39 So. 685 | Ala. | 1905
— This is a proceeding by mandamus by which the relator, Albritton, seeks to compel the judge of probate of Geneva county to execute to him a deed to certain lands alleged to have been purchased by the relator at a tax sale made by the tax collector of Geneva county on the 4th day of June, 1900. The lands consisted of several subdivisions of section 2, township 1, •range 19, in Geneva county, and the petition alleges that they were assessed for taxes for .the year 1899 to “owner unknown”; that on the 4th day of June, 1900, at the courthouse door in Geneva, county the tax collector sold said lands for the taxes due thereon for the year 1899, and at said sale petitioner became the purchaser of the said land for the taxes due thereon for the .year 1899, for the sum of $18.56; that petitioner paid that amount to the tax collector, who was J. S. McCormack, at the time the sale was made, and on the 7th day of
The foregoing, we think, is a sufficient recital of the allegation in the petition for an intelligent understanding and application of the legal principles involved in the case. Four grounds of demurrer Avere assigned by the respondent to the petition, all of Avhich were overruled. The correctness of this ruling is challenged by the first, second, third, and fourth assignments of error. The question presented by the first, third, and fourth grounds of the demurrer is whether or not an aArerment of the existence of the statutory requisites leading up to and AAdiich form the foundation of a valid tax sale, such as a legal assessment, notices, and decree of sale and advertisement of sale, is indispensable in an application by a person holding a certificate of purchase issued by the tax collector for mandamus to compel the execution of a deed by the judge of probate.
Section 4063 of tiie Code of 1896 provides that, “as soon after the sale as practicable, the tax collector must make out and deliver to "each purchaser, other than the state, a certificate of purchase, AAdiich shall contain a description of the real estate sold, and show the same Avas assessed by the assessor, to 'whom assessed, the date of assessment, for Avhat year or years the taxes Avere due, the amount of taxes due thereon, distinguishing the amounts due the state and county, and for school purposes, and the fees and costs, that it Avas advertised and for hoAV long, and that it Avas offered for sale, and at Avhat time, and who became the purchaser and at Avhat price.” Section 4074 of the Code of 1896 provides that “after the expiration of tAvo years from the date of the sale of, any real estate for taxes, the judge of probate then in office • must execute and deliver to each
We have observed that the petition contains a sub-' stantial averment of all the facts set out in section-4063, and, moreover, that the certificate of purchase is made an exhibit to the petition and the petitioner prays that it be considered as a part of the petition. It is also averred that the lands remained unredeemed. Whether the statutory proceedings upon which the sale was predicated were regular or not, the certificate conferred upon the purchaser valuable rights. For instance, by section 4078 of the Code of 1896, if the sale was ineffectual to pass the tile to the purchaser, yet such sale would operate as an assignment to the purchaser of the rights and liens of the state and county in and to the land sold. Bv section 4081 the right to maintain suit for recovery of the possession of the land after the expiration of six months from the day of sale is conferred, subject, however, to the right of redemption. Section 4083 of the Code of 1896 provides that in any suit brought by the purchaser for the recovery of the possession of the lands sued for, if a recovery is defeated on the ground that the sale was invalid, for any other reason than that the taxes were not due, the court shall on motion of the plaintiff impanel a jury to ascertain, the amount of taxes for which the lands were liable at the time of sale, etc., and render judgment in favor of plaintiff for the amount, etc., and the judgment shall constitute a lien on the land sued for. The judge of probate is not in position to raise objections to the tax proceedings or to show irregularities in them. His duty is, after the expiration
The right insisted upon by relator is that lie is entitled to have the respondent as judge of probate execute to him a deed. Notwithstanding the fact that it is alleged in the petition that the judge of probate claimed that Cooper had redeemed the lands as owner, this does wot require that Cooper should be made a party to this proceeding. While the fact a« to Avhether the lands lmre been redeemed by Cooper is an issue in the case, yet it is an issue betAveen the relator and respondent, and Avliich can and must be litigated betAveen then Avithout Cooper’s presence as a party. If Cooper Avere a party, aud the court should grant the relief prayed for, what duty Avould or could be required to be performed by the court of Cooper? The officer is the only one who- can make and deliver the deed, and the purchaser accepts the deed Avithout prejudice to the rights of the former owner, except Avhere the proceedings have been strictly regular. This case is not brought Avithin the influence of the limitations found in the cases of Ex parte Du Bose, 54 Ala. 278, and Taylor v. Kolb, 100 Ala. 603, 13 South. 779, to the effect that oases may arise AAdiere the court will not grant a mandamus, Avhen the granting thereof will in a collateral manner decide questions of importance betAveen parties who are not parties to the proceedings and have had no notice or opportunity to interpose their defenses. Cooper was not a necessary
It cannot he successfully contended that the duty which the relator sought, by mandamus to have the respondent perform is not a ministerial duty. There is abundant authority in support of the proposition that “no judicial proceedings, take place upon an application to redeem, the officer who receives the money and executes the certificate of redemption acts in a ministerial capacity, and his decision is not conclusive upon the purchaser. The party who redeems acts át his peril. While it is true that the redemption of the' lands perfected within the time provided by statute by one entitled to redemption would be a- complete answer to the alternative writ, yet the right of the party to redeem may be contested in the mandamus proceeding* between the purchaser and judge of probate. And the fact that, in admitting one to redeem, the judge of probate took evidence in determining his right to redeem, cannot be imported by the judge of probate into the mandamus proceedings between him and the purchaser for the purpose of giving the duty demanded of the judge to be performed a judicial tinge. It follows that special plea A setting up as a defense that the judge, in ascertaining the owner of the lands for the purpose of redemption, acted in a judicial capacity, was properly stricken out on motion of the relator.
. The answer of the respondent to the petition in some respects amounted to a. general denial of the allegations of the petition. Section 5 of the answer not only denied some of the facts alleged in section 5 of the petition, but, set up the fact that the land had been redeemed within two years from the sale and that a certificate of redemption had been issued to the party who redeemed. If any particular matter contained in the whole answer, or in sections 5. and 6 of it, Avert1 objectionable, they might have been eliminated by motion to strike; but it is obvious that the demurrer to the answer as a whole, and to sections 5 and 6 of the answer, was not well made. But, after the demurrers Avere sustained, the record shows affirmatively that the cause was tried by the court on the petition, and the respondent Avas allowed to of
It is conceded by appellant that Cooper’s right of redemption was not asserted under sections 4092 and 4093 of the Code of 1896, but under sections 4090 and 4091. “The right of redeeming lands sold for taxes, whether the purchaser is the state to whom the taxes are due or an individual, is derived exclusively from statutory provisions. Such provisions are favorably and liberally construed. But the right must nevertheless be asserted in the mode, under the circumstances, and upon the conditions expressed in the statute.”—Boyd v. Holt, 62 Ala. 296; Dubois v. Hepburn, 10 Pet. 1, 9 L. Ed. 325. No particular form is prescribed by the statute in which an owner claiming the right to redeem the entire tract contained in one assessment must assert the rgiht. The statute (section 4091) provides that to obtain such redemption the party entitled thereto must deposit with the judge of probate the amount of money for which the lands were sold, with interest thereon at the rate of 15 per cent, per annum,, etc. No written application for redemption is required by this statute, and it would seem that the right could be claimed by a letter written by the party claiming the right to the judge of probate, inclosing the necessary amount to cover1 the taxes, interest, fees, and charges. This is the mode the respondent insists was adopted by Cooper. Of course, when the right is asserted by the owner under this section, it must be to redeem the whole of the lands embraced in the assessment under which the sale was made.
The evidence showed that the relator was entitled to have the deed executed, unless it can be said from the evidence that the lands had been redeemed. It was shown that the "lands were contained in one assessment and were sold at. one and the same time. It was admitted that, if J. R. Cooper were present, he would swear that the lands in question belonged to him at the date of the sale by-adverse holding for over 10 years; that he had 'made application to redeem them on June 4, 1902 (the sale having occurred on June 4, 1900) ; that he paid on
Paper title is not indispensable to show the right to redeem. If Cooper had been in the actual possession of the lands'for a- period of 10 years and in such w,a.y as constituted his holding adverse, that was evidence of ownership upon which the right to redemption could rightfully be predicated.
In respect to the payment made by Cooper: All the owner seeking to redeem lands can do is to pay the amount necessary for the redemption. He cannot compel the judge of probate to issue the certificate at once. If he pays the money into the hands of the judge within the redemption period, and the judge of his own motion postpones the issuance of the certificate until after1 the time for redemption, this should not affect the re-demptioner’s right. A construction by which the owner would lose his land without any fault of his own, when
The N. E. 1-4 of S. W. 1-4, S. E. 1-4 of S. W. 1-4, W. 1-2 of S. W. 1-4, N. E. 1-4 of S. E. 1-4, and the W. 1-2 of S. E. 1-4, all in section 2, in township 2, of range 19, are the lands described in the relator’s certificate of puT-chase. The relator i ¡, contending for a deed only to a part of the lands, 120 acres, to-wit, the W. 1-2 of the S. E. 1-4, and the S. E. 1-4 of the S. W. 1-4, of section '2. The hill of exceptions sets out all of the evidence. After consideration of it we think it is susceptible of the construction that the application for redemption was made only with respect to the 129 acres, not embracing any other lands embraced in the certificate. Idris being time, to entitle Cooper to redeem he should have complied with section 4093 of the Code, of 1896 in making application to redeem. It being conceded that he did not comply with that section, we do not think, in the condition we find the evidence, that we would be warranted in holding that the court erred in rendering judgment for the relator. rrhe respondent proved that the lands in controversy were not embraced in any deed executed to Cooper, and this question was not in dispute; hence, if the court erred in allowing the relator to testify that he diad seen Cooper’s deed and that the lands in question were not embraced in them, it affirmatively appears that no injury resulted to the respondent from the ruling.
There is no error in the record prejudicial to the appellant, and the judgment of the court must be affirmed.
