Smith v. Cox

115 Ala. 503 | Ala. | 1896

HARALSON, J.

1. The appellant brought ejectment against appellee. Defendants pleaded not guilty, and in addition two special pleas, followed by much sparring in the way of pleading, on each side, bringing to light, at last, nothing that was not provable under the general issue, and of which the parties did not have the benefit, on the trial under that issue. The only appropriate plea in the trial of this action is “ not guilty, ’ ’ and under it, anything that operates as a bar to the action may be given in evidence. We see nothing in the case which makes it important for us to notice the special pleadings which were indulged between counsel. Bynum v. Gold, 106 Ala. 427 ; Richardson v. Stephens, 114 Ala. 238.

2. The plaintiff claimed title under one Alice McElroy. She proved a paper title from the Government down to said McElroy, who,‘in 1870 or 1871, was in the undisputed possession and ownership of the land; that about that time she went away, and made a verbal gift of the lot to Michael Smith, to be his if she never returned ; that she never did return, and has never been heard of since ; that said Smith owned the next adjoining lot, of the same size, on which he. resided, between which and the one in suit, there was a division fence; that in. 1871, said Smith went into the actual possession of said lot, removed said division fence, so as to bring both lots within a common inclosure, and from that time, till his death in 1891, he continued in the actual possession thereof, using and cultivating it every year under claim of right and ownership ; that his possession and claim, during this period, was open, visible, uninterrupted, notorious and continuous; that after his death, his three children, his only heirs, including the plaintiff, continued in the actual adverse possession of his homestead, including said McElroy lot, claiming the same, and continued in the open adverse possession thereof until the 22d of July, 1895; that the lands of said Michael Smith, including the lot in suit, were sold for division among his heirs, by order of the probate-court, and this lot became the plaintiff’s, and she held title to the same as between her and the other heirs of said Smith, under a deed from J. K. G-lennon, a commissioner appointed for the purpose by, and in pursuance of the orders of, the probate court of Mobile county. She also introduced evidence tending to show that she paid the taxes on this land for the year 1889, and before the same was sold by the tax collector in 1890. It was shown, without proof to the contrary, that the lot in question is not, and never has been within the corporate limits of the present city of Mobile.

3. The only defense that the defendant interposed to plaintiff’s right of recovery, grew out of a tax title, as he claimed, to the lot, executed to him by the judge of probate on the 25th July, 1892. He showed that on the 17th November, 1894, he instituted in the circuit court of Mobile county a statutory real action against the appellant, to recover possession of said lot; that judgment was rendered against her by default in favor of defendant, at the Fall term, 1894, of said court, on which a writ of possession was issued, and he was put in possession of the property thereunder, on the 22d July, 1895.

If the defendant’s deed to the land growing out of his purchase of the same at tax sale is for any reason invalid, and it was admitted in evidence improperly, he was without evidence to support his claim of title. He offered no other claim but this, as against appellant’s title.

4. As controlling the decision of this case, we repeat some familiar rules applicable to tax sales, oftentimes sanctioned in this court: “In the sale of lands for taxes, great strictness is required, and every provision of the statute must be punctiliously pursued. Without a rigid adherence to the directions and forms of the statute, the sale is void, and the owner is not divested of his title or estate. * * * A fundamental .condition (says Cooleyj to their validity is, that there should have been substantial . compliance with the law, in all the proceedings of which the sale was the culmination. * * * A tax deed takes effect only as the execution of a statutory power. It must, therefore,' be construed with some degree of strictness, so as to enable the grantee to identify the land, and the owner to redeem it. The description must afford the means of identification, and be sufficiently certain not to mislead the owner, or be calculated to- mislead him.”—Dane v. Glennon, 72 Ala. 163, and authorities there cited; Cooley on Tax., 286, 324. No presumptions will be indulged in favor of the regularity of proceedings for the sale of land for such purposes. The burden is on the party claiming under them, to show that all the substantial requirements of the law have been complied with.—Oliver v. Robinson, 58 Ala. 46 ; Johnson v. Harper, 107 Ala. 706 ; Nat. Bank of Augusta v. Baker Hill Iron Co., 108 Ala. 635. The requirements of the statute' to be observed, begin with the assessment, and extend through each step of the after proceedings ending with the deed.

5. In this case there are numerous objections raised to the validity of the tax proceedings and deed under which the defendant claims, some of which are well taken and others not. We refer to such of them only as we deem it necessary to notice.

The assessment purported to be against an unknown owner. It needs only a casual comparison of the statutes and proceedings of the court of probate, to detect that the notice the judge of probate gave preliminary to a decree of sale of the lot for taxes, (Code of 1886, § 572), the decree and the advertisements of sale (§§ 573, 576), the place of sale (§577), and the deed itself, are incurably defective. The form of notice is not followed; the owner was notified to appear, not before the probate court at its next term, as the statute requires, but before the probate judge, on April 14th, 1890. The decree also fails to follow the form prescribed. It fails to show that the notice as prescribed by law was given ; that the assessment had been made against an unknown owner, and the amount of fees, charges and costs incurred. The notice of sale by the tax-collector fails to specify, that the land to be sold ■ had been assessed to an unknown owner ; and it was not shown that any notice was given by posting at the court-house and in the precinct as is also required. It was further shown, — indeed the tax deed recites, — that the lot was sold "at the office of the judge of probate,” instead of “in front of the door of the court-house of the county, ’ ’ as the law requires.

The assessment purporting to have been made against this property, described it to be, “V. G. N. E. Cedar & Tennessee.” This description by itself, indicates nothing. Abbreviations may be used in assessments, to designate blocks and lots or parts thereof in any city, town or village, or by metes and bounds, or in some other way by which the property may be known. — Code of 1886, § 476, sub-div. 4. But, such abbreviations, to comply with the law must be identifying, or if entirely indefinite on its face as here, it must be shown, that the lot was generally known or designated in the manner described. No such proof -was offered The evidence of defendant’s witnesses, what the persons working in the tax offices and the probate .office understood by these abbreviations was irrelevant, and if relevant, their understanding that they meant “North East 'Corner of Cedar and Tennessee Streets,” does not clear the obscurity. The letter “V” is not referred to in this explanation, and the word “corner” is interpolated. It was shown that the property was not in the city of Mobile, nor does it appear that it was located in any city, town or village. This same description is carried, and appears, into all the after proceedings, culminating in the deed, where it also appears, without more, except, that the letter “V, in the assessment was changed in the following descriptions to “Va” which was equally uncertain. The vagueness of this description and the other irregularities referred to, render the sale of this property for taxes and the deed of defendant void.

6. There is nothing in the contention that the plaintiff was barred of this action because she did not commenee it within three years from the date when the purchaser became entitled to demand a deed therefor. She was in the adverse possession of the property herself, before and after the sale, and until the22dof July, 1895, and this suit was commenced on the 30th September following. Section 606 of the Code has no application to such a case. The defendant must not only have been the purchaser with a tax-deed, executed and delivered in conformity to law, but must have been in the occupancy thereof, under sucia deed, for the period prescribed by the statute, to bar a suit by the owner in ejectment.—Lassitter v. Lee, 68 Ala. 287. Besides, the statute did not commence to run, as we have .repeatedly held, until the delivery and registration of the deed. There is no evidence that the deed was ever recorded.—Hughes v. Anderson, 79 Ala. 209 ; Bolling v. Smith, Ib. 536 ; Jackson v. Kirksey, 110 Ala. 547; Code of 1886, § 592.

The general charge should not have been given for the defendaiat. .

Reversed and remaiaded.