Childress v. Calloway

CLOPTON, J. — The appellant brought the statutory real action to recover the possession of lands, to which he claimed title under two deeds, executed by the probate judge — one, August 29, 1874, and the other, May 21,1»77; the latter deed having been made to correct a misdescription of the lands in the first deed. Prom the recitals of the deeds it appears, that the lands in controversy were sold by the tax-collector, in May, 1871, for taxes due for the year 1870, and were bid off in the name of the State. By the Revenue Law in force at the time of this sale, the tax-collector was required, when real property was sold for taxes, and purchased by an individual, to make out and deliver to the purchaser a certificate of purchase, which was assignable by indorsement, and the assignment thereof vested in the assignee and his legal representatives all the right and title of the original purchaser. If the real property was bid off in the name of the State, the tax-collector was required to make a certificate of purchase to the State, which was transferable by the Auditor, the same as a certificate of purchase made to an individual. Real property, sold for taxes, and purchased by the-State, was subject to the same rules of redemption as when purchased by individuals. The right to redeem was conferred upon “ the owner, his heirs, or legal representatives ;” and upon the application of any party to redeem, the probate judge, being satisfied of his right, upon payment of the amounts required by the law, issued a certificate of redemption, which was countersigned by the treasurer, and was not evidence of such redemption, without the signature of the treasurer. If the real property was not redeemed within the time allowed by law, all the right, title and interest of every person whomsoever, in and to such real property, were transferred to, and vested absolutely in the State. These provisions of the Revenue Law show, that if real property, sold for taxes, and purchased by the State, was redeemed, the probate judge issued' a certificate of redemption, and, if not redeemed, the mode of transferring the title of the State, pi’ovided by the law then in force, was by an indorsement of the certificate of purchase by the Auditor.' — Acts 1868, pp. [133] 319-321. By the act of March 8, 1876, the Auditor was authorized, when one or more parcels, or a large parcel of land is included in one certifícate of purchase, instead of transferring such certificate to any person paying out a portion of the lands, to give such person a certificate, showing such payment, and including a description of the lands so paid out. — Acts 1875-6, p. 100. A conveyance, made by the probate judge, without legislative authority, does not pass the title of the owner of lands sold for taxes. The only authority conferred upon the probate judge, in this respect, by the Bevenue Law of 1868, or the law of 1871, was, to make a deed to the purchaser, or the assignee of the certificate of purchase, after the expiration of the time for redemption, the land remaining unredeemed. The plaintiff was neither the purchaser, nor the assignee of the certificate of purchase. The deeds offered to be introduced in evidence are inoperative as muniments of title — are mere nullities. The defendant was, at the commencement of the suit, in possession of the lands as the tenant of William Orrell, who claimed under a conveyance from the widow and heirs of John Wallace, who was the patentee, and who died in 1861. The patent and conveyance were in evidence. It is insisted, that the deeds of the probate judge constituted color of title, although invalid, and are admissible in evidence to show possession in the plaintiff, and the extent of his possession, at the time the conveyance to Orrell was executed. A conveyance which is iuvalid, but may, under proper circumstances, operate as color of title, does not draw to it constructive possession, and, by itself, does not tend to prove adverse possession. While color of title is not an essential element of adverse possession, it is necessary that the possession be actual, visible and notorious. Where there is title, or color of title, possession of every part of the land is not required; for, in such case, if there be no antagonistic possession, a possession of a part will be regarded as a possession to the boundary specified. “ The possession must always be as definite as the character of the land is susceptible of, and must be evidenced by public acts, such as a party would exercise over his own property, and would not exercise over another’s ; must be continued, and so notorious, that the owner may reasonably be presumed to have notice of the possession, and of the claim of title.” — Farley v. Smith, 39 Ala. 38. The cutting and removing of timber from wild lands, unfit for any other use, may amount to a possession, and, if accompanied by color of title, may constitute a disseizin. But the cutting of a small quantity of timber on two occasions in 1875 and 1876, from land which, although principally valuable for the pine timber, is good grazing, and moderate [134] farming land, well suited for a homestead, and possession is not continued, is not an act so distinct, notorious and continuous, as the rule requires, to vitiate a conveyance. — Farley v. Smith, supra; Rivers v. Thompson, 46 Ala. 335. Unless accompanied by evidence from which an inference may properly be drawn, that the plaintiff was in the actual, visible possession of the lands at the time the conveyance to Orrell was executed, the deeds are not admissible to show the extent of possession. It is sufficient, however, to sustain the ruling of the court, that the deeds were offered, not as an element of an adverse possession, but as a muniment of title, and as such are inoperative. — Boykin v. Smith, 65 Ala. 295. To maintain the statutory real action, there must exist a pi’esent right of enti'y and of possession on the part of the plaintiff, and a wrongful possession by the defendant. — Callan v. McDaniel, 72 Ala. 104. “ The general and well-established rule, in cases of ejectment, is, that the plaintiff is required to recover, if at all, upon the sti’ength of his own title, and not upon the mere weakness of his adversary’s.”— Wilson v. Glenn, 68 Ala. 383. If his right to recover depends upon a tax-title, having its origin in a sale made prior to the passage of the act of February 12, 1879, he must show that all the provisions of the law, antecedent to, and authorizing the sale, have been substantially complied with. No presumption can be i’aised to cure any substantial defect in the proceedings, and the pi'oof of regularity devolves upon the party who claims under such title. — Oliver v. Robinson, 58 Ala. 46. As against a mere trespasser, “ a bare peaceable possessioix by an actual occupant, under claim of ownership, is ordinarily sufficient to authorize a recovery; and such trespasser can not defend successfully by showing an outstanding title, with which he in no way connects himself.” Actual occupancy, and the fact that the defendant is a mere trespasser, must concur, to preclude the defendant from showing paramount title in a third persoxx. Prior possession, if sufficient to create' a presumption of title, may be rebutted, by showing title in the defendant, or an outstanding title in another where the defendant is not a mere trespasser. — Wilson v. Glenn, supra. Although the plaintiff had prior possession, with a claim or color of title, if his possession had ceased, and he was not in the actual adverse occupancy of the lands, at the time the conveyance to Orrell was executed, the defendant may show' such outstanding title to defeat a recovery. The legal title was in Orrell, and the only inference that can be properly drawn from the evidence, as set out in the bill of exceptions, is, that when the plaintiff ceased to cut timber off [135] the lands, his actual possession ceased, and he was not in the actual possession at any time thereafter. There is no error in tlio charge of the court, and the judgment is affirmed.