Jackson v. Kirksey

• Decision Date: 31 July 1895
• Citation: 18 So. 304,110 Ala. 547
• Parties: JACKSON ET AL. v. KIRKSEY ET AL.
• Court: Alabama Supreme Court

18 So. 304

110 Ala. 547

JACKSON ET AL. v. KIRKSEY ET AL.

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Choctaw county; James T. Jones, Judge.

Ejectment by J. W. Jackson and others against Henry Kirskey and others. Defendants had judgment, and plaintiffs appeal. Affirmed.

This was a statutory action of ejectment, brought by the appellants against the appellees. The claim of the plaintiffs to the land sued for was based upon a tax deed executed to them by the probate judge of Choctaw county, conveying the lands sued for. This tax deed was offered in evidence by the plaintiffs, to show their title, but was objected to by defendants, on the ground that the acknowledgment attached to said deed was insufficient, in that it failed to show that the probate judge acknowledged, before the officer taking the acknowledgment, that, being informed of the contents of the conveyance, he executed the same voluntarily. This objection on the part of the defendants to the introduction in evidence of the tax deed was sustained by the court, and said deed was not allowed to be introduced in evidence. To this ruling of the court the plaintiffs duly excepted, and took a nonsuit. The other facts of the case are sufficiently stated in the opinion. The appeal is prosecuted by the plaintiffs, who assign as error the ruling of the court in refusing to allow the tax deed to be introduced in evidence.

W. F Glover, for appellants.

Taylor & Elmore, for appellees.

HEAD J.

The action is statutory ejectment to recover possession of land which the plaintiffs claim as purchasers at a tax sale made on or about May 10, 1891. The sole question presented for decision is whether or not the certificate of acknowledgment appended to the conveyance of the probate judge is in proper form. The certificate was as follows: "The State of Alabama, Choctaw County. I hereby certify that before me, B F. Gilder, clerk of the circuit court in and for said county personally appeared the above-named C. C. McCall, judge of probate of said county, personally known to me to be the judge of said county, at the date of the execution of the above conveyance , and to be the identical person whose name is affixed, and who executed the above conveyance as probate judge of said county, and who acknowledges the execution of the same to be his voluntary act and deed, as probate judge of said county, for the purpose expressed. Given under my hand and seal, this 15th day of May, A. D. 1893. B. F Gilder, Clerk."

When the conveyance, showing the foregoing certificate, was offered in evidence, the defendants objected to it, on the ground that the acknowledgment was insufficient, in that "it failed to show that the probate judge acknowledged before the officer that, being informed of the contents of the conveyance, he executed the same voluntarily." The circuit court sustained the objection, whereupon the plaintiffs took a nonsuit, with a bill of exceptions. Section 592 of the Code of 1886, relating to tax deeds, provides that the deed of the probate judge, "when properly acknowledged and recorded," shall convey the title of the former owner, and of the person whose duty it was to pay the taxes, and the lien and claim of the state and county but not the right, title, or interest of any reversioner or remainder-man. Section 593 requires that the deed shall be "acknowledged before some officer authorized to take acknowledgment of deeds." According to these sections, it is obvious that no title passes until the deed of the probate judge is both properly acknowledged and recorded. Bolling v. Smith, 79 Ala. 535. It is also plain that the certificate was open to the objection made to it, if it be held that a proper acknowledgment must be in the form prescribed by section 1802. The certificate did not contain the statutory phrase showing that the grantor acknowledged that he was "informed of the contents of the conveyance," nor any words of equivalent import. It was, therefore, fatally defective as an attempt to comply with that section of the Code. Railway Co. v. Davis, 91 Ala. 615, 8 So. 349; Boykin v. Smith, 65 Ala. 294; Kellar v. Moore, 51 Ala. 340. We call attention to the fact that the decision in Abney v. De Loach, 84 Ala. 393, 4...