58 So. 438 | Ala. | 1912
This is a statutory action in the nature of an action of ejectment brought by the appellant Roman against the appellees to recover possession of certain lands in Lawrence county. From a verdict and judgment in favor of the defendants, Lentz et al., this appeal is prosecuted. On the trial the plaintiff proved a complete paper chain of title, tracing from the government into himself.
The defendants sought to justify their holdings on tAvo theories: (1) That the plaintiff failed to assess the lands for taxes for the year 1898, and had failed to pay the taxes thereon for said year; that in the year 1901 an assessment Avas made against said lands for escaped taxes by the tax assessor for the year 1898, and that by a proceeding in the probate court these lands were decreed to be sold, and Avere on May 26, 1902, sold by the tax collector under said decree, and that at said sale Judson Lentz, since deceased, became the purchaser thereof; that on May 27, 1904, he received a deed thereto from the probate judge, which vested in him the legal title; that said Judson Lentz died without issue, the title descending to the defendants, the father and mother of said Judson Lentz; (2) that, if the proceedings in the probate court Avere void, the taxes for the year 1898 Avere not paid on said lands, and that said Judson Lentz, soon after his tax purchase, went into possession of said lands under claim of right, and that he and the defendants had held the same adversely for three years prior to July 31, 1907, when the suit was filed.
On the first question, only one witness was examined, the plaintiff, Roman, who testified in his oavu behalf that he had OAvned the lands in controversy since 1896; that the lands Avere assessed for taxes by the plaintiff in person during the years 1896, 1897, and 1898, and for the years subsequent thereto by George H. Parker, as agent for plaintiff; that he prepared in his office the assessment of said lands on a regular assessment blank, to Avhich he attached a printed list of all the lands owned by him in Lawrence county, totaling 9,440 acres, for each of said years, a copy of which printed list— printed on a slip, not typewritten — such as was at
The only evidence offered by the defendants to show-that the plaintiff had not' paid the taxes on the land in controversy for the year 1898 was the tax assessment book made by the tax assessor for that year. While the record in this book purports to cover 9,440 acres of land, it omits one line from the long list of lands, thus omitting 440 acres of land, embracing the lands sned for; but otherwise the assessment as recorded follows the list which witness Roman swore that he mailed to the tax assessor. A comparison of the printed list testified to by Roman with the assessment book of 1898 raises the natural inference that the tax assessor received the assessment forwarded by Roman, and that, in transcribing it on the tax book, he omitted one line as shown by the printed list from the word “except,” in the second line, to the word “except” in the third line — a very simple clerical error, but omitting from the description the following : “N. W. % and all of S. E. 14 except S. W. %
In addition to this, the plaintiff offered to prove by the tax assessment books for 1896, 1897, and for several years succeeding 1898, and by the tax collector’s receipt stub-books for those years, that he correctly assessed all his lands in conformity with the printed list attached to his testimony, showing also the same total of 9,440 acres in each year, and that he paid the same amount of taxes on the same valuation during all of those years as in 1898, and that the description given in by him, as shown by such assessment books, for the years preceding and succeeding, were fac similes of the description recorded in 1898 except for the omission in the record above referred to; but the court would not permit him to introduce this evidence. In this we are of the opinion that the court below was in error. This evidence tended to
Embraced in the short statute of limitations, section 2311 of the Code of 1907, as to the recovery of lands sold for taxes, upon which, the defendants in this case rely, is this proviso: “Provided, however, that the provisions of this section shall not apply to cases in which the owner of the real estate sold had paid the taxes, for the payment of which such real estate was sold, prior to such sale.”—See, also, Crook v. Anniston Land Co., 93 Ala. 7, 8, 9 South. 425. Section 2122 of the Code of 1907, substantially identical with the same section as it appears in the Code of 1896, No. 3950, provides that the assessor shall keep a book in which assessments shall be recorded, showing the description and number of acres of land and the valuation; and 'the succeeding section provides that on the first Monday in May he shall file such book in the office of the judge of probate, where the same shall be open to examination by the public. And section 2310 provides, further, that “on the trial of any issue involving the sale of real estate for taxes, or the redemption thereof, the books and records belonging to the office of the judge of probate or tax collector, and required by law to be kept, or certified copies therefrom, shall be prima facie evidence of the facts stated therein.”
Of course, the plaintiff is not concluded by the record in the assessment book, especially since that record bears internal evidence of error. As was said in the case of Harvey v. Thorpe, 28 Ala. 263, 65 Am. Dec. 344, in discussing the weight of records of conveyances: “In
It is contended by the appellant that, in view of the positive testimony of the plaintiff that the taxes were paid, the presumption of the correctness of the assessment book is overcome, and that it should no longer have been considered as evidence in the case; that, where the testimony against the presumption is clear and satisfactory, it is the duty of the court to hold as a matter of law that the presumption is overcome; and that, therefore, the court should have given the affirmative charge for the plaintiff—citing Louisville & Nashville Railroad Co. v. Marbury, 125 Ala. 254, 255, 28 South. 438, 50 L. R. A. 620; Alabama Great Southern Railroad Co. v. Moody, 90 Ala. 46, 8 South. 57. The presumptions dealt with in those cases were presumptions of fact rather than of law, indulged mainly for the purpose of putting the company to proof and compelling it to explain, and show, with a fair degree of certainty, that it had performed its duty. Greater weight must be ac
What we have said renders it unnecessary to discuss the other assignments of error.
Reversed and remanded.