Lodge v. Wilkerson

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Lodge v. Wilkerson, 174 Ala. 133, 56 So. 994 (Ala. 1911)
• Decision Date: 21 December 1911
• Parties: LODGE v. WILKERSON ET AL.

56 So. 994

174 Ala. 133

LODGE v. WILKERSON ET AL.

Supreme Court of Alabama

December 21, 1911

Appeal from Circuit Court, Macon County; S. L. Brewer, Judge.

Ejectment by Thornton H. Lodge against R. B. Wilkerson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

O. S Lewis, for appellant.

R. H Powell and H. P. Merritt, for appellees.

SOMERVILLE J.

The plaintiff sues in ejectment for property described in the first count of his complaint as, "Hotel and lot at Notasulga, Alabama, now occupied by said R. B Wilkerson"; and in the second count as, "One hotel and the grounds on which it rests in Notasulga, Alabama, now occupied by the said R. B. Wilkerson." In support of his claim he offered to introduce in evidence a tax deed showing a sale against the defendant for delinquent taxes, and conveying to plaintiff "One hotel at Notasulga, Alabama." The assessment, upon which the delinquency proceedings, sale, and deed were founded, described the property simply as "Hotel Notasulga." The plaintiff, recognizing the ambiguity and uncertainty of this description, sought to make it certain and sufficient by parol proof that the defendant Mrs. Shaw owned only one hotel and lot in the town of Notasulga, which was occupied, as alleged in the complaint, by one R. B. Wilkerson. The defendant objected to the admission of the deed, and her objection was sustained by the trial court.

It may be, as ably argued by counsel for appellee, that the deed, as well as the assessment upon which it is founded, are void for uncertainty in the description of the property in question, and that parol evidence cannot cure their insufficiency; the requirements in this regard being somewhat stricter in the case of tax sales than in the case of voluntary sales by the owner. Driggers v. Cassady, 71 Ala. 529; Dane v. Glennon, 72 Ala. 160; Jones v. Pelham, 84 Ala. 208, 4 So. 22; Buckner v. Sugg, 79 Ark. 442, 96 S.W. 184; People v. Mahoney, 55 Cal. 286; Grand Forks County v. Frederick, 16 N.D. 118, 112 N.W. 839, 125 Am. St. Rep. 621. This question, however, it is not necessary to determine.

The probate court is empowered by statute to order the sale of lands for the payment of delinquent taxes assessed thereon "when the tax collector shall report to the court that he was unable to collect the taxes assessed against such land or the owner thereof without a sale of such land." Code 1886, § 566; Code 1896, § 4046; Code 1907, § 2268.

Its authority is purely statutory, and cannot arise at all except upon the collector's report that a sale of the land is necessary for the collection of the taxes. By the plain language of the statute this report of the collector is made the essential prerequisite of jurisdiction, and an order of sale without it is merely a nullity. This, like all other jurisdictional facts in these proceedings, must be affirmatively shown by...