Doe ex dem. Standifer v. Styles

• Decision Date: 22 January 1914
• Citation: 64 So. 345,185 Ala. 550
• Parties: DOE ex dem. STANDIFER v. STYLES.
• Court: Alabama Supreme Court

64 So. 345

185 Ala. 550

DOE ex dem. STANDIFER v. STYLES.

Supreme Court of Alabama

January 22, 1914

Appeal from City Court of Gadsden; W.T. Murphree, Special Judge.

Ejectment by Doe, on the demise of Standifer, against J.T. Styles. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

E.O McCord and John Inzer, both of Gadsden, for appellant.

Culli &amp Martin, of Gadsden, for appellee.

McCLELLAN J.

Common-law ejectment. The defenses asserted were these: Tax title resulting from a tax sale made in 1892 for taxes for the year 1891; three years' adverse possession under the tax statute limitation to that end (Code 1886, § 606; Code 1907, § 2311); adverse possession of ten years under the color of the title afforded by the tax deed.

Before the title of the owner of real estate can be divested by proceedings to enforce the payment of taxes, substantial compliance with the statutory requirements therefor must be had; the burden to show such compliance being upon him asserting rights under a tax proceeding. Hooper v. Bankhead, 171 Ala. 626, 635, 54 So. 549; Reddick v. Long, 124 Ala. 260, 27 So. 402; Johnson v. Harper, 107 Ala. 706, 18 So. 198.

It was (in 1891-92) and is now required by statute that decrees for the sale of lands to enforce the payment of taxes shall, when entered, "be signed by the judge of probate." Code 1907, § 2278. The decree upon which the pertinent defenses mentioned in the first of the opinion are rested was not signed by the judge of probate as the positive law required. This omission operated to render void the attempted tax sale and conveyance of the land in question, and also, of course, prevented the inception of any right under the statute (Code 1886, § 606) giving effect to three-year limitation after adverse possession by a purchaser at a tax sale.

Besides there is no evidence tending, in any degree, to show such actual possession of this land by Hudgins, the purchaser at the tax sale (even if it were valid), as put into operation the three-year statute of limitations noted before. Hooper v. Bankhead, 171 Ala. 626, 633, 634, 54 So. 549. Nor is there evidence tending, in any degree, to show adverse possession for ten years, before suit was brought, under color of title. The evidence here, differing in that respect from McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 So. 822, purports in every instance, where possession is affirmed as in support of...