Gamble v. Andrews , 187 Ala. 302 ( 1914 )

SAYRE, J.

Appellants, as executrix and executor of F. A. Cambie, deceased, filed this bill on the equity side of the circuit court of Walker to- clear up the title to lands which had belonged to their testator. At the hearing it appeared that testator had owned the lands, which lay in several separate parcels, and that in 1893 and 1894, while testator was yet alive, they had been sold for taxes assessed to “owner unknown/’ and had been bought in by the state, and that in 1903 the state auditor had sold to J. H. White, under whom defendant claimed, by mesne conveyances. The validity of the proceedings by which White acquired his title is questioned.

The case was heard upon an agreed statement of facts, and appellants insist that this agreement fails to disclose a valid levy by the court of county commissioners. It is enough to say at this point that the statement of facts contains a recital that there was a proper assessment for taxes due and unpaid, and thus, inferentially at least, asserts a valid levy. It is most reasonable to presume that, if applicants had intended to raise any question in respect to the validity of the levy, a statement that there had been none, or of the deficiency or error in the record of any levy made, would have found a place in the agreement. For these reasons we decline to adjudge the casé upon the assumption that there was no valid levy.'

Section 572 of the Code of 1886, of force at the-time of the proceeding under review, except as amended by the act of February 28, 1887 (Acts, p. 8 et seq.), provided that, after the tax collector prepared his docket of delinquencies and delivered it to the judge of probate, notice should be given, in the case of an assessment to “Owner unknown,” by publication for three weeks before the term of the court at which a decree for the sale of the land would be considered. The agreement recites at one place that the judge of probate “gave due and proper notice,” and at another that “said notice was properly given by publication for ten days before the date for the hearing.” Appellants contend that this recital shows a notice by publication for ten days only, and cites Smith v. Cox, 115 Ala. 503, 22 South. 78, to the proposition that the notice required by the statute was essential to the validity of a tax title. Here, as elsewhere, in the argument for errors and deficiencies in the record of the proceedings for a sale of the property, we think appellants have misconceived the operation and effect of the agreed statement of facts. The burden was on appellee to show a good title. Great strictness is required in proceedings for the sale of lands for taxes, and statutory provisions are to be pursued with a certain degree of punctiliousness, Avhere the statute itself does not prescribe a more lenient rule; but it does not folloAv from this that the agreement upon which the parties submitted their controversy for judicial decision must be construed Avith special favor to the party claiming against the tax title. The statement of facts must be construed without favor to either party as the mutual expression of an agreement into Avhich they have voluntarily entered for the purpose of laying before the court the facts, and especially their points of difference. It does not exhibit the record in it entirely.' For the most part it undertakes to exhibit the effect of the probate record, and to show errors and omissions, not by quoting the record, but in the language of the parties. The result is that, to reach the question of the title shown by the record, we must first construe the agreement of the parties. On the point just here under consideration, the agreement is ambiguous and needs construction. Such being the case, it is proper to impute ambiguity to the agreement rather than to the probate record. In other words, Ave presume a record of regularity, unless the contrary is affirmatively shoAvn. This method leads us to the conclusion that publication Avas made as provided by the statute.

Other points taken against the probate record have been duly considered. We do not deem it necessary to make an extended statement of them. We hold, upon the statements of the agreement, that no irregularity or omission of any consequence is shoAvn. The agreement shows an error in the date advertised for the sale of one-parcel of the land. This is evidently a clerical lapse either in the agreement or in the probate record. If the error occurred in the record, it appears upon consideration of the whole record, as put before us in the agreement, to be self-corrective and harmless.

The tax collector did not append an affidavit to the docket delivered to the probate court showing that he had made diligent search and had been unable to find sufficient personal property from which to make the tax. In the case of an assessment to “owner unknown,” such affidavit could have served no purpose and was not necessary to the validity of the proceeding.—Cary v. Holmes, 109 Ala. 217, 19 South. 723.

The decree of sale followed the prescribed form substantially. The statute in that particular required no more.—Code 1886, § 573.

It is further contended by appellants that the auditor, in selling the land to White, failed in some respects to follow the prescriptions of-section 4101 of the Code of 1886. Section 4 of the act of February 15, 1899 (Gen. Acts 1898-99, p. 120), operated to repeal section 4101 of the Code.—Brandon v. Williams, 157 Ala. 386, 47 South. 199. But appellants say that this act is unconstitutional for that it contains more than one subject in both its title and its body. There was an effort to raise this question in Brandon v. Williams, supra, but that case was put off on another point. We think no valid objection can be taken to the statute on the guound assigned. The most general subject expressed in the title is “to regulate and provide for the sale and redemption of real estate bid in by the state at tax sale.” The legislative purpose fairly expressed by this much of the title is-quite broad enough to comprehend the rest of it and all the provisions of the act. All the provisions of the-act are legitimately cognate to this one broad subject, and it affords no constitutional ground of objection that the title, in addition to its sufficient general statement of the subject of the act, states also two of the minor cognate and included subjects in the way of an incomplete index to, or- abstract of, the contents of the act. In short, we treat those expressions of the title, which precede the quoted part of it, as surplusage. The title and the act would have complied with the requirement of the Constitution as well without them.-—State v. Board of Revenue, 180 Ala. 489, 61 South. 368.

Finally it is insisted the agreed statement of facts fails to show that the auditor complied with the provisions of section 4 of the act. It is said that there is no evidence in the record to show that he secured the Governor’s approval of a private sale of this land, nor that the price was fixed by the auditor and the treasurer. Evidently the agreed statement of facts and the record for this court were not prepared with a view to raising these questions. The agreed statement of facts recites that:

“The state auditor executed to the said J. H. White, on the said 10th day of January, 1903, a deed conveying all of said lands to him.”

Then follows a statement that the auditor did not mail to any person interested in said lands, or to the probate judge of Walker county, any notice that an application to purchase the land had been made, and fixing a time within which the owner or any other person having an interest might redeem.. That the question suggested by this last statement of fact was waived in the court below is affirmatively shown by the chancellor’s decree. His disposition of it is entirely satisfactory to us. It must have satisfied counsel for appellants, for he does not renew the discussion on this appeal. He does, however, still insist that the record fails to show the Governor’s approval or that the auditor and treasurer fixed the price. The agreed statement of acts does not deny that the statute was followed in these respects. The note of submission and the chancellor’s decree both show that the auditor’s deed was before the court. It does not appear in the record here. It may have contained a recital of the facts which appellants claim the record fails to show. The chancellor’s opinion, which may be considered in explanation of his decree, shows that the auditor’s deed did recite the necessary facts. The auditor’s deed passed no title if the state had no' title.—Fleming v. McGee, 81 Ala. 409, 1 South. 106. And the fact that he made a deed and its recitals proved nothing in respect to the validity of the proceedings by which the state assumed to have acquired title.—Vadeboncoeur v. Harmon, 159 Ala. 617, 49 South. 292; Trotter v. Moog, 150 Ala. 460, 48 South. 710. But, as we believe we have sufficiently shown, it must be assumed on the record before us, and for the purposes of this appeal, that appellee proved a substantial compliance with the law in the proceedings had in the probate court, and therefore that title had vested in the state.—Hooper v. Bankhead, 171 Ala. 626, 54 South. 549. No reason occurs to us why, in an action between the parties to this record, the recitals of the deed as to facts essential to the valid execution of that instrument by an agent of the state, having authority to execute it, should not be accepted as prima facieproof at least of those facts. ’ Besides, there is a presumption that public officials have discharged their duty; nothing to the contrary appearing. This presumption is not indulged to sustain the proceedings by which the title was divested out of appellant’s testator, but it may be properly allowed to show prima facie that the state’s title has passed to appellee. It was allowed so to operate in Barry v. Stephens, 176 Ala. 93, 57 South. 467.

By a plain inadvertence the chancellor’s decree included the N. E. % of S. E. 14 of section 7, township 13, range 10. This 40-acre tract had been described in the original bill as a part of the subject-matter of the litigation. But it had been stricken by amendment, which was overlooked. As for anything appearing in the record before us, there was no other error in the decree rendered below. After the amendment the court was without power to adjudge anything in respect to the N. E. % of S. E. % of section 7. The decree will be corrected, and, as corrected, will he affirmed. The chancellor may order a corresponding correction in the record of the decree below.

Corrected and affirmed.

Anderson, C. J., and MoCdellan and de Graepenried, JJM concur.