Bracely v. Noble

• Decision Date: 15 November 1917
• Docket Number: 3 Div. 291
• Citation: 201 Ala. 74,77 So. 368
• Parties: BRACELY v. NOBLE.
• Court: Alabama Supreme Court

77 So. 368

201 Ala. 74

BRACELY v. NOBLE.

3 Div. 291

Supreme Court of Alabama

November 15, 1917

Rehearing Denied Dec. 24, 1917

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Proceedings by John B. Noble against Sallie Bracely to redeem land sold for taxes. Decree for plaintiff, and defendant appeals. Reversed and remanded.

Weil Stakely & Vardaman, of Montgomery, for appellant.

Geo. D Noble and Beckwith & Davison, all of Montgomery, for appellee.

THOMAS J.

Appellee John B. Noble, is seeking to redeem from appellant, Sallie Bracely, certain real estate situate in the city of Montgomery, which was sold for municipal taxes under a decree of the city court of Montgomery. The appeal is taken from the decree overruling demurrer to the bill.

As last amended, the bill averred that on October 9, 1909, George D Noble was the owner of the property in question; that on the 26th day of February, 1911, said Noble died, and that on March 15, 1911, the last will and testament of said decedent was duly admitted to probate; that under said will the complainant took an undivided interest in the property sought to be redeemed; that at the time of the death of said testator complainant was an infant, aged 17 years, and that he reached his majority on the 10th day of September, 1915; that the sale of said property under said decree was had on the 9th day of October, 1909. The original bill in this cause was filed on the 9th day of September, 1916.

Appellant's counsel thus correctly states the question for decision:

"It is obvious from the foregoing statement of facts that the attempt to redeem was made more than two years after the date of the sale for taxes. It is the position of appellee that he was not barred by the two-year period of limitations, because, being a minor when he came into his rights with reference to this property, he had an additional year after he attained his majority within which to make the redemption; *** that section 1328 and section 2313 [of the Code] should be so construed together as to give him this additional year. It is patent that, if a minor is entitled to one year within which to redeem [from such municipal tax sales] from the time he reaches his majority, then John B. Noble filed his bill to redeem within the time allowed by law."

It is provided by statute that:

"Real estate sold for taxes and bid off by the state may be redeemed at any time before the title passes out of the state, or if purchased by any other purchaser, may be redeemed at any time within two years from the date of the sale, by the owner, his heirs, or personal representative, or by any mortgagee or purchaser of such lands, or any part thereof, or by any person having an interest therein, or in any part thereof, legal or equitable, in severalty or as tenants in common, including a judgment creditor, or other creditor having a lien thereon, or on any part thereof; and an infant or insane person entitled to redeem at any time before the expiration of two years from the sale, may redeem at any time within one year after the removal of his disability; and such redemption may be of any part of the lands so sold, which includes the whole of the interest of the redemptioner." Code, § 2313.

And that:

"Such persons as are authorized to redeem property sold at state tax sales, may redeem from the purchaser at any sale for municipal taxes or assessments at any time within two years after the sale, upon paying to the purchaser or to the city treasurer the amount for which the property was sold and fifteen per centum per annum, and such sums as the purchaser may have paid for taxes and assessments, and the interest thereon, and all sums for which such parties may have become liable, on account of taxes or assessments, to pay by reason of owning the property, together with the sum of two dollars to pay the cost of reconveyance of such property." Code, § 1328.

The codification of section 1 of an act approved February 28, 1889 (Gen.Acts 1888-89, p. 777), and of section 34 of an act approved February 28, 1887 (Gen.Acts, 1886-87, p. 23), was as section 2313 of the Code; and section 115 of the act approved August 13, 1907 (Gen.Acts 1907, pp. 790, 845), was inserted in the Code as section 1328 thereof. After these two sections were so incorporated into the Code and became effective, redemption of property sold for municipal taxes, and of such property sold for state taxes, was subject to the respective statutes having application. The former, by reference, adopted those provisions of the latter statute that were applicable, and made them apply to the redemption of real property sold for municipal taxes.

It has been declared by other courts that the provisions of one statute may be made applicable to another by reference (Binghampton Bridge Co., 3 Wall. 51, 18 L.Ed. 137; Turnley v. Wilton, 36 Ill. 385; Garland v. Hickey, 75 Wis. 178, 43 N.W. 832; Warrington Water Works Co. v. Longshow, 9 Q.B.D. 145; 36 Cyc. 969), in the absence of constitutional restriction. The provision of our Constitution that, "No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only," etc. (Const. § 45), applies to a law which is strictly amendatory or revisory. Ex parte Pollard, 40 Ala. 77, 100; Ferguson v. Commissioners' Court of Jackson Co., 187 Ala. 645, 653, 65 So. 1028.

There is a class of statutes known as "reference statutes" that impinge upon no constitutional limitation. It comprises--

"statutes in original form, and in themselves intelligible and complete, 'statutes which refer to, and by reference adopt, wholly or partially, pre-existing statutes, the statute referred to is treated and considered as if it were incorporated into and formed a part of that which makes the reference. The two statutes coexist as separate and distinct legislative enactments, each having its appointed sphere of action; and the alteration, change, or repeal of the one does not operate upon or affect the other.' " Savage v. Wallace, 165 Ala. 572, 51 So. 605; Hooper et al. v. Bankhead, 171 Ala. 626, 637, 54 So. 549; Beason v. Shaw, 148 Ala. 544, 546, 42 So. 611, 18 L.R.A. (N.S.) 566; Ex parte Greene, 29 Ala. 52; Phoenix Assurance Co. v. Fire Dept., 117 Ala. 631, 23 So. 843, 42 L.R.A. 468; State v. Lamar, 5 Ala.App. 259, 59 So. 737; Endlich on Interp. Stat. §§ 50, 150; 2 Lewis' Sutherland, Stat. Const. § 404 (257) et seq.

When so adopted, only such portion is thus put in force as relates to the particular subject of the adopting act or statute, and as is applicable and appropriate thereto. Matthews, Finley & Co. v. Sands, 29 Ala. 136; Hooper v. Bankhead, supra, 171 Ala. 638, 54 So. 549; Sloss-Sheffield Co. v. Smith, 175 Ala. 260, 265, 57 So. 29.

If there be any doubt as to the application of the rule of reference statutes to the statutes for construction, such doubt is dispelled by consideration of the fact that both statutes are embraced in the Code, where they were adopted as parts of one and the same law. The two statutes relate to the redemption of lands sold for taxes, respectively, by the municipality and by the state, and are incorporated in the Code of 1907 as sections 1328 and 2313. As so enacted and construed, they provide a harmonious system for the redemption of such lands from tax sales. Sutherland, Stat. Const. § 2881; Ryan v. Sawyer, 195 Ala. 69, 71, 72, 70 So. 652.

The reference (in section 1328 of the Code), "Such persons as are authorized to redeem property sold at state tax...