On Rehearing.
Complainant argues two propositions which are concisely stated in the following extract from his brief:
" * * * We say, therefore, that under the decisions of this Court since Doe ex dem Evers vs. Matthews, 192 Ala. 181, 187-8 [68 So. 182], the sale by the State Land Commissioner as provided by statute, was a sale for the 'payment of taxes' and no other sale had to be shown in order to make the short statute applicable. We say further that if other evidence of a sale for payment of taxes was necessary, such evidence clearly appeared in the record in the testimony of Appellee, Mrs. Macon, and her husband, and was admitted in her Answer and cross-bill."
In the Evers case, supra, the parties stipulated as follows:
*Page 74"* * * on June 19, 1901, the land was sold by the tax collector, and bought in by the state of Alabama, for an amount equal to the taxes, fees, and costs — these latter facts being admitted and limited to the sole purpose to show that there was a sale of the property to pay the taxes due thereon, the date of said sale, to enable defendant to claim the statute of limitations of three years and the benefits conferred by section 2308, Code 1907, and as an evidence of the bona fides of the claim of the defendants. Said decree is not offered as a muniment of title, and the regularity or legal sufficiency of said decree and said sale to pass title is not admitted. * * *" (Emphasis supplied.) 192 Ala. 181, 182, 183, 68 So. 182, 183.
The opinion states in pertinent part:
"This property was sold for taxes due from appellant, the then owner, under a decree of the probate court in the summer of 1901, and bid in by the state. * * *" 192 Ala. 181, 184, 68 So. 182.
The parties in the Evers case stipulated that the sale had been made by the tax collector. One of the limited purposes of the stipulation was to show that such a sale had been made. It appears that the parties did not regard the deed from the auditor, which was also admitted for the same limited purposes, as being sufficient proof that the land had been sold for payment of taxes. We are of opinion that the sale for payment of taxes referred to in Title 51, § 295, is the sale by the tax collector and not a subsequent sale by the Land Commissioner.
We are further of opinion that in the case at bar, the averments of respondent's answer and the testimony of respondent and her husband are not sufficient to admit or prove that the land has been sold for the payment of taxes at a sale through which the complainant claims. The averment is that complainant is "reputed" to claim under an allegedly void deed which resulted from an allegedly void sale, but is not an averment that complainant does in fact so claim.
Neither do we think that respondent's testimony that she supposes, or that of her husband that he did not know in 1921 but knows now, that the land was sold in 1921 suffices to show that complainant claims under such a sale. The testimony does not connect complainant with such a sale, and, as we have already indicated, we do not think the recitals in the deed from the Land Commissioner to complainant are evidence of such connection.
Opinion extended.
Application overruled.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.