Pollak v. Milam
| Decision Date | 17 December 1914 |
| Docket Number | 962 |
| Citation | 67 So. 381,190 Ala. 569 |
| Parties | POLLAK v. MILAM. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 14, 1915
Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.
Ejectment by Ignatius Pollak against W.K. Milam. Judgment for defendant, and plaintiff appeals. Affirmed.
Brown & Griffith, of Cullman, for appellant.
George H. Parker, of Cullman, for appellee.
DE GRAFFENRIED, J.
The decision of this case can be rested upon certain well-defined principles which have already been declared, in many decisions, by this court.
"In the sale of lands for taxes, great strictness is required and every provision of the statute must be punctiliously pursued." Dane v. Glennon, 72 Ala. 163.
"The burden is on the party claiming under a tax sale to show that all the substantial requirements of the law have been complied with." Oliver v. Robinson, 58 Ala. 46; Smith v. Cox, 115 Ala. 503, 22 So. 78; Roman Trustee, v. Lentz, 177 Ala. 64, 58 So. 438.
"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.
Lodge v Wilkerson, 174 Ala. 133, 56 So. 994.
In the instant case the tax assessor reported that the taxes on the land "are delinquent, due, and unpaid," and not that " 'he was unable to collect the taxes assessed against such land or the owner thereof without a sale of such land,' " as he was required, under section 4046 of the Code of 1896 (now section 2268 of the Code of 1907), to do; and, as this essential prerequisite of jurisdiction to an order of sale was lacking, the decree of the probate court ordering a sale of the lands for taxes was void. Lodge v Wilkerson, 174 Ala. 133, 56 So. 994.
2. The cases of Cary v. Holmes, 109 Ala. 218, 19 So. 723 and Gamble v. Andrews, 65 So. 526, simply declare that when lands are assessed to owner unknown a sale of such land will not be avoided because of the failure of the tax collector to make the affidavit required by section 567 of the Code of 1886. That section was materially changed when it was brought forward into our subsequent Codes. See Code of 1896, § 4047, and Code of 1907, § 2269. The reasoning of the court in said cases of Cary v. Holmes, supra, and Gamble v. Andrews, supra, has no applicability to the facts of this case. While the lands here were assessed to owner unknown, that fact does not affect the...
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Gunter v. Townsend
...requirements essential to the validity of a tax sale; for example, due notice. Code, §§ 2269, 2271, 2272, and 2278; Pollak v. Milam, 190 Ala. 569, 67 So. 381. Notice a life tenant or to his trustee will not bind a reversioner or remainderman without notice of an intended tax sale. The dismi......
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Morris v. Card
... ... Baker Hill Iron Co., 108 ... Ala. 635, 19 So. 47), and the burden of proof as to this is ... on him who claims under the tax title. Pollak v ... Milam, 190 Ala. 569, 67 So. 381; Drennen v ... White, 191 Ala. 274, 68 So. 41; Galloway Coal Co. v ... Warrior Black Creek Coal Co., 204 ... ...
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Ex parte Griffith
... ... 285, 286. Since the decision in ... Elliot v. Doe ex dem. Eddins, 24 Ala. 508, to the later cases ... of Lodge v. Wilkerson, supra, Pollak v. Milam, 190 ... Ala. 569, 67 So. 381, and Gunter v. Townsend, 202 ... Ala. 160, 79 So. 644, it has been observed that the omission ... to ... ...
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Helm v. Griffith
...all jurisdictional facts in the proceedings must be affirmatively shown by the record. Lodge v. Wilkerson, 174 Ala. 133, 56 So. 984; Pollak v. Milam, supra. certified copy of the delinquent tax sale, comprising the affidavit as to "owner unknown," the "order of publication owner unknown," t......