131 Ala. 185 | Ala. | 1901
-The principle is generally' recognized in the books, that taxes are not a lien unless expressly made so by statute.
Mr. 'Cooley says: “In considering this remedy by suit, it is to be kept in mind that it exists only by force of the statute. The statute must, therefore, be closely followed in the proceedings1.” — Cooley on Tax., 444, 449.
Mr. Desty observes: “A tax is not a lien unless it is expressly made so by laAV or ordinance which imposes it. The lien on real estate for taxes has no existence, unless there be some statute creating it, and such statute must be strictly construed.”-Desty on Tax., 734; Canal Co. v. Gordon, 6 Wall. 561; 25 Am. & Eng. Ency. Law, 267; 1 Jones on Liens, § 112; 1 Pom. Eq. Juris., § 281; Endlich on Int. of Statutes, 154, 434, 435.
In Chandler v. Hanna, 73 Ala. 392, it is said: “The rule is general, of' great practical importance, and has been frequently acted upon, that ‘when by a statute a
The facts of the -ease to which the foregoing principles are applicable, are undisputed, and as stated by the complainant’s counsel, and as appear in the transcript, are, that -on the 29th September, 1894, the de
In May, 1898, in the case of Enslen v. the defendant company and one Harris, C. B. Ashe was appointed receiver of all the assets of the defendant company, and is now acting as such receiver, and he is not nor are said trustees taking any steps to redeem said property, and there are no assets of said corporation out of which said taxes so paid by complainant can be paid, except out of the said lots included in said tax sales. It was not averred that complainant ever went into possession of said property. It is averred-that E. F. Enslen claims to have a lien on said property by virtue of a judgment rendered against the defendant company, in the circuit court of 'Colbert county, on the 11th April, 1895, based on a claim which was due before the execution of said deed of trust.
The bill further alleges, that by reason of certain irregularities, said tax sales were" ineffectual to pass the. legal title (but not because the taxes were not due) and prays for the enforcement of the-'lien which the statutes of Alabama give to complainant- for the payment of the money paid out for taxes on said property.
It- is contended by the defendants that, whether said sales were void or not, complainant has no right to invoke the aid of a court of equity to enforce any lien for the recovery of sums paid out in taxes to the State, county and city on said property since said sale in 1893.
Section 597 of Code of 1886 and 4078 of Code of 1896, provide that “When the sale of any land sold for the payment of taxes is, for any cause, ineffectual to pass the title to the purchaser, except in cases in which such sales are in this title ['chapter in the section of Code of 1896] expressly declared to be invalid, such sale shall operate as an assignment to the purchaser of the rights and liens of the State and county in and to the. land sold.” This lien of the State on property, it is to be observed, is foa* the taxes of the year for which it was assessed. If the property is assessed for a particular year, — as in this case for the year 1893,— the lien extends no further so far as it grows out of that assessment, than for the ■security of the taxes for that year. If the property assessed for a particular year, be sold by the 'State for the enforcement of the State and county taxes of that year, and is purchased by a stranger, the lien, so far as the interest' of the State is concerned, is satisfied, and the State has no liens for future assessments to be assigned or conferred on a purchaser. — Winter v. City Council, 101 Ala. 649. The State has its money, and no remedy is bestowed for its recovery back from the State, even if the sale for taxes was ineffectual to pass the title to the purchaser. The rule of caveat emptor applies to him. — Desty on Tax., 850; Cooley on Tax., 476. So, if that were all, the purchaser would be x-emediless as to voluntary payment of future assessments of taxes on the property. In other words, the. lien which the statute (§ 3921) gives the State and county, and
It may be added in this connection, as a further safeguard to tax purchasers, that section 4081 (599) entitles the purchaser of land at a tax sale, or any one claiming under him, after the expiration of six months from the date of sale, to maintain an action of ejectment or statutory action in the nature of ejectment, or of unlawful detainer for the recovery of the possession of the land, to be held by him, subject only to the right of redemption bestowed by the statute on the owner. As another remedial safeguard to the purchaser, the legislature further provided, that “No action for the recovery of real estate sold for taxes shall lie, unless the samé is brought within three years from the date when the purchaser became entitled to demand a deed therefor,” etc. — Code, § 4089; Capehart v. Guffey, 130 Ala. 425.
But, as we have stated, so far as the lien of the State and county is concerned, it exists and is provided for and is assigned to the purchaser, only for the taxes of the particular year or years for which the land was sold. Here the legislature might have rested without other provisions on the subject, leaving its revenue system in this regard, incomplete. It was manifest, how
The next section, 4084, makes proAdsion for the payment of the purchaser, or other person claiming under 'him, Avhen sued for possession hv the OAvner, and the purchaser claims and defends under his tax title, and his defense fails on the ground that the sale Avas invalid for any other reason than that the taxes were not due,
These sections, going further than section 4078, as to a lien for which the lands were sold, but including all taxes, State, county and municipal which the purchaser may, since the sale, have paid on the property, give in addition a lien on it for the whole sum, for his indemnification and reimbursement. — Turner v. White, 97 Ala. 545; Cobb v. Vary, 120 Ala. 263.
These sections are cumulative of rights and remedies as provided in said sections 3921 and 4078. The latter sections (4083 and 4084) themselves confer a lien for the purposes in them specified, but this lien is distinct from the first one bestowed; and a full and ample remedy is provided in said last named sections for suits arising under them. The right here bestowed was a new one, theretofore not existing, and the remedy for its enforcement is provided in the same statute which created the. right. Under these two sections, as we have said, the lien is created distinct from that given to the State under the former 'section, 3921. It does not arise and is not bestowed, except at the end and as the result of a judgment in ejectment, and it is, then, and not before, the judgment which constitutes a lien on the lands sued for arises. They are as distinct as two mortgages on the same land are. They are bestowed on different persons', 'at different times", on different conditions and the latter has a 12 per cent penalty by way of interest, not attached to the former, and embraces municipal taxes, which the lien given the State by statute does not cover.
When this new right is sought to be enforced, the specific remedy if provided by statute must be pursued, and chancery has no jurisdiction to enforce it. Authorities supra.
This suit is instituted primarily not to enforce the purchaser’s lien to it by the State for the purchase money, etc., paid at the tax sale for the year 1893. Its chief object is to enforce the lien for taxes for sub
It results that the decree of the court below is erroneous, and must be reversed. The judgment of this court heretofore rendered reversing the decree and dismissing the bill, will be set aside, and the judgment will now be rendered, reversing the decree below and remanding the cause.
Reversed and remanded.