find in several of the States statutes of limitation, similar to ours in their most important features. A statute of Pennsylvania declared that “ no action for the recovery of lands [sold for taxes] should lie, unless the same be brought within five years after the sale thereof for taxes.” In a very well considered case.—Waln v. Shearman, 8 Serg. & R. 357—the plaintiff in ejectment was the original proprietor of the land sued for, and proved title in himself. The defendant was in possession when the suit was brought, but had not been in possession five years. He claimed under a purchase at tax sale, made more than five years before suit brought, and a tax deed made to him. The question was, whether the limitation commenced running from the day of the sale, or from the time the purchaser took possession. The lands were unoccupied at the time of the sale, and there was no statute in force at that time, which authorized the plaintiff to test his title by suit. He could not sue, for there had been no one in possession under the tax-purchase to be sued. Tilghman, C. J. delivered the opinion of the court, and held the statute did not commence to run, until the purchaser.took possession. Among other things, he said : “ Suppose, now,
'A statute of Iowa declared, that “ no action for the recovery of real property sold for the non-payment of taxes shall lie, unless the same be brought within five years from the date of sale,” with a proviso giving further time to infants and insane persons. It will be observed, that their statute is precisely like ours, and we suppose ours was borrowed from theirs, as theirs is older than ours. Theirs is a literal copy of the Pennsylvania statute of 1804, which we have been discussing, and we suppose was copied from it. It was so stated in the opinion in the case of Eldridge v. Kuehl, 27 Iowa, 160, which presented the queston of its construction. The question was very elaborately considered by that court, of which
Subsequent to the rendering of the decisions in Iowa, cited above, the legislature of that State seem to have changed their statute, and made it express on its face what their Supreme Court had declared to be its true interpretation. The amended statute required the action to be brought within five years after the treasurer’s deed is executed and recorded. We learn this change of statute, by comparing the copy found in Eldridge v. Kuehl, 27 Iowa, 160, with a copy given
The statute, Code of 1876, § 464, shows on its face, that it was oonceived in the spirit, and with the intent of declaring a short period for testing the validity of tax titles. Actions “for the recovery of real property sold for the non-payment of taxes,” are the actions for which the five years limitation is prescribed. Now, no matter by whom the action may be brought, whether by the tax-purchaser or the original owner, the validity of the tax title can not be inquired into, until the title — the deed — is executed. Until then, there is no title to be asserted or questioned. If the purchaser sues, he can not recover on his certificate of purchase, because it confers no title. If the original owner sues the purchaser before the latter obtains a deed, the validity of the sale can not be tried, for the purchaser can not defend on his mere certificate of purchase. So, in no event, can the legality or validity of the sale be tested in ejectment, until the pur
A further argument. When lands are sold for taxes, the tax collector is required to give the purchaser a certificate of purchase.—Code of 1876, § 448. This certificate is assignable by indorsement, and the assignment vests in the assignee all the right and title of the original purchase.—lb. § 449. There is no provision that the tax payer whose lands have been sold for taxes, shall have any notice of this assignment, or succession of assignments, as the case may be. He is not required to be informed, and may not know who holds the certificate of purchase, and .who is the owner of the right and title under the purchase. When the deed is made, this fixes and declares the ownership, and no further assignments, or transfers of the right and title under the purchase can be made except by deed ; and deeds of conveyance of lands are usually recorded, and notice of their existence thereby given. These reflections have been suggested by a remark found in the opinion of the court in Mitchell v. Etter, 22 Ark. 178, that “the former owner, whose land has been sold for taxes, may, by bill in equity, have the purchaser’s title declared void, if it be so, and his deed delivered up and cancelled, though he never was in possession.”How can a bill be sustained to cancel a deed, before it has any existence, and before the law authorizes it to be made ? And if it be proposed to file a bill to prevent the cloud, before the making of the deed, how is the original owner to know in whose hands the certificate of purchase may be found, so as to make that person a defendant to his bill ? Other difficulties suggest themselves, which would be likely to arise in any attempt to have the cloud upon the title removed before the deed is executed to the purchaser, but we will not swell this opinion by pointing them out.
The case of Pillow v. Roberts, 13 How. (U. S.) 472, arose under the statute of Arkansas, which provided that “all actions aginst the purchaser, his heirs or assigns, for the recovery of lands sold by any collector of the revenue for the non-payment of taxes, * * shall be brought within five years after the date of such sales, and not after.” When the action was brought by the original owner, the purchaser had been in possession over ten years, claiming ownership. The record does not disclose when the action of ejectment was instituted, but the case was decided in the Supreme Court more than seven years after the tax-purchaser acquired his deed. The five years limitation was pleaded in bar. The opinion was by Justice Gkier. He said : “with regard to the five years limitation, we need not inquire whether the legislature intended
The Wisconsin statute provides, “that any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid, or the lands redeemed as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter.” Another statute is spoken of in their decisions, but we have not found it. Its provisions are, that the record of the deed of purchase is a constructive possession of vacant possessions by the purchaser, which authorizes an action or proceeding against him, without actual possession by him.
Another question was decided by the chancellor, and has been argued before us, namely: the quantum of interest acquired by the purchaser at a sale of real estate for unpaid taxes. In Dyer v. Br. Bank at Mobile, 14 Ala. 622, is a statement by the court — probably a dictum — that at a sale of lands assessed to a person, whose duty it was to pay the taxes for that year, the purchaser acquired only the interest of such person. We do not think this is a proper construction of our present law. On the contrary, we hold that whenever lands are properly sold and conveyed for unpaid taxes imposed on the lands themselves, the purchaser acquires the fee.—Doe v. Hearick, 14 Ind. 242; Bur. on Tax, § 122.
■ We agree with the chancellor, that the plea of appellants opposed no valid defense to the bill, and it was rightly overruled and disallowed.
Affirmed.