Riddle v. Messer

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Riddle v. Messer, 84 Ala. 236, 4 So. 185 (Ala. 1888)
• Decision Date: 17 May 1888
• Parties: RIDDLE v. MESSER.

4 So. 185

84 Ala. 236

RIDDLE v. MESSER.

Supreme Court of Alabama

May 17, 1888

Appeal from circuit court, Clay county; LEROY F. BOX, Judge.

Action of ejectment by Archibald B. Riddle against James F. Messer. Sections of the Code referred to in the opinion are as follows: The affidavit provided by section 567 of the Code of 1886 reads: "I do solemnly swear that I have, in each case entered in this book, made diligent search for personal property of the parties against whom the taxes are respectively assessed, and, after diligent search, I have been unable to find sufficient personal property out of which to collect the taxes, or any part thereof." Section 593 provides that the tax deed, signed by the judge of probate in his official capacity, and acknowledged, shall, in all the courts of the state, be prima facie evidence of the facts therein recited, in any controversy, proceeding, or suit involving or concerning the rights of the purchaser to the real estate conveyed thereby. Section 594 requires the attorney general to furnish the auditor with suitable forms for deeds to be printed, and distributed among the probate judges. Judgment was rendered for the plaintiff, and the defendant appeals.

Brickell, Semple & Gunter, for appellant.

W M. Lackey, contra.

SOMERVILLE J.

If the proceedings under which the plaintiff's tax title was acquired were regular, and in conformity to the statute regulating the sale of lands for payment of delinquent taxes in force when the sale was made, he was plainly entitled to recover in the present action, which is one of ejectment. The chief contention upon the trial related to the admission in evidence of the docket or book of the tax collector, which he is required by law to deliver into the office of the probate judge, properly verified by his affidavit in the mode required by section 12 of the act of February 12, 1879, the law in force at the time of the sale. Acts 1878-79, pp. 1-8. The plaintiff introduced in evidence, against the defendant's objection, a substantially bound book, which the probate judge testified was the docket or book that had been prepared by the tax collector, and delivered by him into the probate office by March 1, 1881, as required by law, and that it was the only docket or book kept by either himself or the collector.

1. It was objected that the book, from the entries in it, did not appear to be such a docket or book as was required to be kept by the collector under the provisions of section 1 of the act of 1879, or such a decree docket, or such a record book, as was required to be kept by the probate judge under section 7 of said act. Acts 1878-79, pp. 1, 6. It was also insisted that the affidavit required to be made, and appended at the end of the book, by section 12 of the act, had not been made in the manner conformable to the statute, and that for this reason it should be excluded as fatally defective. Fleming v. McGee, 81 Ala. 409, 1 South. Rep. 106. The statute seems to contemplate that two books of record shall be prepared and kept,-one by the tax collector, and the other by the probate judge. The following are the essential requisites of the tax collector's docket, which he is required to prepare and deliver into the office of the probate judge by the 1st of March of each year or which the judge shall cause to be prepared at the collector's expense if he fails in this duty: (1) It must be a substantially bound book, prepared in the usual form of a docket. (2) It must contain a description of each parcel of land in the county, as it is assessed, upon which the taxes are unpaid. (3) The name of the owner, if known, or that it is assessed as the property of "unknown owner." (4) The amount of unpaid taxes and charges due by the known owner, or due on the particular land, if assessed to an unknown owner. (5) These descriptions are required to be entered by "beats of the residence" of the owners, and "in alphabetical order" as to names; but, if the owner is unknown or a nonresident, in the beat where the land is situated. Acts 1878-79, pp. 3, 4; Code 1886, § 567. There is a further provision that this docket, besides being in a regular and legible handwriting, without erasures and interlineations, shall be prepared "with sufficient space to make the entries hereafter required, [in subsequent sections of the act.]" Acts 1878-79, p. 4,§ 2. These entries refer obviously to the notice required by section 3 and the decree of sale, the full form of which is given in section 4 and perhaps some other parts of the history of the case.

2. The book kept by the probate judge is required to contain (1) a description of each parcel of real estate sold or offered for sale, as it is described in his "decree docket;" (2) the amount of each kind of tax, as contained in and to be copied from the collector's list; (3) the penalties and costs for each tract or lot; (4) what part of each lot was sold; (5) the name of the purchaser; (6) the price paid; (7) the date of the sale, or, if no sale has been effected, a statement of that fact. Acts 1878-79, p. 6, § 7; Code 1886, § 577

3. The book or docket introduced in evidence, in our opinion, contains all that each of the foregoing books are required to contain, as above enumerated. In other words, the probate judge and the collector have each used the same book. Is this a compliance with the law? We can see no reason why we should hold that it is not. While the more convenient and orderly course would, no doubt, be to have two separate books, one of which should be kept in the constant custody of the probate judge, yet the essential thing is to have a record, in lasting form, of all the proceedings in the case of each tax sale made under authority of the probate court by its process of judicial condemnation. Driggers v. Cassaday, 71 Ala. 529. This is accomplished by one book or record, as well as by two or more, provided it contains all the essential requirements of the statute, which should be so construed as to uphold, and not to destroy, if this can be done without violating any established canon of statutory construction. Martin v. King, 72 Ala. 354. We accordingly so hold.

4. It was further objected to the introduction of the collector's docket that the entries in it were not made in alphabetical order, nor the description of the defendant's property entered by the number of the beat of his residence, as required by the statute. This requirement of the tax law has reference only to the collector's docket, which is intended also to be used by the probate judge as a "decree docket." The provision is that, where the owner resides in a given beat or precinct, the description of his land, with his name and the amount of unpaid taxes and charges, must be entered in the place on the book accorded to such beat, as it may be designated by its number, and the names of owners must be written in alphabetical order. How far this requirement is mandatory and jurisdictional we need not inquire. Clark v. Crane, 5 Mich. 151, 71 Amer. Dec. 776; Black w. Tax Titles, *143, *144; Driggers v. Cassady, 71 Ala. 529. It is sufficient for us to say that the entry of the defendant Riddle's land is in substantial compliance with this requirement. It is apparent from the entry that he is designated as residing in beat No. 2, and but three names, including his, are entered, these being in alphabetical order.

5. The abbreviations used in describing the lands were allowable; the peculiar mode of designating fractions being known to us not to be of infrequent use. Code 1876, § 370, subd. 6; Code 1886, § 583.

6. The objection to the affidavit or oath of the tax...