McGee v. Fleming

CLOPTON, J. — Service of notice, and return thereof, as required by the statute, are essential to the jurisdiction of the court to decree a sale of land for the payment of taxes, and should appear of record. Whilst it may be that the recital of the decree of sale is prima facie- evidence of proper and sufficient notice, when the notice served has been lost or mislaid, it would be competent to introduce the original notice, if in existence, to show its character, to whom issued, and upon whom and how served. The original notice having been destroyed without being'recorded, it was competent to prove by the judge of probate its destruction, and that it was issued to “the estate of John Carnett, deceased,” to. whom the land was assessed as entered in the docket delivered to the judge of probate by the tax-collector. Such evidence does not vary or contradict the recital of the decree, “that notice has been given as required by law,” there being no recital of the contents of the notice. In Carlisle v. Watts, 78 Ala. 486, we held, that in case of the death of the owner of real estate, notice to the estate of the decedent is insufficient, and that notice should be given to the personal representative, or to the heir, — to some person having an adverse interest, and capable of appearing and defending. As shown by the record, John Carnett had been dead for twenty years before the assessment of the land for taxes; no personal representative of his estate had ever been appointed, and the wife of the defendant was his [278] only heir, and had resided in the county since the death of her father. Notice was not served on her. The judgment is affirmed, on the authority of Carlisle v. Watts, supra.