97 Ala. 545 | Ala. | 1892
— 1. Section 2762 of the Code makes provision for a case like the one presented, in providing that if the judge trying a cause shall fail or refuse to sign a bill of exceptions, the point or decision and the facts being truly stated, • • • “ the Supreme Court must receive evidence of the facts, as may be deemed by it satisfactory, and proceed to hear the cause as if the bill had been signed by the court.” The proper practice is here indicated, and the appellant’s remedy,, if she was aggrieved, was by motion in this court, to establish her bill of exceptions on such evidence as would be satisfactory to the court. It-was not by appeal for error in the action of the court in refusing to sign the bill. The bill as signed by the judge, is the one upon which this court must act until a new one is 'established in the mode pointed out by the Code. — Hale v. Goodbar, 81 Ala. 108 ; Posey v. Beale, 69 Ala. 32.
II. By the express terms of the agreement for the trial of this cause by the judge, it was stipulated that all the facts necessary for a recovery by the plaintiffs were admitted, except the sole question of the statute of limitations of five years, as provided in section 464 of the Code of 1876, forbidding any suit for the recovery of real property sold for the non-payment of taxes, unless the same be brought within five years after the date of the sale thereof. Many exceptions were taken to the rulings of the court, and are here assigned as error, but the case must be disposed of on that . agreement, and we have but the one point to determine.
It is admitted that this suit was brought before the expiration of the period of five years from the date of Mrs. Turner’s purchase from the State, and that that fact is conclusive of the right of plaintiffs to maintain the suit, against the plea of five years limitation, unless the admission oi Mrs. Turner “to come in and be made a party defendant to this suit, and defend her rights and property in and to said lots, against the claims of the plaintiffs,” made “the suit for the recovery of the lands a new one against her, begun after the trial contemplated by the statute of limitations of five years.” Section 460 of the Code of 1876 provides that when one becomes purchaser of land sold for taxes by the State, the probate judge shall give him a deed duly executed by him conveying to the purchaser all the right, title and interest of the former owner in and to the land conveyed; and we
There is no evidence that the State ever got a tax-deed from the judge of probate after it became the purchaser of the lands. The State, therefore, could transfer to Mrs. Turner no more, if anything, in the absence of a deed from the judge of probate, than its right to occupy the land from the date of the record of the auditor’s certificate of purchase to her on the 31st day of May, 1884, or at least from the date of its record in the probate office June 4, 1884; and at neither of those dates had five years elapsed at the time of the institution of this suit, on the 26th February, 1889. Mrs. Turner’s contention, however, is, that she was not sued until the 24th January, 1890, the date she was admitted by the court, on her application, to be made a party, as landlord, to the suits.
III. It is a principle often repeated that, “If, during the pendency of a suit, any new matter or claim not before asserted is set up and relied upon by the complainant, the defendant has the right to insist upon the benefit of the statute until the time that the new claim is presented, because, until that trial, there was no Ids pendens, as to that matter, between the parties.” — King v. Avery, 37 Ala. 173; Anniston & A. R. R. Co. v. Ledbetter, 92 Ala. 326.
But this was no amendment by the plaintiffs. Mrs. Turner came into the suit on her own petition, filed in accordance with the statute, to make herself a defendant as landlord ; and, against the objection of plaintiffs, she was admitted to defend her title against the claim of title by plaintiffs, and the very purpose of her application and of her being admitted was to test the strength and validity of those competing titles. Her claim was within the lis pendens. If the statute of limitations gave her a title against plaintiff’s assertion, on which she was willing to rely, why should she come into this suit? When admitted in the manner she was, her position in the case was the same as if notice had been served on her to make her a party, at the same time it was served on the other defendants. — Agee v. Williams, 30 Ala. 636; Evans v. Richardson, 76 Ala. 332.
IY. We find no error in the assessment of damages for the detention of the land, of which the defendant can complain.
It is contended by appellee that, under this section, no taxes can be required to be refunded by the party recovering in the ejectment suit, except State and county taxes; that the statute does not refer to municipal taxes paid by the purchaser; and that it is incumbent on the purchaser to show that all taxes paid by him were lawfully assessed. But we can not sustain this contention. The statute is broad enough to cover all taxes, whether State or municipal, and it would be obviously unjust to deprive the purchaser of the right to have municipal taxes paid by him refunded, when, if he did not pay them, they might be coerced by a sale of the land. These he would be bound to pay, as well as the State and county taxes, to protect and preserve his title. And it is the duty of the purchaser, in the interest of good citizenship, to pay all taxes as they are levied on his property under the laws of the State. Nor will it do to give such a construction to the words “lawfully paid,” as employed in the statute, as would require the purchaser to show a technical compliance with all the requirements of the law, to make a perfectly correct assessment of taxes, before he can be allowed to recover taxes paid by him on the redemption of the lands. Taxes are due and owing without reference to irregularities which may have intervened in their assessment, such as might render a sale of the property for taxes void, and when a purchaser at a tax sale has paid such taxes as have been assessed against the property he purchased and are claimed by the proper revenue officers, and which appear not to be incorrect, they are [lawfully .paid by him in the sense of the statute.
The appellees, under the construction we give to the statute, owe the appellant the amount of the State and county taxes which were assessed against the lots, and for which
Corrected and affirmed.
