Flowers v. Jernigan , 116 Ala. 516 ( 1897 )

HEAD, J.

We are constrained to hold that the tax deed of the judge of probate to D. W. Jernigan, dated March 31, 1884, purporting to have been executed in pursuance of a sale of the land by the tax collector on the first Monday in April, 1876, for the payment of taxes for the year 1875, was improperly admitted in evidence. The deed, as we have said, bears date of execution March 31, 1884 ; it was recorded the same day ; but, it was not acknowledged at all until August 17, 1885, and was not thereafter recorded. Its legal effect, as a conveyance, is governed by section 460 of the Code of 1876, then in operation. That section provides as follows : “The deed shall be signed by the probate judge in his official capacity, and acknowledged by him before some officer authorized to take acknowledgments of deeds ; and when substantially thus executed and recorded in the proper record of titles to real property, shall vest in the purchaser all right, title, interest and estate of the former owner in and to the land conveyed, and also the right, title, interest and claim of the State and county thereto, and shall be prima facie evidence in all the courts of this State, in all controversies and suits in relation to the rights of the purchaser, M£ heirs or assigns, to the land thereby conveyed, of the facts recited in the deed.”

The preceding section prescribed forms of deed and certificate of acknowledgment.

It is plain that said section 460 makes the acknowledgment there required a substantial and essential part of the execution of the deed, and that, as necessary to a conveyance of the title, it must be so executed prior to its registration. The instrument in question, at the time of its registration, and as recorded, was of no validity whatever. It bore no legal evidence whatever of its execution. It was no deed. Nor did if become operative as a conveyance by the acknowledgment made afterwards, for the reason that, in that condition, it was never recorded as said section 460 required. — Bolling v. Smith, 79 Ala. 535; Jackson v. Kirksey, 110 Ala. 547.

' If the plaintiff had shown possession of the land under the supposed tax deed for five years, the special statute of limitations of five years (or of three years as it was subsequently amended) under the revenue law, would not have availed him, for the reason that that period does not begin to run until the legal execution and recording of the deed, whereby the title passes, if, in respect of other requirements, the sale is regular. — Doe ex dem. Hughes v. Anderson, 79 Ala. 209; Bolling v. Smith, supra.

The tax deed, therefore, can be of no force or effect in this action. There was no evidence of adverse possession under it for ten years whereby it might serve as color of title.

The plaintiff, then, is left without a case. The quitclaim of Roberts to Ms grantor is of no avail, for Roberts is not shown to have had any title to, or connection with, the land, except that he was the bidder at the tax sale to whom the land was knocked down, and received the tax collector’s certificate of purchase, which he assigned to plaintiff’s vendor,

There was some testimony on the subject of possession by Roberts and his vendees. Whether it was sufficient to raise a presumption of title we need not decide, since the possession of the defendants and those through whom they claim was anterior to theirs. It is not material, therefore, to notice the title set up by the defendants.

The general affirmative charge ought to have been given for the defendants. *

Reversed and remanded.