Howard v. Tollett , 202 Ala. 11 ( 1918 )

It matters not whether the sale and notice thereof was governed by the Code of 1907, or the law prior to the adoption of same, as section 2279 of the Code of 1907 and section 4057 of the Code of 1896 are identical as to the notice to be given by the tax collector, and which provide for 30 days' notice before the sale by publication for 3 weeks in a county newspaper and the posting of a notice at the courthouse and at some public place in the precinct in which the real estate is situated for at least 3 weeks previous to the day of sale. It has been repeatedly held that the burden is upon him who claims land under a tax deed to show a substantial compliance with the statutory provisions, and in the absence of such proof no validity attaches to a deed made in pursuance of a tax sale. McKinnon v. Mixon, 128 Ala. 612, 29 So. 690; Johnson v. Harper, 107 Ala. 706, 18 So. 198; Nat. Bank v. Baker Hill Co., 108 Ala. 635, 19 So. 47; Reddick v. Long, 124 Ala. 260,27 So. 402; Baines v. Williams, 195 Ala. 525, 70 So. 644. The appellant having failed to prove the posting of notice as the statute required in the precinct where the land was located, the trial court did not err in excluding the auditor's deed as muniment of title, and it does not appear to have been offered for any other purpose.

It is true section 2297 of the Code of 1907 makes the recitals of the deed prima facie evidence of the proceedings therein recited; but this section applies to deeds by the probate judge, and not the auditor. Vadeboncoeur v. Hannon,159 Ala. 617, 49 So. 292; Baines v. Williams, supra. We do not mean to hold, however, if said statute applied to the deed in question, that its general recitals by way of conclusion as to the legality and regularity of the proceedings would be prima facie evidence of each required step. In other words, in dealing with the notice, the deed should recite the kind and character of the notice, and not merely say that it had been legally or regularly given.

It has been held that the short statute of limitations (section 2311 of the Code of 1907) applies to tax sales by the state as well as by the collector, having been made so by section 2325 of the Code of 1907. It seems that this short statute of limitations operates to cut off the right to contest the sale for irregularities, or upon grounds other than the ones provided by said section 2311. Evers v. Matthews, 192 Ala. 181,68 So. 182. This statute, however, does not begin to run until the possession of the land sold at the tax sale is taken or acquired. Long v. Boast, 153 Ala. 428, 44 So. 955. The appellant did not show possession of the land involved for three years before the commencement of the suit, and could not, therefore, invoke the short statute of limitations. The plaintiff's evidence showed the appellant's possession during the years 1916 and 1917, but there was no proof that he had possession for three years.

The trial court did not err in not letting the collector prove the notice by showing what had been his general custom. Nor can we assume that the land was situated in the courthouse precinct, so as to make the posting upon the courthouse sufficient.

The judgment of the circuit court is affirmed.

Affirmed.

McCLELLAN, SAYRE, and GARDNER, JJ., concur.