Harton v. Enslen

McCLELLAN, J.

-The general nature and purpose of this bill exhibited by H. M. Hartón (appellant) against E. F. Enslen and others may be found stated in the report of the former appeal. — 176 Ala. 77 , 57 South. 723 . After affirmance the bill was amended, and by decree of June 18, 1912, demurrers thereto were sustained. It is from this decree the present appeal is prosecuted.

The complainant appears on the face of the bill to be without interest in or right to the land in question, unless he obtained an interest or right thereto through the quitclaim deed from W. E. Martin, whose sole means for acquiring an interest or right to the land is to be found in the deed executed to Martin by the State Auditor on February 21, 1899.

In the effort to avoid the pronouncement, on the former appeal, that Martin’s deed to Enslen was effective before that of Martin to complainant, thus rendering the latter “wholly worthless as a muniment of title,” the bill was amended by the addition of these averments : “Your orator further avers that said E. F. Enslen had said W. E. Martin to date said deed prior to and before the date of the quitclaim to the land that said W. E. Martin executed to him, as averred and set out in paragraph 5 of this bill of complaint.” In paragraph 5 of the bill, mentioned in the just quoted amendment, this is the presently pertinent allegation: “Your orator further avers that said W. E. Martin sold said land to him, and on or about, to wit, the 20th day of March, 1903, executed to him a quitclaim deed to same in consideration of the sum of $186.28.” The deed *412 from Martin to E. F. Enslen, including the certificate of acknowledgment by the notary public, bears date of March 17, 1903. It is manifest, we think, that the amendment failed and fails to conclude to the effect that the Martin-Enslen deed was falsely antedated. Indeed, the averment consists with truth in respect of the date thereof. It imports in no degree the falsification of the true date of the Martin-Enslen deed. And the correctness of this view is emphasized when the quoted (ante) averment of paragraph 5, with respect to the date of the Martin-Harton deed, is considered. There the date of the Martin-Harton deed is described as being “on or about, to wit, the 20th day of March, 1903.” Such •uncertainty with respect to precedence in time, where the order in which acts are done must determine, as here, the rights of litigants, is far from the certainty required in pleadings of that nature.

A consideration of the whole amended bill and an interpretation of the effect of the amendment in the light of all other related portions of the amended pleading does not aid or supplement the effect of the amendment so as to avert the consequence of infirmity pointed out in this connection in the opinion on former appeal. Hence, the grounds of the demurrer taking this appropriate objection were properly sustained. While the amended bill has exhibited with it the deed of the State Auditor to W. E. Martin, dated February ■ 21, 1899, it is not made to appear from the bill that the notice required by Code (1896) § 4101, was given to the owner or other person interested in the land, or to the judge of probate upon the condition presented there- ’ in, that a purchaser had applied and that reasonable time for redemption would be given one entitled to redeem. '

*413 Unless relieved thereof by express statute, as is instanced by Code (1896) § 4075, Code (1907) § 2297, the burden is on him who traces his right to or interest in lands through tax proceedings to show affirmatively that the requirements of law with respect thereto were observed in the processes essential .for the transmission of title.' — McKinnon v. Mixon, 128 Ala. 612 , 29 South. 690 .

A condition precedent to the right of the State Auditor to make the sale and conveyance to W. E. Martin (February 21, 1899) was the giving of the notice prescribed in Code (1896) § 4101 (Crebs v. Fowler, 148 Ala. 366 , 42 South. 554 ) ; and we know of no statute that rendered the execution by the Auditor in 1899 of the deed of Martin or any recitals therein evidence prima facie in any degree of the observance by the State Auditor of the condition prescribed in section 4101. Accordingly, the third ground of the demurrer filed June 7, 1912, was well taken.

The decree of June 18, 1912, is hence affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.