48 Ala. 699 | Ala. | 1872
In ejectment by the purchasers of land, at a tax sale, against a subsequent purchaser from the owner, the plaintiff's insisted on the conclusiveness of their deed from the probate judge as evidence of the facts stated in the seven sub-divisions of § 87 of the revenue law of 1868. They also objected to any defense to their suit, unless the defendant would comply with the provisions of § 93 of the same law. The court decided that these enactments were unconstitutional,
The requisition which “due process of law,” or, “the law of the land,” makes, involves judicial as well as legislative action. This is, perhaps, by precedent and long practice, sufficiently obtained in respect to sales of property for taxes, by allowing to the owner the assertion of his rights in the courts after the sale has been made, when the revenue law contains no provision for such previous adjudication, as is secured in some of the States of the Union. Our law makes no such provision, but the probate judge is required, upon the return of the certificate of purchase, to make out a deed and deliver it to the purchaser. This deed, under the 87th section, is made conclusive evidence: 1st, That the property was listed and assessed at the time and in the manner required by law; 2d, That the taxes were levied according to law; 3d, That the property was advertised for sale in the manner and for the length of time required by law; 4th, That the property was sold for taxes as stated in the deed; 5th,,.That the grantee named
In this case the defendant proved that no assessment of the property had been made/ and, consequently, that no taxes had been levied on it. The certificate of purchase and the deed, therefore, contained statements which were false in fact. Without such assessment and levy the sale would be void. — Blackwell on Tax Titles, p. 154. Shall the deed prove beyond contradiction facts which had no existence? The act does not dispense with these prerequisites. But the deed is made conclusive evidence that they were performed. We do not hesitate to say that such a rule of evidence is contrary to the guaranty of the Constitution. — Blackwell on Tax Titles, pp. 80, 82. Cooley characterizes it as not a law regulating evidence, but an unconstitutional confiscation of property. — Cooley’s Const. Lim. 369. In Allen v. Armstrong, 16 Iowa, 508, a revenue statute, identical in terms with ours, in respect to the conclusiveness of the deed as evidence, was brought under partial consideration. The defendant did not controvert the assessment or valuation, and the levy of the tax. In reference to this the court said: “If any given step or matter in the exercise of the power to tax (as for example the fact of a levy by the proper authority) is so indispensable, that without its performance no tax can be raised; then that step or matter, whatever it may be, cannot be dispensed with, and with respect to that the owner cannot be concluded from showing the truth by a mere legislative
The 93d section of the same act is but a corollary of the other; and is in violation of the Constitution.—Conway v. Cable, 37 Ill. 82.
The court held that the entire section 87 was unconstitutional and void. This was erroneous, and may possibly have effected some injury to the appellant. For this error the judgment is reversed and the cause remanded.
[Note by Bgpobtee. — The opinion in the foregoing case was delivered at the June term, 1874, and is here inserted by direction of the Chief Justice, in advance of other cases decided at the same term, owing to the important questions passed on in the case.]