In addition to the reasons given in opinion in Ex parte J. B. Helm, 95 So. 546,1 filed December 18, 1919, I wish further to say that the authorities cited by Mr. Justice SOMERVILLE, to the effect that the recitals of the chancery decree were sufficient to show the existence of jurisdiction in the premises, had not for consideration decrees for sale of property for taxes. The case of Wyatt's Adm'r v. Rambo, 29 Ala. 510, 68 Am. Dec. 89, was an order for the sale of slaves under the decree of the orphans' court; Cox v. Johnson, 80 Ala. 22, dealt with the recitals of a decree of the chancery court relieving minors of the disability of nonage; and in Bethune v. Newberry, 6 Ala. App. 573, 60 So. 478, the decree was of the court of county commissioners for the establishment of a stock law district; Gunn v. Howell, 27 Ala. 663, 62 Am. Dec. 785, was as to recital in judgment of a "return of no property," etc.
In the sale of lands for municipal taxes, the chancery court exercises a special, limited, and statutory power. Lodge v. Wilkerson, 174 Ala. 133, 56 So. 994. To support a decree for the sale of lands of an unknown owner, nothing is presumed; but the records must show all the facts necessary to jurisdiction or the decree of sale is a nullity. Burroughs on Taxation, § 111, pp. 285, 286. Since the decision in Elliot v. Doe ex dem. Eddins, 24 Ala. 508, to the later cases of Lodge v. Wilkerson, supra, Pollak v. Milam, 190 Ala. 569, 67 So. 381, and Gunter v. Townsend, 202 Ala. 160, 79 So. 644, it has been observed that the omission to comply with all the requisitions of the statute is fatal to a purchaser's title, although the tax deed may contain a recital of all statutory requirements. This general rule has only been relaxed by the recent statute (section 2297), in that a tax deed for the sale of lands for payment of state and county taxes is made prima facie evidence of the regularity of all proceedings subsequent to the judgment *Page 162 recited therein, in any controversy, proceeding, or suit involving or concerning the rights of the purchaser, his heirs or assigns, to the real estate assigned. Such a statute has not been enacted declaring such effect to the recitals contained in tax deeds where lands are sold for the satisfaction of municipal taxes. Such a sale was that in the instant case.
In McLendon v. Amer. Freehold Land Mortg. Co., 119 Ala. 518,520, 24 So. 721, 722, the rule declared by Mr. Burroughs was announced by our court that —
"The mere recitation of a jurisdictional fact in the judgment by a court of limited jurisdiction, as distinguished from courts of general jurisdiction, is not sufficient to show that the court in fact had jurisdiction."
In Pollard v. Mortgage Co., 103 Ala. 289, 295, 16 So. 801,803, Mr. Chief Justice Brickell said that from the petition for removing the disabilities of coverture of Mrs. Pollard, it must have appeared that she had a separate estate, and if the petition did not allege such a fact, the proceeding would have been coram non judice; that "jurisdiction was dependent wholly and exclusively upon the allegations of the petition; and if it was wanting in material allegations, the jurisdiction could not be created by proof, or by affirmation or recitals in the decree. The petition calling into exercise the power or jurisdiction of the city court, while perhaps, the decree would have been more formal, if it had affirmed the fact that Mrs. Pollard had a statutory or other separate estate, the omission of the affirmation, does not affect the regularity or validity of the decree. Wilson v. The Judge, 18 Ala. 757." It will be observed of this case that the petition was in every respect sufficient under the statute calling into existence the power or jurisdiction conferred by statute in the removal of disabilities of coverture; the holding was that the decree rendered thereon removing the disabilities of coverture was valid, "although such decree did not affirm that the petitioner had the statutory or separate estate." This is a decision of the converse of the question here presented and to my mind is persuasive that the former opinion in this cause by the writer announced the correct conclusion.
The case of Driggers v. Cassady, 71 Ala. 529, was a statutory real action in the nature of ejectment, and the title given was a tax deed. Mr. Justice Somerville, writing for the court, announced that the probate court being of limited jurisdiction in the matter of sale of lands, for the payment of delinquent taxes under the provisions of the statute to sustain such a sale, it must affirmatively appear of record that the court had jurisdiction both of the subject-matter and of the person; that such judgment entry, subjecting lands of a nonresident to sale for payment of delinquent taxes following the form prescribed by statute, reciting that "notice has been given as required by law, is sufficient under the act," although under its express provisions the landowner was entitled to notice by publication, etc.; that such proceedings are not exempted from the influence of the principle forbidding the collateral assailment of judgments for mere irregularities, or on any ground which could have been pleaded in defense. The justice further declared that of the special statutory powers conferred in the particular matter, the facts necessary to confer jurisdiction on the probate court, in any proceeding to enforce the collection of delinquent taxes, must appear affirmatively in the record; that "the docket of the tax collector, containing the delinquent list which is required by the act to be delivered into the office of the probate judge by March first of each year, is shown to contain all the essential entries and recitals necessary to confer jurisdiction of the subject-matter, and was delivered to the proper officer within the requisite time. The contention is only as to jurisdiction over the person of the owner. The judgment recites that 'notice has been given as required by law,' and it is insisted that this is the averment of a legal conclusion and not of a fact, and that the fact of notice by publication in a newspaper should have been particularly stated." It will be noted that jurisdiction of the subject-matter was required to be shown by the record — the delivery to the proper officer, within the requisite time, of the docket of the tax collector containing the delinquent list. The court having jurisdiction of the subject-matter, the question of notice was referred to the recital of the judgment that "notice has been given as required by law." I apprehend that such would not have been the decision had not the record otherwise shown that jurisdiction of the subject-matter was acquired as prescribed by statute.
In Gilliland v. Armstrong, 196 Ala. 513, 71 So. 700, construing section 2272 of the Code, providing that notice of proceedings for the sale of lands for delinquent taxes must be served by the tax collector, or his deputy, by handing a copy thereof to the party to whom it is addressed, or his agent, or by leaving a copy thereof at the residence or place of business of such party, or his agent, and, with his endorsement thereon, showing how and when served, or, if not served, showing his reasons for not serving the same, it must be by the collector, or his deputy, returned into court on or before the first day of the next term thereof, and, if the party against whom such assessment was made has since died, such notice must be served on his personal representative, if a resident of the county, it was declared that the recitals in a decree of the probate court authorizing the sale of the *Page 163 property by the tax collector, under the caption "Geo. C. Hardwick, Tax Collector, v. Armstrong, Georgia, Colored," were not evidence according to law against the husband of the said Georgia Armstrong, who had died after the assessment, leaving a husband, but no children. Mr. Justice Sayre said:
"It will be observed that the presumption of notice arises, not by virtue of the statute, but from the recital of the decree. Underlying the entire proceeding was the fact that the power of the probate court in proceedings for the sale of property for taxes was limited and statutory, and on familiar principle, to sustain its judgment, the record, in the absence of other proof of the regularity of the proceedings that went before, should have shown the facts essential to the exercise of its jurisdiction. Carlisle v. Watts, 78 Ala. 486; Johnson v. Harper, 107 Ala. 706, 18 So. 198. The record had itsbeginning in the tax collector's book. Assuming that 'Geo.' in the advertisement of sale may be allowed to stand for 'Georgia,' the name of the owner to whom the property was assessed, though we are not at all satisfied with the propriety of the assumption, the record showed a proceeding from beginning to end against Georgia Armstrong. The decree must be read with reference to the rest of the record. So read, it imports notice to Georgia Armstrong. But it cannot be sustained as a decree against her, for the very good reason that she died months before the decree was rendered. * * * As for the probate judge's deed, introduced by defendant, it was only 'prima facie evidence of the regularity of all proceedings subsequent to the judgment recited therein.' Code, § 2297. It did not cure defects in the record of the judgment and its necessaryantecedent proceedings." (Italics supplied.)
In Carlisle v. Watts, 78 Ala. 486, reference is made to the proverbial insecurity of tax titles, that in the exercise of the statute, the powers conferred on the probate court for the sale of lands for delinquent taxes are special and limited; and to sustain a judgment of the court, the record must affirmatively show the facts essential to the jurisdiction of both the subject-matter and the person. The question, whether the decree of sale "is conclusive of a valid assessment as to the person against whom the taxes are assessed, or whether the description and statements, as entered in the book delivered to the judge of probate, are sufficient to give the court jurisdiction of the subject-matter, are questions it is not necessary to consider or decide."
In Wartensleben v. Haithcock, 80 Ala. 565, 567, 1 So. 38,39, on authority of Driggers v. Cassady, supra, and Carlisle v. Watts, supra, the whole question is concluded by the observation that —
"A decree of sale, made in a proceeding, which does not show the existence of the facts on which the jurisdiction is based by the statute, is coram non judice, and is not evidence against the owner in a suit by a purchaser to recover the lands."
And in Crook v. Anniston City Land Co., 93 Ala. 4, 6,9 So. 425, is contained the declaration that a legal assessment is the initial step in tax proceedings, and is the foundation of the proceedings in the probate court for the condemnation of the land to the payment of delinquent taxes without which jurisdiction does not attach. "The assessment of lands to the owner should be regarded as more imperative under the present statutes. These statutes, upon the delivery by the collector of a book in which he is required to enter each parcel of real estate assessed to any person against whom taxes have been assessed, and the amount of unpaid taxes and charges due by such person, require the judge of probate to issue notice to the owner, his agent or representative, of each parcel of real estate entered in the book, to appear on a day named, and show cause why a decree of sale should not be made. The assessment, as entered in the book delivered by the collector to the judge of probate, is his only means of knowing to whom the notice must be issued."
In Doe ex dem. Saltonstall v. Riley, 28 Ala. 164, 181 (65 Am. Dec. 334), Mr. Chief Justice Chilton said of petitions for the sale of intestate's land made to orphans' court that —
"Although recitals in the decrees of courts of special,limited powers cannot give jurisdiction; yet, when the jurisdiction otherwise appears, as in this case by the exhibition of the petitions and the action of the court thereon, we may look to the decree, to see whether its action is predicated upon the petitions separately, or as constituting but one application."
In Arnett v. Bailey, 60 Ala. 435, a sale by a personal representative of devisee's lands for the payment of debts and the sale was collaterally attacked, Mr. Justice Stone declared that where the record shows that two petitions were filed, one will be considered an amendment of the other in order to sustain the jurisdiction of the court; and when the jurisdiction is shown to have attached by the filing of a sufficient petition, the sale cannot be collaterally impeached, because the names and residences of all the parties in interest are not stated in the petition; nor because less than 40 days elapsed between the filing of the petition and the day set for the hearing; nor because the order setting a day for the hearing of the petition appears to have been made several days before the petition was filed — such mere irregularities not affecting the validity of the sale when collaterally attacked. It is observed that jurisdiction is rested on the fact of a petition for the sale, sufficient to invoke the jurisdiction of the court to such end.
There are cases by our court declaring the prima facie effect of a recital in the decree *Page 164 of notice; that, while recitals of a decree that notice has been given as required by law may be prima facie sufficient, it does not prevent the introduction (in trial of ejectment) of the original notice in evidence to show whether a sufficient notice was given. McGee v. Fleming, 82 Ala. 276, 3 So. 1; Riddle v. Messer, 84 Ala. 236, 242, 4 So. 185.
After all has been said, there must be a valid assessment, and where the statute required the making up of a delinquent list, there must be a delinquent tax list made up as prescribed by law before there can be a valid sale. Metz v. Starcher,60 W. Va. 657, 56 S.E. 196; 116 Am. St. Rep. 925; Gunter v. Townsend, 202 Ala. 160, 79 So. 644; Mayor v. Allison,191 Ala. 316, 68 So. 142. The statutory requirements of a municipal tax sale are that an assessment having the force of a judgment be made (Code, § 1313); within the designated time after the taxes become delinquent, a list shall be made out and certified by the city or town clerk, etc. (section 1319); that such list shall be filed with the register in chancery, whereupon the register is directed to issue a summons (section 1320); and service perfected on an unknown owner is required by section 1321; and it is only after such statutory requirements have been complied with that a final decree is rendered. Gunter v. Townsend, supra.
The writer sought to make plain in former opinion that the whole proceedings must rest on statutory requirements — on a valid assessment by the town of Woodlawn before its consolidation with the city of Birmingham, etc. There is nothing in the record to show the necessary statutory compliance — of a valid assessment by the town of Woodlawn, nonpayment of taxes, and delinquency and certification thereof by the town of Woodlawn or by the city of Birmingham. It must be conceded, as stated in former opinion, that if the town of Woodlawn had a valid assessment, its consolidation with the city of Birmingham would thereafter, on default of payment of taxes, authorize the city of Birmingham to enforce that lien. Before the city of Birmingham, however, can take such statutory action as to such property, the record must affirmatively show that the town of Woodlawn had such lien and that delinquency was reported; and this the record does not show.
It would appear that jurisdiction of the subject-matter was not shown by the record otherwise than by mere recital contained in the decree of sale. This is not sufficient to show that the court had jurisdiction of the subject-matter to proceed to condemnation and sale.
McCLELLAN, J., concurs in the opinion of THOMAS, J.
1 Ante, p. 1.