Street v. Doyle

ANDERSON, C. J. Section 2306 of the Code of 1907 provides for the assessment of taxes, etc., paid by the defendant in action brought against him, or any one holding under him, for a recovery of lands when he defends under a tax title, and his defense fails upon the ground that the tax sale was invalid for any other reason than that the taxes were not due. The sale here referred to applies to the original tax sale, and not to the invalidity of an attempted conveyance by the purchaser at a tax sale to a subsequent purchaser. In other words, in order for sections 2305 or 2306 to be available either to the purchaser at the tax sale, or one purchasing from him, the defense must have failed on account of the invalidity of the tax sale, and these sections do not apply to the transmission of the title to subsequent purchasers.—Trotter v. Moog, 150 Ala. 460, 43 South. 710. This statute would, no doubt, be available to one holding under the purchaser at the tax sale, but it does not attempt to cover defects in sales by the purchaser at [334] the original tax sale-to subsequent purchasers; it ap plies only to the invalidity of sales made for the nonpayment of taxes by the tax collector, and not to sales made by the auditor of lands purchased by the state at said original tax sales. Therefore a compliance or noncompliance with the statute in sales made by the auditor of lands bid in by the state affects only the rights acquired from the state, and sections 2305 and 2300 have no application to the invalidity of such sales. It seems that the defense failed in this case, for the reason that he did not show a valid purchase from the state, under the rule declared in Crebs v. Fowler, 148 Ala. 366, 42 South. 553, not upon the ground that the tax sale at which the state bought the land was invalid. It seems that in the case of Cobb v. Vary, 120 Ala. 263, 24 South. 442, the court allowed the purchaser from the auditor to invoke the predecessors of sections 2305 and 2306, but it appears that the plaintiff’s title failed because of the invalidity of the original tax sale, as the regularity of the second sale, the sale by the state after purchasing at the tax sale, Avas not questioned, we therefore hold that the trial court erred in permitting the defendant to recover a judgment for the unpaid taxes, etc., as provided by section 2305. The judgment of the trial court is reversed, and the cause is remanded. Reversed and remanded. McClellan, Sayre, and de Graffenried, JJ., concur.