This suit was brought by Robert A. Tunstall against Louis Y. Clark. In the complaint, the plaintiff claimed damages of the defendant because of an alleged breach of a covenant of warranty contained in a deed made by the defendant to the plaintiff on July 21, 1901. The deed conveyed “lot 4 in block 1-D, according to the plan and survey of the Walker Land Company’s survey of East Woodlawn in Jefferson county, Alabama.”
We copy the following from the complaint as significant: “And plaintiff avers that, as a part of said deed of conveyance, the said defendant covenanted and warranted that said lot was free from any and all in
1. The “damages complained of,” says the above complaint, are the damages which the plaintiff suffered because he brought a suit against R. L. Leatherwood for the lot described in the complaint and lost the suit. Leather-wood is not shown in the complaint to have had any connection whatever with the alleged tax title of Julia A. Davis; nor is it alleged that he acquired possession of the land through her. The plaintiff testified' that, when the defendant executed the above conveyance to him, the lot was vacant' and was in the actual possession of no one, and that this condition continued up to some time in the year 1908 or 1909, “when plaintiff discovered that one R. L. Leatherwood had taken possession of said lot, claiming it under a tax sale, and had built a shack on same and fenced same in, and that plaintiff had paid taxes on said lot from the’ fall of 1901; said taxes amounting to $10.80.”
When Leatehnvood made the alleged purchase at a tax sale, or under what alleged tax sale Leatherwood
A voluntary nonsuit is res judicata of nothing. It finally disposes of a case; but it finally settles no issue in a case. The plaintiff took a voluntary nonsuit in his action of ejectment against LeatherAvood, and he utterly failed to sustain, by his evidence, the allegations of his complaint in so far as the Leatherwood section of it is concerned.
It may be stated, as a general proposition, that when a grantor conveys land to his grantee by a deed containing covenants of Avarranty as to title and as to adverse claims, and the grantee becomes involved in litigation Avith an adverse claimant claiming by title or claim superior or adverse to that of such grantor, then if such grantee gives notice to such grantor of such litigation, and calls upon him to appear in the cause and make good his title, such grantor becomes, in fact, a party of such litigation. If the grantor fails to appear, then if the adverse claim is actually litigated in good faith by the grantee, and a final judgment on the merits is rendered against such grantee, the judgment so rendered is binding upon the grantor, and is conclusive evidence against him in a suit brought against him by his grantee on the covenants of warranty in the deed. There must, hoAvever, be a judgment on the merits, as a voluntary nonsuit settles no issue. The plaintiff Avho
2. The complaint, as we have already pointed out, claims damages because of the alleged purchase of Leatherwood and the subsequent alleged adverse termination of the suit in ejectment against Leatherwood. No damages are claimed in the complaint on account of the alleged purchase at a tax sale of Julia A. Davis. Had the plaintiff claimed damages on this latter account he could not have prevailed in the present suit for two substantial reasons: First, he utterly failed to show that Julia A. Davis was in possession of the land, or that she was holding it or claiming it adversely to the plaintiff; second, he failed to show, by legal and proper evidence, that the land was ever sold for taxes.
There can be no such thing as a sale of lands for taxes, unless there is an assessment of the same for taxes, a proper and legal proceeding looking to their sale after default has been made in the payment of the taxes, a proper decree of sale of the property, and a sale regularly had. When one claims through a tax sale, the law casts upon him the burden of showing that the above conditions were complied with. The law provides the machinery by which such a sale can be obtained, and also the appropriate records whereby the various steps necessary to effect such a sale can be shown.
The book which was introduced in evidence by the plaintiff was not effectual to show that the lands had (¡ver been assessed for taxes, or that a sale to satisfy a valid lien in favor of the state for taxes was ever had. —Driggers v. Cassady, 71 Ala. 529. The plaintiff in this case, taking it in either of its aspects, failed in his
Reversed and remanded.