The appellee in the brief filed to support the application for rehearing states:
"The residence property of Mr. W. L. Chenault, an attorney of this court, constitutes a magnificent rural estate in the City of Russellville, Alabama, located in a populous urban residential area. The same was assessed for street improvements by the City Council in a large amount in the year 1927.
"In two successive trials of the appeal in the Law Equity Court, the amount of the assessment was fixed at $4,000.00 by two different Judges of the Law Equity Court, an amount radically less than the original assessment. The second judgment fixing the assessment was affirmed on the second appeal to the Supreme Court.
"Thereafter, the assessment not having been paid and the property owner being in clear default, the city sued out a writ of venditioni exponas for the sale of the property, as authorized in the judgment entry. Pending the proceedings in the Law Equity Court, Mr. Chenault permitted the property to sell for unpaid state and county taxes. At the tax sale the property was struck off to the State of Alabama. Shortly afterthe expiration of three years from the date of the sale, Mr.Chenault obtained a conveyance of the tax title from the state,naming the grantee and purchaser as Miss Lucy Downing, theappellant here. Miss Downing is Mr. Chenault's sister-in-law,and a member of his family." (Italics supplied.)
That is not the case presented on this record, as clearly appears from the foregoing opinion dealing with the case presented by the cross-bill, which admits that the original complainant, Downing, acquired and holds the legal title to the property, acquired through her purchase and conveyance from the state. We are confined to the case presented by the cross-bill, the averments of which are construed most strongly against the pleader. Jones et al. v. Jones et al., 230 Ala. 465,162 So. 113.
The foregoing opinion is denounced as contrary to the settled law and policy of the state in the exercise of its taxing power.
Section 3126 of the Code of 1923, defined the character and quality of the title passing to the state to lands bid in by the Judge of Probate at tax sale for the state. "All the right, title, and interest of the owner of such real estate, and of the person whose duty it was to pay the taxes thereon in and to such real estate, shall be transferred to, and absolutely vested in the state." The deed executed by the Judge of Probate to an individual purchaser, the statute provides, "shall convey to and vest in the grantee all the right, title, interest, andestate of the person whose duty it was to pay the taxes on suchreal estate, and the lien and claim of the State and county thereto, but it shall not convey the right, title, or interest of any reversioner or remainderman therein." Acts 1919, p. 360, § 266; see Acts 1935, p. 360, § 241, Code 1940, Tit. 51, § 276. (Italics supplied.)
That statute, not an amendment to the Code, but as a part of the General Revenue Act, was embodied in the Acts of 1935, as § 285, in the following language: "The right to redeem any real estate bid in for the State shall be forfeited unless such real estate is redeemed within the time prescribed by this Act, and if not redeemed within that time, all the right, title and interest of the owner of such real estate, and of the personwhose duty it was to pay the taxes thereon, in and to such realestate, shall be transferred to and absolutely vested in theState." Acts 1919, p. 372, § 306; Acts 1935, p. 376, § 285. (Italics supplied.)
We stop to inquire, did the Legislature in framing these statutes, one dealing with the character and quality of title conveyed to individual purchasers, and the other with the quality and character of the title passing to the state to lands bid in for the state by the Probate Judge, carelessly and without thought and purpose, use different language to express the same thought or was the language incorporated in the last quoted statute used deliberately with the intent to vest in the state a higher quality of title than that conferred on individual purchasers? We are not willing to impute to the Legislature either gross ignorance or gross negligence in the phrasing of this legislation. We must assume that they were familiar with the history of such legislation and its interpretation by this court.
In Dyer v. Branch Bank at Mobile, 14 Ala. 622, it was ruled that: "If one in possession of real property is liable to pay the taxes for that year, his interest *Page 505 only can be sold for the tax. By a purchase at a tax sale, the purchaser acquires the interest of the party, whose property is sold, and not the independent, or superior, or ultimate title of a third person."
That doctrine was repudiated in Jones v. Randle, 68 Ala. 258,267. The court speaking by Mr. Justice Stone, observed: "In Dyer v. Branch Bank at Mobile, 14 Ala. 622, is a statement by the court — probably a dictum — that a sale of lands assessed to a person, whose duty it was to pay the taxes for that year, the purchaser acquired only the interest of such person. We do not think this is a proper construction of our present law. On the contrary, we hold that whenever lands are properly sold and conveyed for unpaid taxes imposed on the lands themselves, the purchaser acquires the fee. — Doe v. Hearick, 14 Ind. 242; Bur. on Tax, § 122."
That opinion, the doctrine of which is now denounced by the appellee as revolutionary, was concurred in by Brickell, C. J., and Somerville, J., and was reaffirmed in Randle, Adm'r v. Boyd, 73 Ala. 282; Driggers v. Cassady, 71 Ala. 529, and was restated in Thorington v. City Council of Montgomery, 88 Ala. 548,553, 7 So. 363, 365, by the court speaking through Stone, Chief Justice, in the following language: "A sale of land for taxes, under our statutes as they then stood [1884], is a sale of the fee, and not of the tax-payer's interest only. It is thus that a failure to pay taxes by a termor or life-tenant, or by some one for him, may result in the loss of the entire estate. The tax assessed is a charge and lien on the land itself, as well as a legal liability resting on the tax-payer. Jones v. Randle, 68 Ala. 258; Parker v. Baxter, 2 Gray [Mass.] 185; Winter v. City Council, 79 Ala. 481."
It was noted in that opinion that the statute under which the sale was made in that case had been amended by Code of 1886, § 592.
Jones v. Randle, 68 Ala. 258, was decided at the December term, 1880, and the Legislature convening in 1884-1885, enacted the Revenue Law which was approved February 17, 1885. That act, as stated by Chief Justice Stone in Thorington v. City Council of Montgomery, 88 Ala. 548, 7 So. 363, took in to account the decision in Jones v. Randle, and changed the law. Section 113 of that act provided:
"Immediately after the expiration of the term of two years and six months from the date of the sale of any real property for taxes, the probate judge then in office shall make out a deed for each lot or parcel of real property sold toindividuals and remaining unredeemed, and deliver the same to the purchaser upon the return of the certificate of purchase and the payment of one dollar for the deed; but any number of parcels of real property bought by one person may be included in one deed, as may be desired by the purchaser. Which deed shall convey to the said purchaser all the right, title and interest of the person or persons whose duty it was to pay thetax on said land, and shall not convey the right, title or interest of any reversioner or remainderman in said land." Acts 1884-1885, p. 59, § 113. (Italics supplied.)
Said Act in § 125, provided: "The right of redemption shall be forfeited to all property bid in by the State and not redeemed within two years and six months from the date of sale of such property for taxes, and thenceforth all right, title and interest of the person whose duty it was to pay such taxes, in and to such real property, shall be considered as transferred to and vested absolutely in the State of Alabama." Acts 1884-1885, p. 64. (Italics supplied.)
Honorable John P. Tillman, a lawyer of profound learning and great ability was the Code Commissioner who prepared and supervised the publication of the Code of 1886, and was familiar with the decision of the Supreme Court in Jones v. Randle, supra, which he cited under § 592 of said Code. As brought forward in that Code, the section dealing with the character of title received by individual purchasers at tax sale, reads as follows:
"592. Deed to purchaser. — After the expiration of two years and six months from the date of the sale of any real estate for taxes, the judge of probate then in office must execute and deliver to each purchaser, or person to whom the certificate of purchase has been assigned, upon the return of the certificateand payment of a fee of one dollar to the judge of probate, a deed to the real estate purchased, as described in the certificate, including therein, if desired by the purchaser, any number of parcels or lots purchased by *Page 506 him at such sale; and such deed, when properly acknowledged and recorded, shall convey to, and vest in the grantee all the right, title, interest and estate of the former owner of suchreal estate, and of the person whose duty it was to pay the taxes on such real estate, and the lien and claim of the state and county thereto; but it shall not convey the right, title, or interest of any reversioner or remainderman therein." (Italics supplied.)
Jones v. Randle, 68 Ala. 258, was cited in the annotation with Lassitter v. Lee, 68 Ala. 287.
The italicized portion of said section shows conclusively that it dealt with individual purchasers, and the Code Commissioner in rewriting that section of the act intended that it should convey the title of all owners, except reversioners and remaindermen.
Section 125 of the act, as carried into the Code of 1886, reads: "617. Effect of failure to redeem lands bid in by state. — The right to redeem any real estate bid in for the state shall be forfeited, unless such real estate is redeemed within the time prescribed in this chapter; and if not redeemed within that time, all the right, title and interest of the owner ofsuch real estate, and of the person whose duty it was to pay the taxes thereon, in and to such real estate, shall betransferred to, and absolutely vested in the state." (No exceptions). (Italics supplied.)
Did Mr. Tillman realize the import of this language? Who can doubt it?
That is not all. Honorable W. L. Martin, another great lawyer, prepared the Code of 1896, and in bringing forward § 592 of the Code of 1886, he seemed to realize that the language of that section was somewhat inconsistent in including "All the right, title, interest and estate of the former owner," and yet excepting the rights of reversioners and remaindermen, and dropped the words "all the right, title,interest and estate of the former owner," leaving the deed only to "vest in the grantee all the right, title, interest andestate of the person whose duty it was to pay the taxes on suchreal estate, and the lien and claim of the state and countythereto"; and providing that such deed should not apply to the title, interest or right, of "any reversioner or remainderman." Code 1896, § 4074. (Italics supplied.)
But in bringing forward § 617 of the Code of 1886, it speaks in the exact language as it did in that Code. We stop to inquire, did Martin appreciate the effect and purpose of said section, which carried the title in black lettering "Effect offailure to redeem lands bid in by state"? Code 1896, § 4105.
The Legislature has persistently brought forward these two statutes in the several revenue acts since that date in the exact language of §§ 4074 and 4105, respectively of the Code of 1896, and as they appear in the current revenue law under which the lands in this case were sold.
The remarkable thing about this, the last mentioned statute, it doesn't seem to have been cited in any decided case and has been wholly overlooked. If ignoring a statute by the courts that has existed for fifty-seven years, though the Legislature has persisted in repeatedly rewriting it, has the effect to annul it, then said statute has lost its force. I can not subscribe to that doctrine.
So much in answer to appellee's statement that the opinion first above promulgated is revolutionary.
The question involved in this proceeding, and we limit our decision to this question, is whether or not the foreclosure of the state's superior lien for state and county taxes cut off the inchoate lien of the City of Russellville, which was not perfected until after such foreclosure. City of Huntsville v. Pulley, 187 Ala. 367, 65 So. 405; Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448.
As before stated, the validity and regularity of the tax sale proceeding here involved are not questioned, and the conclusion is inescapable that the effect of the sale was to foreclose the state's paramount lien on the land, and cut off the inchoate lien of the City of Russellville, and after the expiration of the time for redemption, the title becomes, as to it, indefeasible in the state, and that title was conveyed to the complainant. Griffin Lumber Co. v. Neill et al., 240 Ala. 573,200 So. 415.
"As a general rule of statutory construction, without any express legislative declaration, general words in a statute do not apply to the state, nor affect its rights, unless an intention to the contrary appears." State ex rel. Smith, Atty. Gen. v. McCord, 203 Ala. 347, 83 So. 71. *Page 507
There is no express provision making the provisos of § 2202 of the Code of 1923, Code 1940, Tit. 37, § 543, applicable to the state, nor is there a necessary implication that it was the intent of the lawmaker to make the state's right to collect its revenue subordinate to local improvement liens raised by § 2199 of the Code, Code 1940, Tit. 37, § 538.
The prevailing opinion on rehearing ignores the provision of the statute fixing the limitation for redemption from tax sale, ignores the provision of § 285 of the Revenue Act cutting off such right and defining the character of title acquired by the state, and subordinates the state's rights to the rights of cities and towns. I, therefore, respectfully dissent on the point that § 2202, applies to the state and that the City of Russellville has the right to redeem after the expiration of the three years fixed by the statute.
FOSTER, J., concurs in the foregoing opinion.