Johnson v. Harper

• Decision Date: 31 July 1895
• Citation: 107 Ala. 706,18 So. 198
• Parties: JOHNSON v. HARPER.
• Court: Alabama Supreme Court

18 So. 198

107 Ala. 706

JOHNSON v. HARPER.

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Coffee county; J. M. Carmichael, Judge.

Ejectment by S. B. Harper against N. A. Johnson. There was judgment for plaintiff, from which defendant appeals. Reversed.

The plaintiff based his title to the lands sued for, and his right to recovery in the suit, upon a tax deed made to him as the purchaser of the lands described in the complaint at a sale for state and county taxes. The defendant objected to the introduction of the tax deed conveying the said lands to the plaintiff, on the ground that there was no evidence that the lands described in the deed were advertised for sale by the tax collector before they were sold. This objection was overruled, and the defendant duly excepted. The defendant offered no evidence, and upon the introduction of all the evidence the court, at the request of the plaintiff, gave to the jury the general affirmative charge in favor of the plaintiff, and refused a like charge requested by the defendant. There was judgment for the plaintiff. The defendant appeals, and assigns as error the rulings of the court upon the evidence, and the giving of the general affirmative charge for the plaintiff, and the refusal to give the general affirmative charge for the defendant.

P. N Hickman, for appellant.

HEAD J.

This is an action of ejectment brought by the appellee against the appellant, basing his right to recover on a tax deed made to him as the purchaser of the land at a sale for state and county taxes. The defendant in the court below objected to the introduction of the deed because there was no evidence that the lands described in the deed were advertised for sale by the tax collector before he sold the same. There is no recital in the deed to the effect that such advertisement was made, nor was there any independent proof thereof. While it may not have been erroneous to allow the deed to be read at the time it was offered, since the court could not know that proof would not be adduced to show that the sale had been advertised as required by law, yet without such proof the plaintiff failed to establish a good title, and the court erred in giving the general affirmative charge in his behalf. Under our statutory system, when real estate is sold for taxes, a certificate of purchase is executed to the purchaser by the tax collector who makes the sale. Code, § 581. This certificate may be surrendered after the time for redemption has expired, and a deed obtained from the probate judge. Section 593 of the Code provides how such deed shall be executed, and declares "that it shall be, in all the courts of the state, prima facie evidence of the facts recited therein, in any controversy, proceeding, or suit involving or concerning the rights of the purchaser, his heirs or assigns to the real estate thereby conveyed." The statute does not prescribe the form of the deed, nor provide what it shall contain. We do not doubt that, if the deed in question had recited the fact of advertisement of sale, it would have been prima facie proof thereof. We do not doubt, furthermore, that it was absolutely necessary to the validity of the sale that the land should have been advertised as provided by section 576 of the Code, and that without such advertisement the sale was void. We hold moreover, that it devolved on the purchaser to show that such advertisement had been made, as well as to establish every other fact essential to the...