Jackson v. Kirksey

HEAD,J. The action is statutory ejectment tore-cover possession of land which the plaintiffs claim as purchasers at a tax sale, made on or about May 10th, 1891. The sole question presented for decision is whether or not the certificate of acknowledgment appended to the conveyance of the probate judge, is in proper form. The certificate was as follows • “The State of Alabama, Choctaw County. I hereby certify that before me, B. F. Gilder, clerk of the circuit court in and for said county, personally appeared the above named O. C. McCall, judge of £>robate of said'county, personally known to me to be the judge of said county, at the date of the execution of the above conveyance, and to be the identical person whose name is affixed and who executed the above conveyance as probate judge of said county, and who acknowledges the execution of the same to be his voluntary act and deed as probate judge of said county for the purpose expressed. Given under my hand and seal this 15th day of May A. D. 1893. B. F. Gilder, Clerk.” When the conveyance, showing the foregoing certificate, was offered in evidence the defendant objected to it, on the ground that the acknowledgment was insufficient in that “it failed to show that the probate judge acknowledged before the officer that being informed of the contents of the conveyance he executed the same voL [550] untarily.” The circuit court sustained the objection, wheréupon the plaintiffs took a 'non-suit with a bill of exceptions. Section 592 of the Code of 1886, relating to tax deeds, provides that the deed of the probate judge, “when properly acknowledged and recorded,” shall convey the title of the former owner and of the person whose duty it was to pay the taxes, and the lien and claim of the State and county, but not the right, title or interest of any reversioner or remainderman. Section 593 requires that the deed shall be “acknowledged before some officer authorized to take acknowledgments of deeds.” According to these sections, it is obvious, that no title passes until the deed of the probate judge is both properly acknowledged and recorded.—Bolling v. Smith, 79 Ala. 535. It js also plain that the certificate was open to the objection made to it, if it be held that a proper acknowledgment must be in the form prescribed by section 1802. The certificate did not contain the statutory phrase, showing that the grantor acknowledged that he was ‘ ‘informed of the contents of the conveyance,” nor any words of equivalent import. It was, therefore, fatally defective as an attempt to comply with that section of the Code.—E. T. V. & G. Railway Co. v. Davis, 91 Ala. 615; Boykin v. Smith, 65 Ala. 294; Keller v. Moore, 51 Ala. 340. We call attention to the fact that the decision in Abney v. DeLoach, 84 Ala. 393, as to'the sufficiency of the certificate of acknowledgment, considered in that case, is in conflict with the later case of E. T. V. & G. R’way v. Davis, supra, in which we held substantially the same certificate to be defective. It does not appear that the earlier ruling was called to the court’s attention, in the later case, but we are of opinion that the exposition of Chief Justice StoNE in the Davis case is correct, and should be adhered to. The question then recurs, should the certificate have been in the form prescribed by section 1802? The sections of the Code, which we have quoted, merely provided that the deed of the probate judge should be ‘ ‘properly acknowledged” without prescribing any form, but we do not doubt that the legislature intended thereby to require the familiar form, which had prevailed for many years in this State, and which section 1802 declared was “to be used in this State on conveyances of every de [551] scription admitted to record. ” If any authority was necessary for this conclusion, we find it in the case of Abney v. DeLoach, 84 Ala. 393, supra, where we had under consideration section 2367 of the present Code, relating to the adoption of children, which requires the declaration of the person, desirous to adopt a child, to be acknowledged before the judge of probate, but which does not itself fix the form of- the certificate. Speaking upon this subject in the case just cited, we said : "No particular form of acknowledgment is given by the statute, but the obvious reference is by implication to the form prescribed for ordinary conveyances, which must be understood as being adopted for this class of cases.” This was. a correct statement of the law upon this question, although, as we have seen, the court was in error in declaring the certificate, brought to view in that case, to have been in substantial accord with the statutory form. The certificate now under consideration, is the same as that which was prescribed by section 86 of the act approved December 31, 1868, carried into the Code of 1876 as section 459, and, had that section continued in force, would have been sufficient.—Riddle v. Messer, 84 Ala. 236. That section, however, was not in force when this deed was executed. It was repealed by the operation of section 143 of the act approved February 17th, 1885, entitled, "An act to provide for the assessment and collection of taxes for the use of this State and the counties thereof, and to define the duties of officers engaged about the said assessment and collection of taxes,” and was not carried into the Code of 1886. Its rex^eal may have been due to the fact, that the certificate, thereby prescribed,' was exceptional and a departure from the familiar form to which the people and profession had become accustomed. Whatever may have been the motive of the lawmakers for the repeal, we think it necessarily results, that before the deed of the probate judge can be said to be "properly acknowledged,” as required by the Code of 1886, the certificate should substantially conform to the only model therein given "to be used in this State on conveyances of every description admitted to record.” The bill of exceptions states, that “it was proved and admitted that the deed is in the form furnished to the [552] probate judge by the Attorney-General,” and it is argued by appellants that section 594 of the present Code, in requiring that officer to furnish the Auditor suitable forms of certificates of purchase and deeds to purchasers at sales of real estate for taxes, authorizes him to adopt a form of certificate, and validates any form he may furnish. If the language of the bill of exceptions which uses the word deed merely could be fairly construed to mean, that the Attorney-General furnished the form of certificate of acknowledgwertt employed in this instance, we do not think that the result claimed can be admitted. The legislature did not direct the Attorney-General to prepare forms of certificates of acknowledgment; that is made by the officer taking the acknowledgment. -The certificate of acknowledgment must substantially accord with the usual form. The ruling of the circuit court was in accordance with these views, and its judgment must be affirmed. Affirmed.