Doe ex dem. Evers v. Matthews

SAYRE, J. Defendants (appellees) being in possession of a tract of land under a tax title purchased from the state, plaintiff, the former owner, sued in ejectment, alleging sundry defects and deficiencies in the title under which defendants claimed. The cause being tried by the court without the intervention of a jury, judgment was rendered for defendants on the evidence stated in the record. This property was sold for taxes due from appellant, the then owner, under a decree of the probate court in the summer of 1901, and hid in by the state. Persons under whom appellees claim purchased the property from the state auditor in September, 1903. This suit was brought in July, 1913. Other facts are stated in the agreement to be found in the record, and ivill be referred to as necessary in dealing with the objections taken to appellees’ title. (1) In giving notice of the sale of the state’s title, the auditor and the judge of probate followed in respect [185] of notice to the former owner the provisions of that part of the act of March 4, 1903 (Acts 1903, p. 184 et seq.), which purports to amend section 4101 of the Code of 1896. Appellant contends that the auditor should have pursued the proviso of section 4 of the act of February 15, 1899 (Acts 1898-99, p. 121), reading as follows : “Provided, that upon application for the purchase of real estate under this act, the auditor shall notify the former owner thereof, and give him sixty days’ time after such notice in which he may redeem.” It was enacted in the last section of the act of February 15, 1899, that all laws and parts of laws in conflict with the provisions of that act be and the same were thereby repealed. Section 4101 of the Code of 1896 dealt with the subject of notice to the former owner before sale by the auditor, providing a notice different from that prescribed by the proviso to secton 4 of the act of February 15, 1899. This section of the Code of 1896 clearly was repealed by the proviso of the act of February 15, 1899. The sum of appellant’s argument on this point, then, is that the enactment of March 4, 1903, the general revenue law of that year, in so far as it prescribes notice in cases of sales by the auditor, is of no effect, for the reason that section 4101, which it purports to amend, had been previously repealed. The argument is unsound. What the Legislature intended by the act of 1903 to prescribe in the matter of notice is plain beyond cavil. This intention must be given effect, as for any objection to the method of its expression to be found in section 45 of the Constitution, because the subject-matter was germane to- the state’s revenue and the legislative will was set out in extenso. The reference to section 4101 of the Code is no- more than a legislative recognition of the fact that it was dealing with the subject that had been before that dealt [186] with in the section named. The injection or omission of this reference was not, nor could have been, of any consequence, since without it the legislative will was clearly and fully expressed, and so expressed as to operate necessarily as a repeal of the proviso' of the act of February 15, 1899, not to mention the concluding general clause repealing all laws and parts of laws inconsistent therewith. — Street v. Hooten, 131 Ala. 492, 32 South. 580; Ferguson v. Commissioners of Jackson County, 187 Ala. 645, 65 South. 1028. On this point the court below committed no error. (2, 3) Properly, also, the court held that appellees in possession (Long v. Boast, 153 Ala. 428, 44 South. 955) were entitled to the benefit of the short statute of limitations of three years provided by section- 2311 of the Code of 1907. So much of this section as needs be quoted is in these words: No action for the recovery of real estate sold [by the tax collector to an individual purchaser under decree of the probate court] for the payment of taxes shall lie, unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor. Section 2325 provides: When lands have been sold by the state, as provided in the two preceding sections [providing for sales by the auditor where the state has bid in the land, as in this case], and the purchase money had been paid, the state auditor, in behalf of the state, shall execute to the purchaser a deed, * * * and he shall be clothed with all the rights, liens, powers, and remedies, whether as plaintiff or defendant, respecting said lands as an individual purchaser at the tax collector’s sale would have in similar circumstances. There is nothing in section 45 or elsewhere in the Constitution prohibiting such reference provisions in the Code as that just quoted from section 2325. The refer [187] ence and the provisions referred to are parts of one enactment, the Code; whereas, the constitutional mandate that no law shall he revived, amended, or the provisions thereof extended or conferred, by reference to its title only, controls, the legislative enactment of separate and distinct statutes, both of which cannot be considered by the legislature at one and the same time. References of this sort are of common occurrence in the Code, and we find no reason why they should be condemned. In Hooper v. Bankhead, 171 Ala. 626, 54 South. 549, considering the proper interpretation of section 2825, and noting a difference in the situations of a purchaser from the tax collector and a purchaser from the auditor, it was said to be by no means clear that section 2325, conferring on purchasers from the auditor the rights, remedies, etc., enjoyed by purchasers from the tax collector, comprehended the short statute of limitations provided by section 2311; but, the question having been obviated in that case by considerations stated, it was left for future decision. Now, upon further consideration, we are of opinion that the legislative purpose was to make the short statute of limitations applicable to cases of purchase from the auditor, as to cases of purchase from the tax collector. There is as much reason for a short statute of repose in the one class of cases as in the other. The latest legislative treatment of the subject appears to have had in view the propriety of putting purchasers in the two cases upon something like a footing of equal advantage. In any case, whether the state or an individual buys at the tax collector’s sale, the former owner has two years in which to redeem before a deed can be made to the individual or a sale made by the auditor, and while it is undeniable that more specific language might have been employed, still, construing section 2325 in [188] furtherance of the manifest legislative purpose to establish the value of tax titles by promoting their repose, and yet without doing the slightest violence to the letter of the section — indeed, following the broad general ten- or of its language — we think it must be held to extend the short statute provided in section 2311 to cases in which title is claimed under a deed from the auditor. Other questions argued in brief of counsel for appellant have been decided adversely to him in Gamble v. Andrews, 187 Ala. 302, 65 South. 525. What was there said need not be repeated. Finding no error, the judgment will be affirmed. Affirmed. Anderson, C. J., and McClellan and de Graffenried, JJ., concur.