67 So. 673 | Ala. | 1914
Suit, in ejectment by appellant against one McCluskey, who was in possession of the land sued for, as a tenant of appellee F. N. McMillan; the latter, upon suggestion of such tenant, coming in and becoming the party defendant to the.suit.
It may be conceded that under the proof offered by the plaintiff she made out a prima facie case for recovery.—Dodge v. Irvington Land Co., 158 Ala. 91, 48 South. 383, 22 L. R. A. (N. S.) 1100. The proof shows that the plaintiff left the property, and the same was, it would seem, abandoned by her for a number of years prior to this suit.
In this record, a number of parties, Isaac A. J. Parker and others, are referred to as the “Parkers.” Counsel in his brief so designates them, and for convenience we adopt the same course.
It appears that in 1903 one Mayfield was in possession of this land (under what character of claim, if any at all, is not disclosed), and the said Parkers brought suit in ejectment against said Mayfield and recovered judgment March 4, 1903. One J. M. West acted as their agent in the matter of this suit, and he rented the property out for the said Parkers. The said Parkers filed a bill in chancery for a sale of the property for division among them as tenants in common, and the sale was had under decree of August 26, 1907, duly confirmed; and deed was executed by the register on January 4, 1908, to the appellee F. N. McMillan, the purchaser at said sale. Said McMillian has been in the actual possession of said property since the execution of the deed of January 4, 1908, under claim of ownership, and has made many improvements of the property. This suit was brought March 29, 1912. It was also shown on the trial that for the year 1902 this property was assessed for taxation, against the plaintiff, and was sold for taxes; J. M. West, agent of the Parkers, becoming the purchaser. The certificate of sale bears date
J. M. West, the agent of the Parkers, and purchaser at the tax sale, deeded his interest in the property to the. said Parkers, by conveyance of date March 26, 1906. la fact, it is proven without objection, and is without dispute, that West made the purchase as agent for the Parkers, and the deed made by him to them was but a consummation of the agreement between them.
That portion of section 2311 of the Code of 1907 (Code 1896, § 4089) with which we are here concerned, designated as the “short statute of limitations,” reads as follows : “No action for the recovery of real estate sold for the payment of taxes shall lie, unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor.” .
In the case of Capehart v. Guffey, 180 Ala. 425-, 30 South. 390, attention was directed to the change in the statute since the decision of Jones v. Randle, 68 Ala. 258, and the different sections of the Code with reference to this feature are there noted and commented upon. This court has recently had these sections under review in the case of Bedsole v. Davis, 189 Ala. 325, 66 South-491, wherein it is said: “An examination of the above-quoted sections of the Code will show that the present statute of limitations of three years begins to run in favor of a purchaser at a tax sale, or his vendee, in actual possession on the day ‘when the purchaser became entitled to demand a deed therefor.’ ” The time, therefore, from which may date the statute of limitations, is as above stated, and as found in the statute, “when the purchaser became entitled to demand a deed therefor.”
While nothing is said in this statute requiring possession, yet as said in Long v. Boast, supra,: “The courts, looking to the general purpose of such acts, have likened them to the ordinary statute of limitations, so that the enactment in question is simply a short statute of limitations, applicable, on grounds of public policy, to this particular class of cases, and the limitation does not begin to run until possession of the land is taken,” etc.
And in Hooper v. Bankhead,, supra, it is said: “In order for a purchaser of a tax title to invoke the protection of the statute of limitation considered in Pugh v. Youngblood, and of a like character of statute (uoav Code 1907, § 2311), he must have had, for the requisite period, adverse possession of the premises involved.”
In Long v. Boast, supra, it was admitted that the tax sale Avas irregular and conveyed no title to the land. Long, the purchaser.at the tax sale, conveyed by quit
We are of the opinion that that case is decisive of this. It may not be, under this authority, necessary that the Parkers take possession of the land under the facts of this case, but it is without dispute that they were in possession. The right and.interest of J. M. West, under the tax deed, vested in them by his conveyance; and by the deed of the register of January 4, 1908, to defendant McMillan, this right and interest vested in him. That right, as quoted above, was “a right to take possession of the land and hold it for three years, and thereby acquire title,” as against this plaintiff. Whatever interest the Parkers had passed to this defendant by the deed of the register. It is without dispute that defendant immediately took actual possession, and has been in such possession openly and continuously, under claim of ownership, for more than three years next before this suit. That the possession of the defendant has been of such adverse character as to come within the decisions of the court there can be no doubt.
The tax deed was of date the year 1905, and, had the Parkers had no possession whatever, yet under the ruling in Long v. Boast, the defendant, who, under his deed which conveyed to him all the right, title, and interest of the Parkers, including, of course, the rights acquired by the tax sale, took possession and has held the same adversely under his claim of ownership for more than three years, would prevail as against the plaintiff in this suit.
Under the undisputed evidence in this case, therefore, we conclude that the court properly gave the affirmative charge for the defendant at his request, and the judgment is accordingly affirmed.
Affirmed.