Gilliland v. Armstrong

• Decision Date: 13 April 1916
• Docket Number: 8 Div. 902
• Citation: 196 Ala. 513,71 So. 700
• Parties: GILLILAND v. ARMSTRONG.
• Court: Alabama Supreme Court

71 So. 700

196 Ala. 513

GILLILAND v. ARMSTRONG.

8 Div. 902

Supreme Court of Alabama

April 13, 1916

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Statutory ejectment by William Armstrong against J.A. Gilliland. Judgment for plaintiff, and defendant appeals. Affirmed.

Sample & Kilpatrick, of Cullman, for appellant.

H.V Cashin, of Decatur, for appellee.

SAYRE J.

Statutory action in the nature of ejectment. The property in suit was assessed to Georgia Armstrong for taxation in the year 1910. She was then in possession, and there is no evidence to contradict the presumption of ownership thus raised. In November, 1910, she died leaving plaintiff (appellee), her husband, but no children. Plaintiff proved these facts and offered in evidence a decree of the probate court rendered at the May term, 1911, authorizing and directing a sale of the property by the tax collector, under the caption "Geo C. Hardwick, Tax Collector, v. Armstrong, Georgia colored." This decree was in Code form, and contained a recital that notice of the proceeding had been given as required by law. It seems that plaintiff offered the tax proceeding, as far as he went, for the purpose of showing that defendant claimed under a tax title and in anticipation of a defense under that title. In the further course of plaintiff's examination as a witness it appeared that defendant held possession under a default judgment that had been recovered by Gilliland March 23, 1914, in a previous action brought by him against plaintiff here and his tenants. By introducing this decree evidently plaintiff did not intend to conclude his own title, nor did he thereby divest himself of the right to show that, in respect of the recited notice, the decree was without the jurisdiction of the court, as in fact it was under plaintiff's uncontradicted testimony, unless its recital of notice was as matter of law conclusive against his testimony.

Our opinion is that in the circumstances of the present case it was not evidence of notice according to law, though doubtless it would have been had the decree been rendered in the lifetime of Georgia Armstrong, against whom it purported to be rendered. Driggers v. Cassady, 71 Ala. 529. Section 2272 of the Code provides that notice of a proceeding for the sale of land for delinquent taxes--

"must be served by the tax collector, or his deputy, by handing a copy thereof to the party to whom it is addressed, or his agent, or by leaving a copy thereof at the residence or place of business of such party, or his agent; and, with his endorsement thereon, showing how and when served, or if not served, showing his reasons for not serving the same; it must be by the collector, or his deputy, returned into court on or before the first day of the next term thereof. If the party against whom such assessment was made has since died, and letters testamentary or of administration have been granted upon his estate, such notice must, in like manner, be served on his personal representative, if a resident of the county."

...