Watson v. Kent

SOMERVILLE, J. In Driggers v. Cassady, 71 Ala. 529, we construed the act of the General Assembly approved February 12th, 1.879, entitled “An act to provide for the sale of land and other real estate for delinquent taxes, and the redemption thereof.” — Acts 1878-9, pp. 3-8. We there laid down, as a general rule, that where the lands of an owner had been judicially condemned to the payment of taxes, by a judgment of the Probate Court rendered in conformity to the provisions of this act, the record prima facie showing jurisdiction, such judgment would be conclusive on the tax-payer, and could not ordinarily be attacked on any ground which could have been pleaded in defense on the trial, or in bar of the rendition of such judgment of condemnation. To this rule there seems to be, at least, one exception, which is specified in an act of the General Assembly approved February 13th, 1879 — one day later than the former act — and which is entitled “An act re-, lating to land sold for the payment of taxes.” This statute provides, among other things, that where a tax-sale, from any cause, is invalid to pass the title of land to the purchaser, it shall nevertheless operate to transfer to the purchaser the lien of the State or corinty on the property, for the payment of the taxes for which it was sold. — Acts 1878-9, pp. 8-9. The purchaser, or any one claiming under him, is authorized to sue the owner to recover possession of such lands; and it is de'dared that, “if final judgment be rendered that the plaintiff is not entitled to recover possession, on the ground of any invalidity in such sale, except for the reason the taxes were not due,” the court shall impanel a jury to ascertain the amount of taxes for which the land is chargeable in the plaintiff’s favor, 604 and shall render judgment for him in this sum, with "interest at the rate of twenty-five per centum per annum,, with costs of suit; which is made a lien on the land, and may be enforced by execution as in other cases. — Acts 1878-79, § 3, p. 9. We can place but one construction on this act, which, being more recent in date than the act approved February 12th, 1879 —construed by ns in Driggers v. Cassady, supra — must operate to repeal it so far as there is any conflict between the two. The later statute recognizes the fact, that there may be cases where the judgment of the Probate Court, ordering the sale of lands for taxes, under the provisions of the older statute, is not conclusive on the owner as to its validity ; and one of the exceptions, which is designated eo nomine, is where “ the taxes were not due.” It is true that the judgment itself finds specially that such taxes were due and unpaid, and any proof of such payment contradicts the judgment. But. the answer to this is, that the statute authorizes this to be done, where for any reason the owner did not owe the tax. The evidence introduced in the present case shows that the owner had paid his tax, and nothing therefore remained due from him to the State or county. This evidence was properly admitted, under the influence of the statute under discussion; and the judgment must be affirmed,