Rodgers v. Gaines

73 Ala. 218 | Ala. | 1882

STONE, J.

— We will confine our rulings to the errors assigned.

There is nothing in the objection that oral evidence was admitted of the fact and contents of the posted notices of sale. They were put up more than a year before the trial, were in-exposed places, and the presumption is they had been destroyed. Neither was there error in allowing oral testimony that Gaines was the authorized deputy of Eatman, the tax-collector. It was a collateral question in this case, to which the strict rule of primary and secondary evidence does not apply.— Graham v. Lockhart, 8 Ala. 9; 1 Greenl. on Ev. § 89. See also lb. §§ 83, 92.

An alleged former suit and recovery before a justice of the peace were attempted to be shown in evidence in bar of this action. This testimony was ruled out at the instance of the plaintiff. The bill of exceptions sets out all the evidence, and it was neither proved, nor offered to be proved, that the justice trying the cause had jurisdiction. Justices’ courts are of a class called limited jurisdictions; their jurisdiction in cases of detinue being limited to fifty dollars. Any judgment of a justicé’s court, attempting, in such action, to determine the right to property of greater value than fifty .dollars, would be without jurisdiction and void. — 1 Whart. on Ev., § 795; 1 Chitty’s Pl., m. p. 459; 2 lb. 422. We feel bound to presume this testimony was ruled out on this ground. It may be added that on the trial of this cause, there was testimony that the value of the mule in controversy was one hundred dollars, and the verdict of the jury shows they assessed it at about that sum.

The remaining questions depend mainly on our statutes. We think there can be no question that there was alien on the mule for the unpaid taxes of 1880, assessed against Curry, the tax-payer. He had, by his own act, had that mule assessed as his property for that year. Allowing the assessment to stand without correction, he estop'ped himself from denying his liability for the taxes then assessed. It may have been that when he obtained the mule, there was an understanding he should pay the taxes of that year. Being part of the property on which the taxes were assessed, it was rendered liable for their payment.

It is urged for appellant that the tax sale conveyed no title, because the property was not advertised in the proper precinct. The statute says, sales may be made “ after ten days’ notice by posting bills at three or more public places in the precinct in which such delinquent resides.” We concede a compliance with this statute is a necessary condition, of a valid sale. When the taxes were assessed for the year 1880, and throughout that year, Curry, the tax-payer, resided in Tishabee precinct. He was assessed in, and as of that precinct. Taxes are assessed and classified by precincts, and tax-payers are put in default and made delinquent, only when they have had two opportunities to meet the tax-collector in the precinct in which they are assessed. All the statutory provisions indicate that taxes are to be paid and collected in the same precinct in which they were assessed. — Code, §§ 376, 379, 388, 395, 408, 421. Curry, the tax-payer, removed to, and'resided in an adjoining precinct during the months of January and February, 1881, and in March removed from the county, and did not return. So, when the property was seized and advertised, he had no place of residence in the county. We think the law was substantially complied with in this case.' To hold otherwise, would be to declare no valid sale could have been made, as Curry resided, at that time, in no precinct in the county. We think the words, i£iu the precinct in which such delinquent resides,” have reference to the time the assessment was made; at least, in the absence of actual residence in another precinct of the county.

Under the rules laid down above, there was nothing in the charges given that could have done the defendant any harm.

Our statutes contemplate that a tax-collector may have deputies. — -Code, § 412.

Affirmed.