Feagin, Kendall & Co. v. Jones

WALKER, J. — The defendants reserved exceptions to the action of the trial court in overruling their objections to the introduction in evidence of the book containing the tax-collector’s entry of the land sued for as assessed for taxation, and the decree of the Probate Court for the sale of the same ; and to the introduction of the deed to said land made by the probate judge to the plaintiff. The defendants did not estop themselves from making or insisting upon these objections by setting up title in themselves to the land in dispute, under another alleged tax-sale based upon the same proceedings. The plaintiff and the defendants respectively claimed under separate and distinct sales and deeds made at different dates. The two claims were adverse and inconsistent. There was nothing in the respective positions of the parties to preclude a denial by either of the -validity of the other’s title. The effort of each party was to show that it had acquired the title of the Mobile & Girard Railroad Company to the land in dispute, and, perhaps, neither could have required the other to go beyond that common source of title (Lang v. Wilkinson, 57 Ala. 259; Pollard v. Cocke, 19 Ala. 188); but, as the parties sought to connect themselves with that title by different means, and there was no relation between them to raise an estoppel in favor of the one as against the other, the burden was on the plaintiff, as the actor in the suit, to' sustain his contention by proving title in himself; his right to recovery depends upon the strength of his own title; and if he is not able to show that he has duly acquired whatever title to the land there was in the railroad company, his position is not strengthened by the fact that the defendants also fail in a similar attempt to show that they have acquired that title. — 3 Brick. Dig., p. 325, §§ 38, 39. The positions of the parties are similar to that of two persons claiming the same land under different and conflicting deeds from the same grantor. If both of the deeds are invalid as conveyances, the holder of one of them would not be aided thereby in an attempt to recover possession of the land from the person claiming under the other defective [600] muniment. If the decree of the Probate Court relied on in this case was void, it does not help the plaintiff that the defendants also claim title through another deed based upon a sale under that same void proceeding. The defendants objected to the proof introduced to show the alleged tax-sale, because of the absence of the required showing that there was no personal property out of which the taxes could ‘have been collected. The Probate Court is empowered to order the sale of lands for the payment of taxes assessed thereon or against the owner thereof, only when the tax-collector shall report to the court that he was unable to find sufficient personal property therefor; and, at the end of the entries in reference to unpaid taxes on real estate required to be made in the docket, which it is the duty of the tax-collector to deliver to the judge of probate, he must make and subscribe an oath showing that he has made diligent search for personal property of the parties against whom the taxes are respectfully assessed,- and that after diligent search he has been unable to find sufficient personal property out of which to collect the taxes, or any part thereof. — Code of 1886, §§ 566, 567, and 568. It is plain from the language of the statute that the inability to find personal property from which to, collect the taxes, and the affidavit of the tax-collector on his docket to this effect, are jurisdictional lacts which are essential to the validity of any decree for the sale of land for the non-payment of taxes; and, under the established construction of the statute, the docket required to be- returned by the tax-collector must affirmatively show these jurisdictional facts; if it does not, the decree and sale thereunder are nullities.— Wartensleben v. Haithcock, 80 Ala. 565; Carlisle v. Watts, 78 Ala. 486. In the tax-collector’s docket, introduced in this case as the foundation of the plaintiff’s title, there was not the required affidavit, nor, indeed, any showing at all that a search had been made for personal property, or that a sufficiency thereof could not be found. The court erred in overruling the defendant’s objection to'the admission of the docket and of the tax-deed. They were mere nullities, the jurisdiction' of the Probate Court not being shown, and they furnished no evidence of title in the plaintiff. The affirmative charge to find for the plaintiff ca-n not be supported on the proof of his prior possession of the land sued for, as the proof on that subject was conflicting, a witness for the defendant stating that the plaintiff had never been in possession of the land. The charge should have been refused. There was no ruling of the court involving the question as to whether, on the aspect of the evidence most favorable to [601] the plaintiff, such prior possession of the land by him was shown as is requisite to the maintenance of ejectment. It is not plain that the proof on this subject was sufficient to support a finding for the plaintiff against these defendants, on prior possession alone. — Alexander v. Savage, 90 Ala. 383; Rivers v. Thompson, 46 Ala. 335; Childress v. Calloway, 76 Ala. 128. Reversed and remanded.