Cary v. Holmes

• Decision Date: 09 April 1896
• Parties: CARY v. HOLMES.
• Court: Alabama Supreme Court

19 So. 723

109 Ala. 217

CARY v. HOLMES.

Supreme Court of Alabama

April 9, 1896

Appeal from circuit court, Mobile county; William S. Anderson Judge.

This was a statutory action of ejectment, brought by Mary Cary against Henry Holmes, to recover certain property specifically described in the complaint. Issue was joined on the plea of the general issue. Upon the trial of the case, as is shown by the bill of exceptions, John Cary testified that he was a son of Mary Cary, the plaintiff, and lived in Mobile; that he knew the property sued for, described its location, and that it was unimproved; that it was the property of plaintiff, and that she paid about $37 for it. A fair rental value was $1.50, or $2 per month, and defendant had possession of it. Plaintiff offered in evidence a deed dated June 29, 1893, duly executed and acknowledged by John Purifoy, auditor, befort Francis M. Purifoy, a notary public wherein was recited the decree for sale as of April 26, 1886 by the probate court of Mobile county, that state and county taxes were due from "owner unknown"; that thereupon, on June 21 and 22, 1886, in pursuance of said decree, said lands were regularly offered for sale by the tax collector; that they had not been redeemed, etc., and under application made by Mary Cary, and who had paid $37.50, the state's title, without warranty or covenant, was conveyed to Mary Cary, etc. Deed was filed in probate court, Mobile county, June 30, 1893, and recorded. Plaintiff also offered in evidence a certified transcript from office of Price Williams, Jr., judge of probate, Mobile county, Ala., showing the assessment to unknown owner, the sale to the state, and all the preliminary requirements of law pertaining to tax sales for the year 1885. It was admitted by plaintiff that the statutory affidavit of the tax collector of search for personalty was dated about three days after the sale of the property sued for. The court ruled out the deed, on the sole ground that said statutory affidavit of search for personalty was dated after the tax sale; whereupon no further testimony was offered by plaintiff. The plaintiff thereupon took a nonsuit, with bill of exceptions, and judgment was rendered accordingly. The plaintiff brings the present appeal, and assigns as error the ruling of the trial court in excluding from evidence the tax deed offered by the plaintiff. Reversed.

p>Page Guy C. Sibley, for appellant.

R. T Ervin, for appellee.

HEAD J.

The only question presented for decision in this case is whether the failure of the tax collector to append the statutory oath to the book or docket required to be delivered to the probate judge, by section 84 of the act of February 17, 1885 (Code 1886, § 567), invalidates a tax sale, where the real estate in question was assessed to "owner unknown." If the assessment had been made against a known person, there can be no doubt the affidavit would be jurisdictional, as we have several times decided. Wartensleben v. Haithcock, 80 Ala. 565, 1 So. 38; Fleming v. McGee, 81 Ala. 409, 1 So. 106; Riddle v. Messer, 84 Ala. 236, 4 So. 185; Feagin v. Jones, 94 Ala. 597, 10 So. 537. Section 61 of the act referred to, requiring a personal demand upon delinquent taxpayers wherever they may be found; section 62 authorizing levies upon their personal property, and sales after 10 days' notice by posting in the precinct in which...