Wartensleben v. Haithcock

• Decision Date: 10 January 1887
• Citation: 80 Ala. 565,1 So. 38
• Parties: WARTENSLEBEN v. HAITHCOCK.
• Court: Alabama Supreme Court

1 So. 38

80 Ala. 565

WARTENSLEBEN v. HAITHCOCK.

Supreme Court of Alabama

January 10, 1887

Appeal from circuit court, Limestone county.

Statutory real action in the nature of ejectment.

McClelland & McClelland, for appellant.

Humes, Gordon & Sheffy, for appellee.

CLOPTON J.

The title of the plaintiff to the lands in controversy is founded on a sale, under a proceeding before the judge of probate for the condemnation of the lands for the payment of delinquent taxes, as provided by the act of February 12, 1879, entitled "An act to provide for the sale of lands and other real estate for delinquent taxes, and the redemption thereof." Acts 1878-79, p. 3. The plaintiff having taken a voluntary nonsuit, we can only revise the decisions of the court which made it necessary for the plaintiff to suffer a nonsuit. The only errors assigned which we can consider relate to the exclusion of evidence, and the refusal of the court to allow the complaint to be amended.

The plaintiff offered in evidence a book, purporting to contain entries of each parcel of the lands, the name of the person against whom the taxes were assessed, the amount of the unpaid taxes and charges, and the decree of condemnation and sale. On March 1, 1880, the tax collector made out and delivered to the judge of probate an imperfect docket on fools-cap or legal-cap paper, showing the list of delinquent tax-payers for 1879, the real estate described as assessed to each, and the amount of unpaid taxes due from each delinquent, all or a portion of which tax was assessed on real estate. From this imperfect docket, which was not prepared in compliance with the statute, the judge of probate caused to be prepared the book offered in evidence. It was admitted that no affidavit whatever was made and subscribed at the end of the book, and it is not shown that an affidavit such as is required by the twelfth section of the act was made and subscribed and entered at the end of the docket made out and delivered by the tax collector.

The jurisdiction conferred on the judge of probate in a proceeding to enforce the collection of taxes by a sale of lands is statutory, special, and limited, and must affirmatively appear. Driggers v. Cassady, 71 Ala. 529; Carlisle v. Watts, 78 Ala. 486. A decree of sale, made in a proceeding which does not show the existence of the facts on which the jurisdiction is based by the statute, is coram non judice, and is not evidence against the owner in a suit by a purchaser to recover the lands.

The statute imposes on the tax collector the duty "to procure a substantially bound book, at the expense of the county, in which he shall enter, in the manner usual for docketing causes for trial in the circuit courts, each parcel of all real estate assessed to any person or persons against whom taxes have been assessed, which are not paid, when a portion or all of said taxes are on said real estate, describing each parcel in the same manner it was assessed, and the amount of the unpaid taxes and charges due by such person or persons;" and to deliver such book into the office of the judge of probate. Unless the book is properly prepared, the judge of probate must cause it to be done at the expense of the collector. The docket thus prepared is the foundation of the statutory notice to be issued by the judge of probate to the owner, his agent, or representative, of each parcel of land entered therein, to show cause on a day named why a decree should not be made for a sale of the land for the payment of the state and county taxes and costs, and of a decree of sale in the event he interposes no defense. By the twelfth section immediately succeeding the provision that if, under any sale had under its provisions, any lands are bid in by the state, the collector shall not be entitled to credit for the taxes on such lands, unless he files with the auditor an affidavit that no personal property could be found by reasonable search out of which to collect the taxes for which the lands were sold, it is enacted: "And provided, further, that said collector shall, at the end of the book required by the first section of this act, enter, make, and subscribe the following oath, to be administered by the judge of probate in whose office it is filed: ' I do solemnly swear I have in each case entered in this book made diligent search for personal property of the party against whom the taxes are respectively assessed, and, after diligent search, I was unable to find sufficient personal property subject to taxation, from which to collect taxes, or any part thereof."'

Without alluding to the imperfect and improper manner, in disregard of the requirements of the statute, in which the docket was prepared by the collector, we shall confine the consideration to the inquiry whether the inability of the collector to find sufficiency of personal property, by diligent search, from which to collect the taxes, to be shown by the statutory affidavit of the collector, is a jurisdictional fact.

It is insisted the position and connection of the proviso and the context show that the affidavit is only a condition, on the performance of which the collector is entitled to a credit for the taxes on lands bid in by the state. A statute should be so construed as to give some effect and operation to each word and phrase, and all relating to the same subject-matter should be construed together. Though the proviso is found in a section, and immediately follows a particular phrase, its effect is not necessarily limited and restricted to the same section. Generally, the appropriate office of a proviso is to restrain or modify the enacting clause, or preceding matter and should be confined to what precedes, unless the intention...