Roman v. Lentz

• Citation: 177 Ala. 64,58 So. 438
• Parties: ROMAN v. LENTZ ET AL.
• Decision Date: 04 April 1912
• Court: Supreme Court of Alabama

58 So. 438

177 Ala. 64

ROMAN v. LENTZ ET AL.

Supreme Court of Alabama

April 4, 1912

Rehearing Denied May 1, 1912.

Appeal from Circuit Court, Lawrence County; D. W. Speake, Judge.

Action by S. Roman, as trustee, against H. C. Lentz and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

J. B Brown, of Cullman, for appellant.

W. T Lowe, Callahan & Harris, and Tidwell & Sample, all of Decatur, for appellees.

DOWDELL C.J.

This is a statutory action in the nature of an action of ejectment brought by the appellant Roman against the appellees to recover possession of certain lands in Lawrence county. From a verdict and judgment in favor of the defendants, Lentz et al., this appeal is prosecuted. On the trial the plaintiff proved a complete paper chain of title, tracing from the government into himself.

The defendants sought to justify their holding on two theories (1) That the plaintiff failed to assess the lands for taxes for the year 1898, and had failed to pay the taxes thereon for said year; that in the year 1901 an assessment was made against said lands for escaped taxes by the tax assessor for the year 1898, and that by a proceeding in the probate court these lands were decreed to be sold, and were on May 26, 1902, sold by the tax collector under said decree, and that at said sale Judson Lentz, since deceased, became the purchaser thereof; that on May 27, 1904, he received a deed thereto from the probate judge, which vested in him the legal title; that said Judson Lentz died without issue, the title descending to the defendants, the father and mother of said Judson Lentz; (2) that, if the proceedings in the probate court were void, the taxes for the year 1898 were not paid on said lands, and that said Judson Lentz, soon after his tax purchase, went into possession of said lands under claim of right, and that he and the defendants had held the same adversely for three years prior to July 31, 1907, when the suit was filed.

As to the first of defendants' contentions, the court below held that the proceedings in the probate court were void on the ground that the initial notice given by the probate judge and published to "owner unknown" required the taxpayer to appear before the probate judge on a certain date, and not before the probate court at its next term, and therefore that the probate court did not acquire jurisdiction to decree a sale. Smith v. Cox, 115 Ala. 508-509, 22 So. 78. But the court admitted the tax deed as color of title. Following this reasoning, the court below charged the jury that the plaintiff had shown a complete paper title to the land, and that the said proceedings in the probate court were inefficacious to destroy that title. This left open only two questions to be determined: (1) Whether or not the plaintiff had paid the taxes on the lands in controversy for the year 1898, which question, if found in favor of the plaintiff, was determinative of the case; but, if he did not pay such taxes for the year 1898, (2) whether or not Judson Lentz and the defendants had held the lands adversely under what is known as the "short statute of limitations" (section 2311 of the Code) for three years prior to July 31, 1907.

On the first question, only one witness was examined, the plaintiff, Roman, who testified in his own behalf that he had owned the lands in controversy since 1896; that the lands were assessed for taxes by the plaintiff in person during the years 1896, 1897, and 1898, and for the years subsequent thereto by George H. Parker, as agent for plaintiff; that he prepared in his office the assessment of said lands on a regular assessment blank, to which he attached a printed list of all the lands owned by him in Lawrence county, totaling 9,440 acres, for each of said years, a copy of which printed list--printed on a slip, not typewritten--such as was attached to such assessment blanks, was given in evidence, and embraces the lands sued for; that witness then swore to said assessment before a notary public in the city of Montgomery, wrote the tax assessor of Lawrence county a letter including therewith said assessment for each of the years named, which was properly addressed and postage prepaid, and caused the same to be placed in the United States mail at Montgomery, Ala., where witness lived; that inclosed with each of said assessments was a letter from witness to the tax assessor, requesting him to assess his taxes according to such statement, and that witness received from him an acknowledgment that he had received such assessment; that witness paid the taxes for each of said years, and received receipts therefor, but that all his correspondence, receipts, and checks pertaining to the matter, which were kept in his office, were destroyed by fire.

The only evidence offered by the defendants to show that the plaintiff had not paid the taxes on the land in controversy for the year 1898 was the tax assessment book made by the tax assessor for that year. While the record in this book purports to cover 9,440 acres of land, it omits one line from the long list of lands, thus omitting 440 acres of land embracing the lands sued for; but otherwise the assessment as recorded follows the list which witness Roman swore that he mailed to the tax assessor. A comparison of the printed list testified to by Roman with the assessment book of 1898 raises the natural inference that the tax assessor received the assessment forwarded by Roman, and that, in transcribing...