Calhoun v. Fletcher , 63 Ala. 574 ( 1879 )

STONE, J.

The following propositions are settled by the numerous decisions of this court, as the result of our statutes :

First: That, upon the death of one seized of a heritable estate in lands, the title descends eo instanti, and vests in the heir at law, if there be no will giving it a different direction; that with the title, there also passes to the heir at law the right to the possession and after-accruing rents and profits, subject to the statutory power of tbe personal representative to take possession and claim rents accruing, or to let to rent, or to obtain an order and sell, for the purposes of administration. This right of immediate possession is .further qualified by the homestead rights of the widow and minor children, if there be such; by the quarantine rights of the widow; and, in case there be a plantation on which a crop has been commenced by decedent, a further limitation to the end of the year. — See Code of 1876, §§ 2562, 2238, and 2439 ; Constitution of 1875, Art. 10, §§ 3 and 5. With these exceptions, the title and right to the possession vest in the heir, as above stated.

Second: That the personal representative, subject to the homestead and quarantine rights as above stated, may claim. and take possession, let to rent, or, in case of lands in the hands of a tenant, may give notice and claim rent, past due, or to accrue, and may obtain an order and sell, when a statutory ground exists, and thus confer on the purchaser the right to the possession, to the exclusion of the heir at law— all for the purposes of administration; that to these ends he may successfully prosecute an action of ejectment against an intruder, and may likewise prosecute or defend successfully an action for the possession against the heir at law himself; that a possession and control of the realty, thus taken by the personal representative, destroys or suspends the heir’s right to the possession, and to rights of action which at common law descended with the land to him, as the possession may terminate in a sale and divestiture of the title, or with a temporary use, or letting to rent.'

Third: That, to suspend or destroy the heir’s right to the possession of the inheritance, the persopal representative must actually take possession, or must assert his right, and follow it up with the means necessary to that end. — Masterson v. Girard, 10 Ala. 60; Harkins v. Pope, Ib. 493; Martin v. Williams, 18 Ala. 190; Chighizola v. LeBaron, 21 Ala. 406; Smith v. Kyles, 22 Ala. 558; Branch Bank v. Fry, 23 Ala. 770; Golding v. Golding, 24 Ala. 122; Russell v. Erwin, 41 Ala. 292; McCullough v. Wise, 57 Ala. 623.

It results from these well-settled principles, that the right of the personal representative to the possession, rents, income and profits of lands, of which decedent died seized, is one which he may or may not exercise ; and when he fails to assert it, the descent is not intercepted, and no stranger can gainsay or dispute the heir’s possession, or right to the possession. We hold that certain consequences flow from these well-settled principles. The possession of the personal representative, which will work a dispossession of the heir, must be an actual possession; a taking or claiming the control, use, occupation, or the rents, income, and profits of the premises. Less than this will not dispossess the heir, nor intercept the descent. There is no such thing as the right of the personal representative drawing to it the possession, by construction, or fiction of law. Only the title can do that, and the personal representative has no .title. We hold, further, that when an estate has been administered, and the administration closed, all the rights of action for use and occupation of the land descended, not previously asserted and brought into the administration by the personal representative, remain in the heir or devisee, unimpaired and unaffected by the unexecuted power to possess, conferred by our statutes on the personal representative. We may go further, and hold that, pending administration, it is only the actual possession of the personal representative, or his asserted right thereto, followed up by proceedings to obtain possession, or his asserted right to the rents, income and profits, that can take away, or suspend, the right of the heir (or devisee) to prosecute a suit for the possession of lands descended or devised, or any other action which such heir (or devisee) could maintain by the rules of the common law. It requires action by the personal representative to devest the heir of his right to the .inheritance, with all its common-law incidents; and in the absence of action, effective action, the right remains with the heir.

Under these principles, we do not think Mr. Olay ever took or had such possession or control of the premises, as to suspend, or oust the possession of the heir. His attempt to let the house to rent failed for want of compliance, on the part of the proposed lessee, with the terms of the letting; and he not only did not sell, but made no attempt to sell, under the order of court obtained for the purpose. . These initiatory steps, as we have seen, do not amount to a taking of possession by the personal representative. The Circuit Court erred in not giving the first charge asked by plaintiff. The court should also have given charges numbered 5 and 6, as so asked.

Section 101 of the ordinances of the city of Huntsville, after providing for the sale of real estate, and certificate thereof, for the non-payment of taxes due the city, ordains as follows: “ It is the duty of the collector to put the purchaser in possession of the premises sold to him, within thirty days after the execution of the certificate; and such certificate shall be evidence of a right to possess the premises therein specified, and to retain them until redeemed as provided by the charter; and if necessary, the mayor is authorized to direct the police to put the purchaser in possession. If the property is not redeemed within the time prescribed by the charter, the certificate shall operate as a deed of conveyance.” This certificate, the form of which is given in the ordinance, recites the material facts necessary to authorize a sale for taxes, and recites the sale, purchase, and payment of the purchase-money, The certificate also states that the purchaser, having paid the purchase-money, “ is entitled to the immediate possession.” The point is. made, that the charter of the city of Huntsville is not broad enough to authorize the extreme powers the ordinance confers on the collector, the mayor, and the police. The rule is, that powers, such as this, can only be exercised by corporations, when they are granted by clear expression in the charter. — Boyd v. The State, 61 Ala. 177. But there is a graver question, which renders a decision of this unnecessary.

In the Bill or Declaration of Rights, article I of our several constitutions, it is declared, that no person shall be deprived of his property, but by due course, or process of law. Constitution of 1819, § 10; of 1861, § 10; of 1865, § 7; of 1868, § 8 ; of 1875, § 7. The principle of this provision was adopted from Magna Oharta. It is here uged, that the provisions of the ordinance copied above violate this fundamental principle of constitutional right, and are therefore inoperative, In our own case of Dorman v. The State, 34 Ala. 216, justly entitled to be classed as a great case — great alike in the profound research it displays, the clear logic of its conclusions, and the elegant diction in which it is expressed — this provision of the constitution came before this.court for interpretation. It was there said : “ The expressions, ‘ the law of the land,’ due process of law,’ and ‘ due course of law,’ as found respectively in the English charters and in the various State constitutions in the United States, are substantially identical, and have always been held to mean a judicial proceeding regularly conducted in a court of justice, as contradistinguished from statutory enactment. . . An act of the legislature is not, and nothing less than a regular judicial trial is-, ‘ due course of law,’ within the meaning of this clause of the constitution.”

.It will be observed that, under the provisions of the ordinance copied above, the collector, without any judgment of a court, or judicial ascertainment of the facts, may put the purchaser in possession of lands sold for taxes, and, “ if necessary ” — that is, “if the tax-payer refuses to yield possession without force — the mayor is authorized to direct the police to put the purchaser in possession;” and the “certificate shall be evidence of a right to possess the premises therein specified, and to retain them until redeemed;” and “ if the property is not redeemed within the time prescribed by the charter, the certificate shall operate as a deed of conveyance.” To summarize : All the various and well-regarded processes by which taxes are levied and assessed, the fact that the taxpayer is in default, the unsuccessful inquiry and search for personal property, the due and legal advertisement and sale; all these disputable facts are proved by the collector’s certificate. The purchaser is then put in possession by force (the certificate authorizes the force, and legalizes the purchaser’s possession for two years, unless the property is sooner redeemed); and if not redeemed within the two years, the certificate operates as a deed of conveyance, and the title, as well as the seizin of the tax-payer, is gone forever, by mere legislative enactment, without the semblance of judicial proceedings.

An ordinance of the city of Selma provided, that a purchaser of lands at tax-collector’s sale might recover possession. if withheld from him, by action of unlawful detainer before a justice of the peace. The case of Ex parte Webb, 58 Ala. 109, made it necessary to construe that ordinance. We said: “ The proceeding by the purchaser at the tax-sale is founded on the theory, that he has acquired title by his purchase, and the title draws to it the possession. . . Unless the party proceeded against is deprived of all right of defense, or his right of defense is narrowed and circumscribed, so that generally it would be valueless, there must, of necessity, be an inquiry into the estate, or merits of the title. . . A legislative declaration, that the party withholding the possession is guilty of an unlawful detainer,.and that suit for the recovery of possession, and damages for the detention, may be commenced before a justice of the peace, can not be so construed as, in effect, to disseize a man of his freehold, and convert his estate into a mere right of action.” See, also, Stoudenmire v. Brown, 48 Ala. 699; S. C., 57 Ala. 481; Doe, ex dem. Davis v. Minge, 56 Ala. 121.

In Cooley’s Const. Lim. 363, it is said: “ Forfeitures of rights and property can not be adjudged by legislative act; and confiscations, without a judicial hearing afte? due notice^ would be void, as not being due process of law.” And on page 368-9, the same standard author says: “In judicial investigations, the law of the land requires an opportunity for a trial; and there can he no trial, if only one party is suffered to produce his proofs. The most formal conveyance may be a fraud, or a forgery; public officers may connive with rogues, to rob the citizen of his property; witnesses may testify, or officers certify falsely, and records may be collusively manufactured‘for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice, or of constitutional law. A statute, therefore, which should make a tax-deed conclusive evidence of a complete title, and preclude the owner of the original title from showing its invalidity, would be void, because being not a law regulating evidence, but an unconstitutional confiscation of property.” And in Cooley on Taxation, 377, it is said : “It would be manifest and. most gross injustice, to make lapse of time alone extinguish the owner’s title. . . And it seems to us very clear that, under such circumstances, it is not competent to limit a period, at the expiration of which the tax-title shall become a perfect title, and not open to controversy or dispute.” — Blackwell on Tax-Titles, 449, in margin.

In Burroughs on Taxation, 336, it is said: “ The doctrine is settled, that it is not in the power of the legislature, by mere legislative declaration, to devest the title of the owner.” In Denny v. Mattoon, 2 Allen, 361, 378, the court employs the following language : “ If, for example, the practical operation of a statute is to determine adversary suits pending between party and party, by substituting in the place of the well-settled rules of law the arbitrary will of the legislature, and thereby controlling the action of the tribunal before which the suits are pending; no one can doubt that it would be an unauthorized act of legislation, because it directly infringes on the peculiar and appropriate functions of the judiciary.” — See, also, Richards v. Rate, 68 Penn. St. 248; State of Maine v. Doherty, 60 Maine, 504; Conway v. Cable, 37 Ill. 82.

These principles and authorities are decisive of the question we are considering. The ordinance is but an act of’legislation, and possesses none of the properties of a judicial proceeding. It is violative of the constitution, and therefore void, to. the extent above pointed out; because it deprives the tax-payer of his property, without due course of law, The collector’s certificate neither authorized Eletcher to take possession without the owner’s consent, nor did it authorize tbe collector to put him in possession of tbe property, thus in possession of Miss Oalbonn by her agent or servant. The Circuit Court erred in giving tbe 12th clause of the general charge to tbe jury, and in refusing to give charge requested by plaintiff number 2. Charges numbered 7 and 8 are probably a little too broad. They ask that tbe whole ordinance (No. 101) be pronounced unconstitutional. Many of its provisions are free from constitutional objection.

We consider it unnecessary to decide any other questions raised by tbe record.

Reversed and remanded.