McKinnon v. Mixon

• Decision Date: 24 January 1901
• Citation: 128 Ala. 612,29 So. 690
• Parties: MCKINNON v. MIXON.
• Court: Alabama Supreme Court

29 So. 690

128 Ala. 612

MCKINNON v. MIXON.

Supreme Court of Alabama

January 24, 1901

Appeal from circuit court, Geneva county; John P. Hubbard, Judge.

Action by A. M. McKinnon against Travis Mixon. Judgment for defendant, and plaintiff appeals. Affirmed.

Upon the introduction of all the evidence the plaintiff requested the court to give the jury the general affirmative charge in his behalf. The court refused to give this charge, and the plaintiff duly excepted. The plaintiff also excepted to the court's giving, at the request of the defendant, the general affirmative charge in his favor. From a judgment in favor of the defendant the plaintiff appeals, and assigns as error the refusal of the court to give the charges requested by him, and the giving of the charge asked by the defendant.

Mulkey & Mulkey, for appellant.

Espy &amp Farmer, for appellee.

SHARPE J.

On the trial there was no evidence tending to show that the plaintiff, or any one with whom he was in privity, ever had possession of the lands sued for, and no attempt was made to trace title to him from its original source. Only by proof of the contents of a destroyed tax deed executed to him by the probate judge in 1893 did he offer to establish any muniment of title upon which to base his claim, and that deed was not available as such muniment because, if for no other reason there was no evidence, either in the deed's recitals or aliunde, that any notice was given of the tax sale, as was required by the statute. Code 1886, § 576. Without substantial compliance with the law authorizing sales of land for taxes in respect to giving such notice, as well as in other essentials, no validity attaches to a deed made in pursuance of such sales; and the burden of proving such compliance is on the party claiming under the deed. Johnson v. Harper, 107 Ala. 706, 18 So. 198; National Bank v. Baker Hill Iron Co., 108 Ala. 635 19 So. 47; Reddick v. Long (Ala.) 27 So. 402. Apparently the plaintiff's chief reliance is upon a supposed estoppel operating to preclude the denial of his title. The estoppel is claimed to exist under the uncontradicted testimony of the plaintiff, which was to effect that in 1897, while one Leslie was in possession of the lands, he sold them to Leslie; that he took Leslie's note for the purchase money, and agreed to make him a deed upon payment of the note; that a partial payment was made and credited on the note; that, at some time which is not stated he (the plaintiff) prepared and signed a deed to be delivered to Leslie on payment of the purchase money, but that the same was never paid in full, and the deed was never delivered; and, further, that the defendant took possession of the land under a deed from Leslie. The note was in evidence, and was in the ordinary form of a note waiving exemptions to personalty. The defendant questions the sufficiency of this evidence to show a sale by the plaintiff, in view of the statute of frauds, which declares void every contract for the sale of lands etc., except for a term not longer than one year, of which there is no note or memorandum in writing, expressing the consideration, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing, "unless the purchase money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller." This question is properly raised by the defendant under the general issue, for in ejectment the plea "Not guilty" lets in every matter provable in bar of the suit. Richardson v. Stephens, 114...