Lassitter v. Lee , 68 Ala. 287 ( 1880 )

SOMERYILLE, J.

This is an action of ejectment, or á real action in the nature thereof, brought under the statute. The defendant relied on a title acquired by purchase at a tax sale on June 6fch, 1870, a few months after which he went into possession under a certificate of purchase from the tax "collector, receiving a deed from the probate judge within the time prescribed by law.

The first ruling of the court assigned for error is the sustaining of the plaintiff’s demurrer to the plea in abatement filed by defendant. This ruling, in effect, pronounced section 98 of the Revenue Law of December 31, 1868 (Session Acts, 1868, p. 327), to be unconstitutional. It is in the following language:

“Sec. 93. Be it further enacted, That before any person, claiming title to real property sold for taxes under this act, shall be entitled to prosecute or defend any suit against any person claiming such property under any tax sale, he shall deposit with the court having jurisdiction in the case, double the amount of the purchase money, together with all taxes and interest accruing since the sale, the value of improvements made by the purchasers, said improvements to be valued by three disinterested persons, and the probable amount of costs of suit.”

We think this section is clearly unconstitutional, as an unwarrantable infraction of several provisions of the fundamental law of the State. This was expressly so held in the case of Whitworth v. Anderson, 54 Ala. 33, and we fully concur in tbe conclusion there announced.

It is an unreasonable condition attached to the right of suit in the courts, and is violative of section 12, article 1, of the constitution of 1868, which declared that “no person shall be debarred from prosecuting or defending, before any tribunal in this. State, by himself, or counsel, any civil cause to which he is a party.” Such conditions are indirect prohibitions.

It is also repugnant to section 15 of .the same article, which provided that “all courts shall be open, and that every person for any injury done him, in his lands, goods, person or reputation-, shall have a remedy by due process of law; and right and justice shall be administered ivithout sale, denial or delay.”

It may be that reasonable tax-fees, imposed by law against unsuccessful litigants, and not unjustly discriminating-, would not be in contravention of these provisions.—Harrison v. Willis (7 Heisk. 35), 19 Amer. Rep. 604. Or that a payment or deposit of the legal taxes due on land with costs, for which the sale in question may have been made, could be sustained, as a reasonable condition.—Cooley on Tax. (1876) p. 376, 320. But where such a condition precedent is so unreasonable as to seriously impede, impair or cripple the rights designed to be guaranteed by these articles of the constitution, it can not be upheld or sustained by the courts.—Wilson v. McKenna, 52 Ill. 43; Reed v. Tyler, 56 Ill. 288; Weller v. St. Paul, 5 Minn. 95; Cooley on Tax. 320, 373; South & North Ala. R. R. v. Morris, 65 Ala. 193.

If the assessment of the land sold at tax sale was regular, and the sale was otherwise conducted according to the requirements of the statute, it would not be rendered fraudulent or void, or its validity affected, by the mere knowledge of the purchaser, that the owner was known at the time the assessment was made, although made to “owner unknown The knowledge of the purchaser is a fact totally irrelevant to the question of the legality of the sale. It is not enumerated among the grounds which render such sale void, and the court erred in so holding.

In Jones v. Randle, ante p. 258, it was settled, that the statute of limitations of five years, prescribed by section 92 of the Revenue Law of 1868 (Acts 1868, p. 327), commenced to run from the delivery of the tax deed to the purchaser, which is construed to be tbe true date of the sale, in contemplation of the statute. No action will lie for the recovery of real estate sold for taxes after the lapse of five years from such date. This law has the force, purpose and effect, in a proper case, of an ordinary statute of limitations.

And as the revenue law (section 87) makes a tax deed, executed in substantial conformity to its provisions, to be prima facie evidence, in all the courts of the State, that the land conveyed was subject to taxation for the year or years stated in the deed, and that the taxes were not paid at any time before the sale, the statute of five years limitation would be available, even though the taxes had been paid by the owner at the time the sale was made.—Stoudenmire v. Brown, 57 Ala. 481. And though the sale may have been void, ber cause the assessment was made to “owner unknown,” while the owner was in open occupation of the land, as held in Oliver v. Robinson, 58 Ala. 46, this would not preclude or stop the running of the statute of limitations under the provisions of section 92 of said revenue law. Whether the sale be valid or void, the occupancy of the land under a tax deed, executed and delivered in conformity to law, for a period of five years from such delivery, would be a good defence to the action.

Some other points are raised by the record, which are not likely to arise on a second trial, and are not therefore considered.

Under these views we are compelled to reverse the judgment of the lower court, and remand the cause, which is hereby done accordingly.