Opinion
4 Div. 126.
December 18, 1924. Rehearing Denied January 22, 1925.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Farmer, Merrill Farmer, of Dothan, for appellants.
The short statute of limitations applies to the tax sale under which the defendants claim. Williams v. Oates, 209 Ala. 683, 96 So. 880. A certified copy of a conveyance may be received only when the original has been lost or destroyed. Code 1907, § 3374; Driver v. Fitzpatrick, 209 Ala. 34, 95 So. 466; Acree v. Shaw, 202 Ala. 433, 80 So. 817. The plat offered by plaintiff was inadmissible. Code 1907, §§ 6028, 6029, 6039; Manning v. House, 211 Ala. 570, 100 So. 772. The sheriff's deed, not being supported by a prior valid execution, was improperly admitted. Acts 1923, p. 629, does not apply. Reddick v. Long, 124 Ala. 260, 27 So. 402. Plaintiff did not bring himself within the exceptions in section 2311 of the Code of 1907, and defendants were entitled to the affirmative charge.
T. M. Espy and L. S. Hodnett, both of Dothan, and Hill, Hill, Whiting, Thomas Rives, of Montgomery, for appellee.
There was no error in admission of certified copies of conveyances offered by plaintiff. Code 1907, § 3374; Acree v. Shaw, 202 Ala. 433, 80 So. 817. The plat was properly received in evidence. Thrasher v. Royster, 187 Ala. 352, 65 So. 796; Driver v. King, 145 Ala. 595, 40 So. 315; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182; 19 C. J. 1164. The sheriff's deed was prima facie evidence of the facts therein recited. Code 1923, § 7706; Brannan v. Henry, 175 Ala. 454, 57 So. 967; B. T. Co. v. Curry, 175 Ala. 373, 57 So. 962; Dickson v. Ala. M. S. Co., 18 Ala. App. 164, 89 So. 843; W. U. Tel. Co. v. L. N., 199 Ala. 441, 74 So. 946. A certificate of purchase under the power of sale in a mortgage vests in the purchaser the same title that would pass under a foreclosure deed. Bellenger v. Whitt, 208 Ala. 655, 95 So. 10. In the absence of any evidence to the contrary, it will be presumed that the foreclosure was regular. Harton v. Little, 176 Ala. 267, 57 So. 851.
The affirmative charge was requested by and denied to defendants in this statutory action in the nature of ejectment. A phase of this case was before the court in Williams v. Oates, 209 Ala. 683, 96 So. 880. The appellants state they defend under and by virtue of a tax title, coupled with the fact that they were in possession of the land and remained in possession of it for more than three years after the purchaser at the tax sale became entitled to demand a deed therefor. Thus are presented the merits of appellants' claim, if they are to prevail in this suit.
Several questions arose on the introduction of evidence, and rulings thereon are presented for review. The assignments of error insisted upon will be considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.
The evidence is silent as to the possession of the ancient deeds admitted in evidence. In the absence of proof to the contrary, or suspicious circumstances, said deeds are presumed to have been retained by the respective grantees therein. Under such state of the evidence a duly certified transcript of the record thereof was properly received in evidence to prove the deed. Ray v. Farrow, 211 Ala. 445, 100 So. 868; McMillan v. Aiken, 205 Ala. 35, 88 So. 135. The proper predicate was required in Driver v. Fitzpatrick, 209 Ala. 34, 95 So. 466, to authorize, under the statute (Code 1907, § 3374), the introduction in evidence of plaintiff's deed from his grantee. This holding was consistent with the line of cases having application. In Acree v. Shaw, 202 Ala. 433, 80 So. 817, it was the deed to plaintiff's ancestor (made nine years before the suit) which was sought to be introduced in evidence; in Florence Land, Mining Mfg. Co. v. Warren, 91 Ala. 533, 9 So. 384, a tax deed was offered. Judge Stone there declared that, in the absence of all proof to the contrary, the law presumes the deed remains with the grantee, and made the observation that there was nothing in the evidence tending to raise any other presumption as to the custody of the deed in question. In the case of Beard v. Ryan, 78 Ala. 37, the proof was of an ancient deed, and record copies were properly received. The holding in Hendon v. White, 52 Ala. 597, was that the title deeds of a defendant whose estate had been sold and conveyed under compulsory legal process are not presumed to be in the possession or under the control of the purchaser, and the latter need only introduce a duly certified transcript of the record of the deed, without accounting for the original. There was no error in admitting in evidence certified copies of the record (or the record itself) of the deeds from the Arnolds to J. W. Powell, the record of deed from Powell and wife to S. B. Youngblood, the original deed from said Youngblood and wife to C. E. Sellers, and the mortgage from said Sellers and wife to William C. Oates. As to the latter instrument due predicate was laid, showing that plaintiff did not have the custody or control of said conveyance.
The agreement between Farmer, Powell, and Oates, of date November 5, 1908, was introduced in original form; also the original warranty deed and plat from Powell and Farmer to plaintiff, Oates. Aside from the mortgage, these were the only conveyances passing to plaintiff or his ancestor. As to those there was compliance with section 3374 of the Code of 1907, as construed in Acree v. Shaw, 202 Ala. 433, 80 So. 817, in the respects for which they were challenged. Oates testified the map prepared by authority was delivered to him by the grantees in the deed just before the delivery of the warranty deed of Farmer Powell. It did not depend upon the statute (section 6028 of the Code of 1907) for authority of its evidentiary effect. An unrecorded map as a part of a conveyance of a subdivision was discussed in Manning v. House, 211 Ala. 570, 100 So. 772, and the conclusion there announced would not exclude the instant map. The map was sufficiently described in the deed, the lands conveyed with reference thereto, and it was adopted as a part of the conveyance shown to be correct, identified the land in controversy, and it was delivered with the deed or a short time before. It was in support, and not a contradiction, of the language of the deed. No error was committed in receiving the original deed and map of the northeast addition of Dothan in evidence. See Thrasher v. Royster, 187 Ala. 350, 65 So. 796; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182; Driver v. King, 145 Ala. 585, 40 So. 315; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154.
The certificate of foreclosure of the mortgage by Sellers to Oates was introduced in evidence over the objection and exception of defendants. Only general grounds of objection were urged against its introduction in evidence. The mortgage was in evidence after its law day vesting the title in Oates, leaving in Sellers only the equity of redemption. The effect of the foreclosure cut off the equity and gave effect to the statutory right. Dinkins v. Latham, 202 Ala. 101, 79 So. 493. The matter of the right of redemption vel non could not affect the suit in ejectment. If it be a fact that the certificate was not self-proving and was admitted in evidence without such evidence, no reversible error would be presented, for the reason that the mortgage was properly introduced in evidence, as we have indicated. Moreover, the memorandum of sale by the auctioneer was not required to be witnessed by the statute of force at the time of the sale. Code 1907, § 4896; Bellenger v. Whitt, 208 Ala. 655, 95 So. 10; Clark v. House, 205 Ala. 195, 87 So. 593. In the absence of evidence to the contrary, the foreclosure of a mortgage, being shown, is presumed to be regular and valid. Harton v. Little, 176 Ala. 267, 269, 57 So. 851; Ward v. Ward, 108 Ala. 278, 19 So. 354. The certificate was prima facie evidence of the foreclosure, and not subject to the objections directed thereto.
It is true that, if unsupported by a valid execution, a sheriff's deed would be a nullity. Reddick v. Long, 124 Ala. 261, 27 So. 402. The fact that the page of the execution docket of the recited case failed to disclose the execution described in the deed was not sufficient to show the invalidity of that sheriff's deed, in view of the other recitals therein contained and the lack of evidence that there was no valid execution to support said deed. It has been held that an erroneous recital in such deed of the date of the issue of the execution under which the sale was made did not render the deed invalid. Davidson v. Kahn, 119 Ala. 364, 24 So. 583. The act of 1923 (Gen. Acts, p. 629) authorized the introduction in evidence of a sheriff's deed properly executed, it being provided that it be received without "independent proof of such facts or proceedings recited." The prescription by the Legislature of such a prima facie rule of evidence does not deny any substantive right of the defendant. The act was retroactive, and affected pending suits. Board of Revenue of Jefferson County v. Hewitt, 206 Ala. 405, 90 So. 781; Burnett v. Roman, 192 Ala. 188, 68 So. 353; Brannan v. Henry, 175 Ala. 454, 57 So. 967; Birmingham Trust Co. v. Currey, 175 Ala. 373, 57 So. 962, Ann. Cas. 1914D, 81; Dickson's Case, 206 Ala. 698, 89 So. 922. A jury question was presented by the recitals of the sheriff's deed as to whether it was founded upon one or more valid executions.
The record in the circuit court up to the judgment in the case of Farmer v. Sellers was properly admitted in evidence in support of the sheriff's deed. No reversible error intervened in declining to admit the one page of the execution docket offered by defendant, in the absence of an offer of the whole docket to show that no execution that would support the sheriff's deed had issued and was in the sheriff's hands at the time of the sale.
The contract of November 5, 1908, between Farmer, Powell, and Oates was collateral to the formal conveyances in consummation of their partition of these and other lands. It tended to show, with the other evidence, a joint ownership thereof for the time indicated. The specific objection that it was not self-proving was not urged against its introduction in evidence. And so of the deed from Powell to Farmer to a one-fourth interest in these lands. These instruments were witnessed by one person, and not acknowledged or probated, as provided by statute. The deed from Powell and wife and Farmer and wife to plaintiff (of date February 8, 1913), duly acknowledged, recorded, and received in evidence, recited a joint ownership of the lands, and that the conveyance was in execution of agreement to divide the same. There was no error in the introduction in evidence of said instruments, in view of the recited objections thereto and admission of the execution by the defendants.
It has been noted that the lands were conveyed with reference to and in accordance with a survey and plat thereof, recited to have been filed "in the office of the judge of probate in and for the county of Houston, state of Alabama, in Dothan, Ala., which said survey and plat is known as the survey and plat of the Northeast Addition to Dothan. The said plat was filed in the office of the judge of probate aforesaid on the __________ day of __________, A.D. 1912, and is hereby made a part hereof." The evidence was sufficient to show that Powell, Farmer, and Oates had the plat made and conveyed the respective lands with reference thereto. Manning v. House, 211 Ala. 570, 100 So. 772. Though the dedication of streets and ways was not made as provided by statute, still the parties to such conveyances were bound by such plat, though it was not recorded. City of Birmingham v. Graham, 202 Ala. 202, 79 So. 574. The map was so identified as to be competent evidence, with the conveyance; that is, the other evidence that it was delivered with the deed.
The pertinent inquiry of fact is, has the chain of title by which the plaintiff sought to connect himself to the government failed, by reason of nonpayment of the taxes, and sale of the lands therefor, during the years 1910 and 1911, and the possession of the land by a purchaser at such sale? It will be noted that plaintiff takes title through a warranty deed executed by H. A. Powell et al. The short statute of limitations was considered on former appeal. Williams v. Oates, 209 Ala. 683, 96 So. 880; Howard v. Tollett, 202 Ala. 11, 79 So. 309; Code 1907, § 2311. The lands sued for were duly assessed for 1910 taxes to Farmer, Powell, and Oates, and sold for nonpayment of the taxes to W. A. Brown, July 8, 1911; and the latter, on July 15, 1913, transferred, in writing, his interest under the tax sale to H. A. Powell, pursuant to the statute. Section 2289, Code 1907. The date of this payment by Powell is susceptible of different inference by the jury. Brown testified that Powell "paid" him, and that he transferred his certificate of purchase at tax sale. The date of that transfer was July 15, 1913, after the termination of the joint ownership of Powell, Farmer, and Oates in the lands. Brown further testified that this was the date of the payment of the taxes, etc., by Powell. The lands were again assessed to Powell, Farmer, and Oates for the year 1911, and no sale was made for default in payment under said agreement. It is without dispute in the evidence that Farmer, Powell, and Oates divided their lands, each receiving a conveyance to his moiety, and that on December 18, 1913, these and other lands were deeded to Powell by the judge of probate, pursuant to the purchase by W. A. Brown at the tax sale made July 8, 1911.
As to the payment (or the date thereof) of these and other taxes adverse inference might be drawn from the evidence. Powell says that he paid all the state and county taxes on this land for the year 1911; that he was given a receipt therefor, and that he did not know where such receipt was; that he had made a due and fruitless search therefor, and that it was among his papers in 1913 to 1919, during which latter year he moved to Florida and destroyed all useless papers, and that the receipt was lost or destroyed "in moving." In response to the question, "To whom did you pay these taxes?" Powell replied, "I paid the taxes on this land for the year 1911 to Mr. Smith Hall, who was then the tax collector" of Houston county, Ala. If he paid the taxes at that time, there was the relation of joint tenancy between Farmer, Powell, and Oates as to the quarter section in question, embracing the lands for which this suit is brought. And the payment of taxes by one tenant was in law a payment by and for the benefit of the other joint owners. The transfer by Brown of his certificate to Powell, and the deed pursuant thereto, must relate to the tax sale and be governed by the relations of the parties in interest as of the date of the tax sale. The taxes to state and county were paid by the sale of the owners' property. There is no plea of the short statute of limitations by Brown.
The foregoing testimony, and other evidence to be noted, afforded a basis for the inference that might have been drawn by the jury that the payment of all state and county taxes was made by the owners to and including 1911, and in that year. This is supported by admissions contained in the testimony of Smith Hall as follows:
"As tax collector, the tax receipt books for 1911 were in my custody. The C. E. Sellers taxes for 1911 have never been paid. The land involved in this suit was sold under that assessment for 1910 and 1911. The record of the sale is on these books here, already introduced in evidence. There was an assessment of the land involved in this suit against Farmer, Powell and Oates for the year 1910; but those taxes have never been paid except by sale of the land. W. A. Brown bought the land under the Farmer, Powell and Oates assessment. The land was assessed to Farmer, Powell and Oates for 1911. I tore the receipt for 1911 taxes out of the tax receipt book, and my recollection is that I took that receipt to B. G. Farmer's office to collect the taxes and he refused to pay them. I presented the receipt to B. G. Farmer along in June, 1912. At that time the taxes for 1911 under the Farmer, Powell and Oates assessment had not been paid, and B. G. Farmer refused to pay it. I have no recollection of H. A. Powell ever paying those taxes. I don't remember ever presenting the receipt for payment to anybody after I presented it to Mr. Farmer. After I presented the receipt to Mr. Farmer and he refused to pay it, I brought the receipt back to my office. I was tax collector of Houston county twelve years. I was first tax collector for the year 1909. I collected taxes from 4,000 to 5,000 people every year. The poll tax would bring it up to 6,000 or 7,000. I don't try to remember any particular assessment. I have no recollection of Powell ever paying these taxes. If he paid them, I don't recollect it. I don't tell the jury that he didn't pay them. * * * I made out a delinquent book for 1911, and you have the book there. It is a fact that the assessment against Farmer, Powell and Oates does not appear as delinquent. I know the plaintiff in this case. It seems like I remember Mr. Oates and Mr. Powell coming to see me in February or March, 1913. I don't remember that they asked me about the taxes on this land, and I don't remember that I told them that all the taxes had been paid on this land up to that time. * * * I know R. G. Crawford. I don't remember having a conversation with him about September 1st this year. I don't remember telling him that, in my best judgment, the taxes on the land involved in this suit had been paid."
That of the witness Crawford as follows:
"I know Smith Hall. About September 1st this year he told me that in his best judgment the taxes on the land involved in this suit had been paid."
And the plaintiff's testimony:
"I know Smith Hall. In February or March, 1913, H. A. Powell and I went to his office and had a conversation with him. He said in that conversation, after looking at his books, that the taxes on the land involved in this suit had been paid. * * * On the former trial of this case I testified that I had not paid the taxes on the land involved in this suit for the years of 1910 and 1911."
In McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135, the giving and refusing of the general affirmative charge was discussed, and the authorities collected. There was no error in refusing the affirmative instruction requested by defendants.
The exceptions to the short statute of limitations (section 2311 of the Code of 1907) are to the effect that its provisions do not apply (1) where the owner of real estate sold for taxes has paid the taxes for which the real estate was sold, prior to such sale; and (2) "to cases in which the real estate sold was not, at the time of the assessment, or of the sale, subject to taxation." And under the new statute (Code 1923, § 3107, not applicable to this case) it shall not "apply to void sales."
Adverting to appellants' claim, stated at the outset from brief of their counsel, it is based upon an assessment of the land for 1910 and 1911, a sale had on July 8, 1912, and a deed (dated July 9, 1914) purporting to convey to the purchasers, Carmichael Cummings, "all the right, title, and interest of the said C. E. Sellers, owner aforesaid of said land, and all the right, title, interest, and claim of the state and county on account of said taxes or under said decree" (of June 6, 1912) in and to these lands.
At the time of the assessment to Sellers and the decree and sale said Sellers had no interest in the land. His duly recorded mortgage, of date April 11, 1894, had been foreclosed (November 30, 1908), and Oates had become the purchaser. No redemption therefrom is shown to have been made, and the time therefor had expired before said tax decree and sale thereunder. Moreover, the sheriff's deed, dated August 16, 1897, duly recorded, showed the title was not in Sellers at such time of assessment, sale, etc., to Carmichael Cummings. We have seen that the lands for the years 1910-11 were assessed for taxes to Farmer, Powell and Oates. For the same time, and, no doubt, out of precaution on the part of the tax authorities, the lands were assessed to the former mortgagor and defendant in execution, Sellers, and the sale for the 1911 taxes made, at which Carmichael Cummings became the purchasers. At the time of the assessment and sale (for 1910-11 taxes, July 6, 1912) of the lands, they were not subject to taxation as the property of Sellers; that is, if the testimony of Powell is to be believed, and under inferences which may be drawn by the jury from the tax register and a phase of the testimony of the witness Hall.
There was no error in giving, at the request of plaintiff, written charge denominated A, as follows:
"The court charges the jury that, if they are reasonably satisfied from the evidence that Mr. H. A. Powell paid the taxes for the year 1911, assessed against his property in the name of Farmer, Powell and Oates, and that such payment of such taxes was made before June 6th, 1912, then their verdict should be for the plaintiff,"
— and in refusing defendants' charge, which we have numbered 6, as follows:
"The court charges the jury that as matter of law the land involved in this suit was subject to taxes at the time it was assessed for taxes for the years 1910 and 1911 against C. E. Sellers; and that said land was subject to taxes on June 6, 1912, when Carmichael Cummings bought same at tax sale under said assessment against said Sellers."
Defendants' refused charge 10 was covered by the oral and given instructions.
The following question was sought to be propounded to the witness Carmichael: "What did he say to you at that time?" and it was indicated to the court that the witness was expected to answer "that H. A. Powell told him, in 1914, along about the time he got the deed to this land, that he had never paid the taxes on this land for 1911." This was in the nature of an impeachment of Powell's testimony, and no sufficient predicate was laid therefor. No error was committed in sustaining plaintiff's objection thereto as matter of impeachment.
We find no error in the record.
Affirmed.
ANDERSON, C. J., SOMERVILLE and BOULDIN, JJ., concur.