Johnson v. Harper , 107 Ala. 706 ( 1894 )

HEAL, J.

This is an action of ejectment brought by the appellee against the appellant, basing his right to recover on a tax deed, made to him, as the purchaser of the land, at a sale for State and county taxes. The defendant in the court below objected to the introduction of the deed, because there was no evidence that the lands described in the deed were advertised for sale by the tax collector before he sold the same. There is no recital in the deed to the effect that such advertisement was made, nor was there any independent proof thereof. While it may not have been erroneous to allow the deed to be read at the time it was offered, since the court could not know that proof would not be adduced to show that the sale had been advertised as required by law, yet without such proof the plaintiff failed to establish a good title, and the court erred in giving the general affirmative charge in his behalf.

Under our statutory system, wheo real estate is sold for taxes, a certificate of purchase is executed to the purchaser by the tax collector who makes the sale. — Code, § 581. This certificate may be surrendered after the time for redemption has expired, and a deed obtained from the probate judge. Section 593 of the Code provides how such deed shall be executed and declares “that it shall be, in all the courts of the State, prima facie evidence of the facts recited therein, in any controversy, proceeding or suit involving or concerning the rights of the purchaser, his heirs or assigns to the real estate thereby conveyed.” The statute does not prescribe the form of the deed nor provide what it shall contain. We do not doubt that if the deed in question had recited the fact of advertisement of sale, it would have been prima facie proof thereof. We do not doubt, furthermore, that it was absolutely necessary to the validity of the sale, that the land should have been advertised as provided bjr § 576 of the Code, and that without such advertisement the sale was void. We hold, moreover, that it devolved on the purchaser to • show that such advertisement had been made, as well as to establish every other fact essential to the validity of the sale. Many of these necessary prerequisites were sufficiently shown, in the absence of all evidence to the contrary, by the recitals of the deed, but the fact of advertisement was not so shown. It was expressly held in the case of Clarke v. Rowan, 53 Ala. 400, that it was essential to the validity of a tax collector’s deed, under the revenue law of 1868, “that the land should have been advertised for the time prescribed, posted as required, that the advertisement should state the amount of taxes and costs,” and that a disregard of any of those requirements rendered the sale void. It was held, moreover, that it devolved on the purchaser at the sale to prove the fact of such advertisement, and that it had been made as required by the statute.

■We have many times said that in a sale of land for taxes great strictness is required. To divest an individual of his property against his consent, every substantial requirement of the law must be complied with. No presumption can be raised in behalf of a collector who sells real estate for taxes, to cure any radical defect in its proceedings ; and the proof of regularity devolves upon the person who claims under the collector’s sale. Clarke v. Rowan, supra; Oliver v. Robinson, 58 Ala. 46; Dane v. Clennon, 72 Ala. 160; Feagin v. Jones, 94 Ala. 600; Black on Tax Titles,.§ 205; Cooley, on Taxation, pp. 472, 482, 517. In the authority last cited, it is said ■ to be an accepted axiom, when tax sales are under consideration, that “a fundamental condition to their validity is, that there should have been a substantial compliance with the law, in. all 'the proceedings of which the sale was.tlie culmination,. This would be the general rule in >11 cases in which a man. is to be divested 'of his' - freehold by adversary proceedings, but special reasons make it peculiarly applicable to tax sales.” — Cooley on, Taxation, 324. Under the present law there are many things required to be done in the assessment and collection of taxes, preceding the rendition of the decree by the probate judge or court for the sale of land for taxes, of the performance of which that decree maybe conclusive, but the advertisement of the sale, being subsequent, is, of course, unaffected by the decree.

The considerations which prohibit the collateral impeachment of a sheriffs deed for a failure to advertise the sale, have no application to the present case. One of the controlling reasons why the defendant in execution is not permitted to attack the deed collaterally, is because the court where the judgment exists can control the improper action of the sheriff and set his proceedings aside if any injury has resulted from his irregularities. Ware v. Bradford, 2 Ala. 676. No such safe and speedy remedy can be invoked by the owner of lands which are sold for the non-payment of taxes. Most especially is this true if the lands be assessed to “owner unknown.” Without stopping to inquire into all the reasons that may exist for the distinction mentioned, it is sufficient to remark that a sale by a tax collector is in execution of a special power expressly delegated, and the rule is general that in the execution of such power, it must be shown that the statute was strictly complied with. A sale by a sheriff under execution from a court of general jurisdiction is not so regarded, and there are many reasons of public policy and convenience for not allowing such a sale to be attacked for any mere irregularity or misconduct on the part of the officer. The distinction between the two classes of cases is clearly drawn in Brooks v. Rooney, 11 Georgia, 423, s. c. 56 Am. Dec. 430 and note.

Reversed and remanded.