Summary
In Abates v. Timbes, 214 Ala. 591, 108 So. 534 (1926), the Alabama Supreme Court considered whether former § 3119, Ala. Code 1923, an identically worded predecessor statute to § 40-10-131, acted to bar the recovery by the owner of damages for the detention of a parcel of property when the possessor's claim arose from a void tax deed. Our supreme court noted that "[former] § 3119[] exempts the purchaser at a tax sale who has `lawfully obtained possession' from liability to account for rents, issues, and profits `upon redemption.'"
Summary of this case from Mitchell v. CurryOpinion
1 Div. 397.
May 13, 1926.
Appeal from Circuit Court, Mobile County; J. W. Goldsby, Judge.
J. G. Bowen, of Mobile, for appellant.
It was error to sustain demurrer to special pleas setting up a tax title in defendant. Acts 1919, p. 363, §§ 281, 282, 284, 299, 306. The complaint is faulty in matter of description, and failure to show the county wherein the property is situated. Carling v. Wilson, 177 Ala. 85, 58 So. 417; Ware v. Bradford, 2 Ala. 676, 36 Am. Dec. 427; Gager v. Doe, 29 Ala. 341.
Brown Kohn, of Mobile, for appellee.
The description is sufficient. Rayburn v. Elrod, 43 Ala. 700; Lessley v. Prater, 200 Ala. 43, 75 So. 355. It was not essential to show that the land was located in Mobile county. Anniston Elec. Gas Co. v. Elwell, 144 Ala. 317, 42 So. 45. Injury will not be presumed from error in rulings on pleadings. Miller v. Mutual Gro. Co., ante, p. 62, 106 So. 396.
The complaint in statutory ejectment need not aver that defendant "unlawfully entered." Sufficient to aver that he "entered and unlawfully withholds." Code, p. 510, form No. 32.
The description of a lot, as located in the city of Mobile, and otherwise sufficient, is not defective for failure to name the state and county. Courts take judicial notice that the city of Mobile is located in Mobile county, Ala. In ejectment, the only appropriate plea in bar is the general issue "not guilty." It puts in issue the plaintiff's right of possession, and invites any evidence to defeat his title and right of possession to the time of trial, or any evidence supporting the claim of title and right of possession in defendant, however acquired. This includes a tax title. Etowah Mining Co. v. Carlisle, 127 Ala. 663, 29 So. 7; Bynum v. Gold, 106 Ala. 427, 17 So. 667.
Special pleas 2, 4, 5, 6, and 7 interposed "separately and severally" in "answer to the complaint" seeking to set up a tax title in defendant are covered by the general issue, and, if sufficient in their averments, no injury was suffered by sustaining demurrers thereto. Pleaded separately in answer to the complaint made them several pleas in bar. If issues were joined thereon, proof of the averments of either of them would entitle defendant to a verdict.
They cannot be treated as mere statements, incorporated in the plea of the general issue, or appended thereto, to the effect that the pleader defends "under a tax sale, giving the date of such sale," under Code, § 3104. This statement is not an independent plea in bar, but a statutory requirement in pleading to obtain the benefit of the tax refund provisions of the preceding sections in case his tax title fails.
Code, § 3119, exempts the purchaser at a tax sale who has "lawfully obtained possession" from liability to account for rents, issues, and profits "upon redemption."
The purchaser at a tax sale obtains a certificate of purchase, but no deed passing title until the end of the redemption period of two years. Usually the right of possession follows the legal title. So, in the absence of statute, the purchaser at a valid tax sale was not entitled to possession until he obtained his tax deed. Costley v. Allen, 56 Ala. 198. By statute of February 17, 1885 (Code of 1886, § 599 [Code of 1923, § 3099]), the purchaser is entitled to, and may sue for, possession six months after the tax sale. Section 3119 appeared as part of the same statutory system. Code 1886, § 613. It is intended to protect the purchaser at a valid tax sale, who has lawfully obtained possession before acquiring the legal title, from liability to account for rents upon redemption. It confers no right of entry upon a claimant under a void tax sale as against the lawful owner, nor does it relieve him of damages for detention, whether holding under a void certificate of purchase or a void tax deed.
A deed from the state auditor to lands bid in by the state carries no greater right or title than a deed to the individual purchaser at a tax sale. Code, § 3123. In either case he cannot maintain or defeat a suit for possession save upon proof of a valid tax title through regular proceedings to that end.
The plaintiff in this action, the owner of the property, recovered in ejectment from the claimant under a tax deed from the state auditor. There is no bill of exceptions, and the right of recovery is not questioned. This was conclusive of the question of the wrongful detention of the property by defendant, and his liability for rents or damages for detention. Plea No. 3, claiming rightful possession and freedom from rents under Code, § 3119, was covered by the general issue.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.