Bailey v. Campbell

• Decision Date: 12 July 1887
• Citation: 82 Ala. 342,2 So. 646
• Court: Alabama Supreme Court
• Parties: BAILEY, ADM'R, v. CAMPBELL.

2 So. 646

82 Ala. 342

BAILEY, ADM'R, v. CAMPBELL.

Supreme Court of Alabama

July 12, 1887

Appeal from circuit court, Madison county.

Statutory real action in the nature of ejectment.

This action was brought June 24, 1882, by James Bailey against Richard Campbell. The plaintiff having died pending the termination of the suit, it was revived in the name of Edward A. Bailey, his administrator. The complaint was in the statutory form, and the defenses were: (1) General issue; (2) statute of limitation of five years under the tax sale made by the tax collector of Madison county; (3) statute of limitations of five years under the revenue laws of Alabama relating to taxation; (4) adverse possession under the deed made by the probate judge of Madison county to defendant; and (5) suggestion of valuable improvements. The evidence, as set forth in the record, tends to show that James Bailey sold and conveyed the lands in controversy about January 1, 1874, to James Roddy, who placed Richard Campbell, the defendant, in possession of the land as his tenant. Campbell continued in possession of such land as his tenant in 1875 and 1876, under contracts of rent made with Roddy. The land was sold in 1874 for the taxes of 1873, at which sale A. A. Sou became the purchaser, and received the tax certificate therefor. In 1876, Sou assigned this certificate to defendant for value. The contract between Roddy and plaintiff's intestate was canceled in the latter part of the year 1876, but there seems to have been no conveyance back. It is simply shown that Bailey surrendered Roddy's notes to him, and the latter returned the deed from the former. Defendant had remained on said land since 1874. In 1876 he received a deed for said land according to the assignment of the tax certificate which was duly recorded, and he had held said land as his own since. The plaintiff requested the court, in writing, to charge the jury as follows: "(5) There is no legal evidence in this case that the land sued for has been sold for the non-payment of taxes, and therefore the statute of limitations of five years does not apply." The court refused to give this charge, and defendant duly excepted. Verdict and judgment having been rendered in favor of defendant, plaintiff appeals.

D D. Shelby and R. W. Walker, for appellant.

John D. Brandon, contra.

SOMERVILLE J.

The record shows that the tax deed under which the defendant claims to have been in adverse possession was executed delivered, and recorded in March, 1877, or more than five years before the commencement of this suit. It may, therefore, be conceded that a prima facie case for recovery has been made out in favor of the defendant, admitting, as the evidence tends to prove, that he has continued in open and adverse possession of the land during the entire period. Hughes v. Anderson, 79 Ala. 209, and cases there cited.

But it is contended that when the defendant acquired the certificate of purchase by assignment from the purchaser at the tax sale, upon which his tax deed was based, he occupied a relation towards the owner of the land which disqualified him from acquiring such an interest. ^[1] This was in the year 1874.

The tax sale had taken place April 13, 1874; and the tax deed was delivered in March, 1877, after Roddy had made an arrangement with Bailey, from whom he had originally bought the land, by which he sought to cancel the trade by delivering the deed back to his vendor, and taking up his notes for the purchase money, without a reconveyance of the title. The legal effect of this attempted cancellation, and of defendant's continuing to hold the premises, we shall consider further on in this opinion.

The contention of the plaintiff, as we have said, is that the relation of the defendant towards the then owner of the land Roddy, as tenant and landlord, was such as to disqualify the defendant from taking an assignment of the tax certificate, and that such assignment was, therefore, in the eye of the law, a payment, and not a purchase. There are several relations of this kind operating to produce such effect, among which are included principal and agent, trustee and cestui que trust, tenants for life, tenants in common, mortgagors and mortgagees in possession, and landlord and tenant, and some others. The reason of the rule has sometimes been said to be that the relation of the parties imposes on them the duty of paying taxes assessed against the property in which each has an interest. In whosesoever name the assessment may be, the tax is assessed and levied on the land itself, including the interest of all claimants, and the purchaser at a valid tax sale acquires the fee. Jones v. Randle, 68 Ala. 258. "A purchase by one whose duty it was to pay the taxes operates as payment only. He can derive no benefit as against a third party by the neglect of the duty he owed such party." Blake v. Howe, 15 Amer. Dec. 684, note, and cases cited...