raised the tax assessment on its property theretofore made by the tax assessor of said county, and that the cause was set down for hearing at the next regular session of said board, on July 10, 1896. This citation was served upon the association, and, by its attorney, it appeared before the board the day it was cited to appear, and made a motion to dismiss the cause. The grounds of this motion and the other proceedings which were had in the case are sufficiently stated in the opinion.

Smyer & Smyer, for appellant. Wm. C. Fitts, Atty. Gen., for the State.

DOWDELL, J. By section 5 of the "Act to amend the revenue laws of Alabama," approved February 18, 1895 (Acts 1894-95, p. 1192), a county board of equalization of taxes in each county is created, in the manner therein specified. Section 31 of said act provides that "said board will convene at the court house of the county on the first Monday in May, and shall rigidly examine each assessment list, and compare all such lists carefully with the book of assessment, and institute inquiry as to the correctness of any assessment of real or personal property, or subject of taxation; and if upon such inquiry any assessment, whether made by the taxpayer, his agent, or by the assessor, is supposed not to be full and complete, or the property assessed at less or more than its actual value, or that property has been omitted that should have been assessed, the said board of equalization shall enter the same on a docket to be kept for that purpose by said board in the name of the state of Alabama as plaintiff and the taxpayer as defendant, and shall issue a notice and copy thereof, addressed to the taxpayer, stating the substance of the supposed error, improper assessment, undervaluation or overvaluation, and citing such taxpayer to appear before said of equalization on the first Monday in June, to show cause why such error, omission, or undervaluation should not be corrected, and in what respect. A copy of said notice shall be personally served on the said taxpayer, or if he cannot be found, by leaving the same at his residence, by the tax assessor or any person whom he may deputize in writing for that purpose, and the date when and how the same was so served shall be indorsed on the original, which original shall be returned to the secretary or any member of said board: provided, that if the taxpayer is a nonresident of the county and his residence is known, then the secretary of said board shall mail a copy of said notice, postage paid, to said taxpayer, indorsing on the original when the copy was mailed and to what address: provided, that in counties paying less than twelve thousand dollars property tax, the said board of equalization at this meeting of the board shall not sit for a longer term than four days in each year. In

counties paying more than twelve thousand dollars and less than twenty thousand dollars property tax, said board shall not sit for a longer term than six days in each year; and in counties paying twenty thousand dollars property tax and over, shall not sit for a longer term than ten days." Section 32 provides as follows: "That the said county board of equalization shall convene a second time at the court house on the first Monday in June, and may remain in session for such length of time as may be necessary to dispose of the cases before it, and for the hearing of such cases as may have been docketed; and the cases shall be called in such order for hearing and disposition as the said board or a majority thereof may see proper. For the purposes of such inquiry or hearing, the said board may subpoena such witnesses, and introduce such oral, documentary, or record evidence as may be necessary to a full understanding of the question, including the abstract duly certified, provided by section 28 of this act, made by the probate judge of any county in the state of Alabama, and the taxpayer may upon application, at any time before the day on which his case is set for hearing, have subpoenas issued for witnesses in his behalf, and may also introduce documentary or record evidence pertaining to the matter under investigation, and the said board of equalization shall have authority to set cases for hearing on such days as it may see proper, and give notice to the defendant and subpoena witnesses for certain days, and may for good cause shown, continue a hearing over to a day to be fixed by said board, but neither the state nor the county shall be required to pay the per diem of a defendant's witness, and the county shall only pay the per diem of two witnesses in any one case, and the mileage shall not exceed four cents per mile each way and one dollar per diem for each witness to be paid by the county treasurer on the order of the chairman of the board. The tax collector shall be present in court at such hearing to represent the interest of the state." By section 33 it is provided that, if the taxpayer appears in person or by attorney, or has had five days' notice, the said board shall proceed to hear the matter, and shall raise or reduce the valuation, or enter the omission, or correct the error, or add such items of taxation, and fix the value thereof, as may have escaped assessment, and fix all values at what the evidence shows to have been the actual cash value of the property on the 1st day of October preceding. It prescribes certain evidences which the board may consider in hearing the case, and provides that, if the matter be contested, the board shall, upon the close of the hearing, render its decision. within 24 hours, unless the taxpayer consents to a longer time, which decision must be entered upon the docket and signed by the chairman of the board. From the judgment and decision of the board, any member of the

board or the defendant may appeal in 10 days to the next term of the circuit or city court, when the same shall be tried anew.

In the present case, the board did not, at its May term, take action in the matter of equal izing the appellant's taxes as returned by the assessor, but, so far as appellant's motion to dismiss or pleas show to the contrary, it did, during its regular sitting beginning on the first Monday in June, to wit, on the 2d day of July, take such action, and did enter upon the docket the supposed value of appellant's taxable property, and issue and have served upon it a citation to appear and contest, on the 10th day of July. The appellant appeared before the board on that day (the citation having been served on the 3d), and moved the board to dismiss the proceeding on the ground that its said action in reference to the valuation of its property and issuing the citation was not had at the May term, and not until July 2d aforesaid. The motion being overruled by the board, appellant interposed the same matter by way of pleas. These pleas being disallowed, the board affirmed its previous action raising the taxable values, and appellant appealed to the circuit court. The same motions and pleas were filed in the circuit court, and there also disallowed; the motion to dismiss being overruled, and demurrers to the pleas being sustained. Appellant declining to plead over, the court rendered judgment affirming the decision of the board, and that appellant pay state and county taxes for the year 1896 on $69,250, that being the sum to which the taxable values had been raised by the board, and rendered judgment for costs against appellant and its sureties. From this judgment the present appeal is taken, and the principal question presented for our decision is whether or not it was essential to the lawful exercise of the jurisdiction which the act confers upon the board that the preliminary ex parte action in reference to raising the assessment and issuing the citation should have been had at the May term, in strict conformity to the statute.

The board is a judicial tribunal, created by the statute, of special, limited jurisdiction, and its judicial action must be supported by substantial compliance with all those requirements which the statute, in all its parts, fairly interpreted, provides as essential to the exercise of its jurisdiction, which compliance must affirmatively appear. It is not questioned, in this case, that all things were done which the statute requires, except that the prescribed time of performing the preliminary requirements, to which we have referred, was not observed. Upon reading the provisions of the act, hereinabove set forth, it is seen that the Judicial functions of the board are those which are prescribed by sections 32 and 33 of the act. It will be observed that the acts required by section 31 to be performed are ministerial only. The incorrectness of an assessment which the board is by that section required to enter upon a docket, and give the taxpayer

notice of by citation, is not one which the board has, by judicial processes, actually found to exist, but it is merely a supposed error, improper assessment, or under or over valuation, suggested to the board by such inquiry as it may choose to make, or information it may choose to act upon. The entry to be made upon the docket of the supposed valuation is a sort of pleading, so to speak, having no element of a judicial determination. So that we take it to be clear that these functions are purely ministerial, and their obvious design is to provide a practical and orderly system of bringing before the board, in its judicial capacity, for its judicial action, all such complaints in matters of assessments as might need judicial supervision. Therefore we find the board sits as a court, and exercises its jurisdiction as such, only when, in its June sitting, performing those duties required by sections 32 and 33 of the act to be then performed.

It is a general rule, founded in most obvious reason, that where the statute fixes a time or place for a court to sit and exercise its jurisdiction, it can lawfully do so at no other time or place. Garlick v. Dunn, 42 Ala. 404; Davis v. State, 46 Ala. 80. But the rule as to time is not universally true in respect of the performance of ministerial acts required to be performed by officers. The general rule as to such acts is to the contrary. We take a correct statement of it from the brief of Judge R. W. Walker, as counsel, in the case of Commissioners' Court v. Rather, 48 Ala. 440, as follows: "A statute specifying a time within which a public officer is to perform an official act affecting the rights of others is directory merely, as to the time within which the act is to be done, unless, from the nature of the act or the phraseology of the statute, the designation of the time must be considered a limitation on the power of the officer. Walker v. Chapman, 22 Ala. 126; People v. Allen, 6 Wend. 486-488; Pond v. Negus, 3 Mass. 230, 232; Fish v. Wright, 5 Cow. 269; Stickney v. Huggins, 10 Ala. 107, 108; Savage v. Walshe, 26 Ala. 619; Dwar. St. pp. 222, 223; U. S. Trust Co. v. U. S. Fire Ins. Co., 18 N. Y. 200. By this it is not meant that a duty does not rest upon the officer to act within the time, a duty which he may be compelled to perform, but simply that his power to act does not expire with the time. Stickney v. Huggins, 10 Ala. 106, 108; Webster v. French, 12 Ill. 302. When a statute directs an officer to do a thing in a certain time, without any negative words restraining him from doing it afterwards, the naming of the time will not be construed as a limitation of his authority. Dwar. St. p. 223; Ex parte Heath, 3 Hill, 42; People v. Holley, 12 Wend, 481; Mead v. Gale, 2 Denio, 232; Barnes v. Badger, 41 Barb. 98, 99; People v. Cook, 14 Barb. 290; Id., 8 N. Y. 67; Miller v. Finkle, 1 Parker, Cr. R. 374; State v. Baltimore County Com'rs, 29 Md. 516."

The authorities there cited from our own

court are clear in support of the principles stated. In the case of Stickney v. Huggins, 10 Ala. 106, there was a statute which provided that, "if any person authorized by law to collect the taxes in any of the counties of this state shall fail to collect and pay the same to the county treasurer within the time prescribed by law, the judge of the county court, if of his own knowledge, or on complaint of the treasurer, shall hold a special court within twenty days thereafter to try such delinquent collector; and if it appears that he has so failed to collect or pay over such taxes said court shall enter judgment in favor of the treasurer," etc. (Italics ours.) Construing this statute, Chief Justice Collier, for the court, said: "Although this section addresses itself, in mandatory terms, to the judge of the county court, yet it cannot be understood that, in requiring him to act within twenty days from the time the default is developed, his right to act is limited to that period. Time was not prescribed for the benefit of the collector, but rather to quicken the diligence of the judge, so that justice might be promptly administered and the greater certainty of collections insured. According to all analogies, in directing the proceedings to be instituted within a definite time, the act must be considered as directory merely. It is the duty of the judge to yield a ready obedience to its directions, but, if he fails to do this, his authority to act under it is not gone." For a full statement of simiiar import to the foregoing, see Endlich, Interp. St. § 436.

Now, the design of the statutory provisions we are construing, in this case, is plain. It was to secure an equalization of taxes. Methods were provided to render the system practical and easy. The essence of the proceeding was that the board should have before it a docket of the matters to be investigated, showing the supposed errors which might require correction; that it should sit, at the time specified, and judicially hear and determine those matters, and enter its decisions

upon the docket. The preliminary requirements which ought to have been performed at the May term were merely to get the matters for investigation upon the docket,-to get the cases in court, so to speak, and to bring the taxpayer into court to represent his interests. It was not essentially material to the taxpayer when the docket of cases was made up, so that he received the statutory five days' notice that he would be required to appear and contest during the time fixed by the statute for that purpose. The citation was only for the purpose of bringing the taxpayer before the board, to give it jurisdiction of his person,and, under all the authorities, it may be waived. It does not pertain to jurisdiction of the subject-matter. Appearance, without the issuance of a citation at all, would authorize the board to proceed against him. Our conclusion is that the proceeding was not without the jurisdiction of the board, either of the subject-matter or person, and that the circuit

court was right in refusing to dismiss it, and in sustaining the demurrers to the pleas.

It is objected that the circuit court ought to have instituted a trial de novo, and ascertained the value of the appellant's taxable property, instead of rendering the judgment it did, upon appellant's declining to plead over after the demurrers to its plea were sustained. We think this objection is well taken. So far as the record shows, upon the appellant's declining to plead over, after demurrer sustained to the pleas, the circuit court thereupon, without further trial and without any evidence, rendered judgment against the defendant for an amount based upon the raised valuation put by the board of equalization, and from which the defendant had appealed to the circuit court. On this appeal the statute provides that the case shall be tried anew. The judgment rendered by the board could not be looked to by the circuit court for any purpose. This court said, in the case of Sullivan v. State, 110 Ala. 95, 20 South. 452: "The real issue on the trial on appeal being, not that the assessment made by the board was a fair, just, and legal assessment, but that the assessment made by the tax assessor was incorrect in certain specified particulars." It was upon the state, by competent and legal evidence, to show the incorrectness of the tax assessor's assessment, and what should have been a proper assessment and valuation, and, until this was done, the circuit court could not render judgment against the defendant. The judgment of the circuit court must be reversed and cause remanded.

The foregoing opinion, in the main, was prepared by HEAD, J.

(122 Ala. 194)

BARRON et al. v. BARRON et al. (Supreme Court of Alabama. Jan. 17, 1899.) EJECTMENT-ADVERSE POSSESSION-LIMITATION

MORTGAGES-DESCRIPTION-ASSIGNMENT-VALID

ITY-EVIDENCE-INSTRUCTIONS - EXECUTORS

BILL OF EXCEPTIONS-FILING-TRIAL-PLEA IN ABATEMENT.

1. Where a motion for a new trial is made at a regular term, but not disposed of until at an adjourned term, the court may then fix the time for filing the bill of exceptions, and a bill filed within the time so fixed cannot be assailed.

2. Where plaintiff in ejectment claimed under a mortgage executed to B., and acquired his title prior to an ejectment suit against B., in which costs were adjudged against him, defendant's plea in abatement that such costs had not been paid prior to the commencement of plaintiff's suit was properly overruled.

3. A certificate of redemption of land from a tax sale, reciting the assessment, sale, etc., and purporting to vest title in the purchaser as one authorized to redeem, is admissible in ejectment as color of title, under plaintiff's claim of adverse possession, to define the boundaries of the purchaser's actual possession, but not as a muniment of title.

4. Where plaintiff claimed title by adverse possession, it was not objectionable to ask a witness if he did not buy a portion of the land from plaintiff's grantor, since such question is

relevant to the issue of the extent of plaintiff's claim.

5. An objection to evidence is properly overruled where the ground on which it is based is not stated.

6. Where defendant in ejectment showed that the adverse possession of plaintiff's grantor was interrupted by an entry by others, plaintiff may introduce in rebuttal the records of unlawful detainer suits brought against such parties, showing the suits to have been prosecuted to a successful termination.

7. On the issue of plaintiff's adverse possession in ejectment, he may introduce the record of a former ejectment suit against his remote grantor, in which a voluntary nonsuit was tak

9. But the land intended to be mortgaged may be identified by parol evidence, and the deficiency in the mortgage thereby supplied.

10. Where defendant in ejectment objected to the introduction of a mortgage because of a defective description of the land, but did not specify the defect claimed, and the bill of exceptions recited that plaintiff offered a writing purporting to be a mortgage of the lands in controversy, it will be presumed on appeal that it was understood by the parties that the land mortgaged was the same as that in controversy, in support of the court's ruling admitting the mortgage.

11. Where a landlord prosecutes successfully an unlawful detainer suit against his tenant, on ascertaining that he was claiming the land adversely, the tenant's possession does not break the continuity of the landlord's possession, which was also adverse.

12. Where the uncontradicted evidence showed that a part of the land claimed by defendant in ejectment was claimed under a sheriff's deed by virtue of a judicial sale against plaintiff's grantor, made subsequent to a mortgage by him, under which plaintiff claimed title, an instruction that, if the jury believed all of the evidence, their verdict must be for plaintiff for the part so claimed, was proper.

13. Where a purchaser of land went into immediate possession, claiming title in fee, his adverse possession begins to run from the date of purchase, though he did not then receive a deed from his grantor.

14. Where plaintiff in ejectment claimed title by adverse possession of himself and his grantors, it is immaterial when such possession commenced, so long as they together held adversely for more than 10 years before suit brought.

15. An actual claim of title to land is sufficient to support adverse possession, whether claimants think their title valid or not.

16. Requested instructions not warranted by the evidence are properly refused.

17. An instruction in ejectment that if the legal title to land was in defendant, in common with others, and she entered thereon, and continued claiming possession, under such title in herself, and not as the wife of B., the jury must find for her and those claiming under the other tenants in common, is misleading and erroneous, since adverse possession must be established, not only by a claim of possession, but by actual occupation.

18. An indorsement on a mortgage by the executor of a deceased mortgagee, transferring the mortgage and debt without recourse, does not operate to convey the title to the land mortgaged.

19. Where the evidence showed that payment to a mortgagee was made in pursuance of a contract to purchase the mortgage, and not in payment of the debt, instructions based on

the theory that such payment operated to extinguish the debt were properly refused.

Appeal from circuit court, St. Clair county; George E. Brewer, Judge.

Ejectment by John T. Barron and others against Rebecca Barron and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This was a common-law action of ejectment. There were three demises in the complaint. One was laid in John T. Barron; another, in J. W. Moore, as the executor of W. G. Moore, deceased; and the other was laid in the heirs at law of W. G. Moore, deceased. There were several parties defendant, but the principal defendants were Rebecca Barron, Mary McFarland, M. M. Smith, and N. A. Hood; the other defendants being privies of said Rebecca Barron and Mary McFarland, and holding under and through them. The defendants disclaimed title to an undivided two-thirds interest in the lands sued for, and, as to the remaining undivided one-third, they pleaded not guilty. The substance of the plea in abatement, which was stricken from the file on motion of the plaintiff, is stated in the opinion. On the trial of the cause the defendants introduced evidence tending to establish their title to the property, as follows: One J. S. Clements died in 1870, seised and possessed of the lands in controversy. He left, surviving him, a widow, who, together with his children, continued to reside upon the property. In 1871 said lands were assessed for taxes, as the lands of J. S. Clements; and, default being made in the payment of the taxes for said year, the lands were sold therefor. Subsequently, Mrs. Mary Clements, the widow of said J. S. Clements, redeemed said lands by paying double the amount paid at said sale, and the costs, etc., as required by the statute. In September, 1873, the probate judge of the county of St. Clair, wherein the lands were situate, gave to Mrs. Mary Clements a certificate of redemption of said lands. She thereupon went into possession, and set up an individual claim to said lands. Subsequently, during the year 1873, she sold said lands to Jesse H. Barron, but did not execute to him a deed until the year 1879. Immediately upon the purchase of said lands from Mary Clements, Jesse H. Barron went into the possession thereof, and exercised acts of ownership, claiming the lands as his own. On January 14, 1884, Jesse H. Barron and his wife executed a mortgage upon the lands in controversy to W. G. Moore, to secure the payment of an indebtedness due from him to Moore. In December, 1884, Jesse H. Barron brought an action of unlawful detainer against B. B. Barron, the husband of Rebecca Barron, and Benjamin F. Clements, who was the father of the defendant Mary McFarland. B. B. Barron had gone into possession of a part of the lands as the tenant of Jesse H. Barron, and, while so in possession, he and his wife, Rebecca

Barron, set up a claim to said lands. Benjamin F. Clements was in possession of a part of the land, claiming it as his own. In each of the actions of unlawful detainer the plaintiff recovered judgment against the defendants, respectively, and they were ousted under a writ of restitution issued upon said judgment. The mortgage from Jesse H. Barron to W. G. Moore was by the executor of said W. G. Moore (who had subsequently died) transferred and assigned to the plaintiff John T. Barron, the transfer being evidenced by the following indorsement upon said mortgage: "For value received, and without recourse, I hereby assign and transfer this mortgage and the debt it secures to John T. Barron." This transfer was signed, "J. W. Moore, Executor of W. G. Moore, Deceased." Default having been made in the payment of the mortgage debt, the mortgage was foreclosed, under the power of sale; and John T. Barron became the purchaser of the lands in controversy. This sale was made January 16, 1893. The evidence for the defendants tended to show that the lands in controversy belonged to the first wife of J. S. Clements, deceased, and that they were the heirs at law of J. S. Clements' first wife. It was further shown by the defendants that, in 1887, Rebecca Barron and B. F. Clements, whose only heir is the defendant Mary McFarland, brought an action of ejectment against Jesse H. Barron for the lands in controversy, and that they recovered judgment for an undivided two-thirds interest in said lands, with the costs of suit; that, the costs of said suit not having been paid, execution was issued on the judgment, and levied upon the undivided one-third interest adjudged in said suit to have belonged to Jesse H. Rarron; that, under this execution, the undivided one-third interest was sold, and the defendant N. A. Hood became the purchaser of said undivided one-third interest. This judgment in the ejectment suit brought by Rebecca Barron and B. F. Clements against Jesse H. Barron was recovered on October 11, 1892, and the sale was made to N. A. Hood on December 12, 1892. It was shown that Rebecca Barron and Mary McFarland, as heir at law of Benjamin F. Clements, in December, 1892, executed a deed to the defendant M. M. Smith, conveying to him an undivided one-third interest in the lands sued for. Upon the plaintiffs offering to introduce in evidence the certificate of redemption of the lands in question, given by the probate judge to Mary Clements in 1873, the defendants objected, upon the grounds that said written instrument was illegal, irrelevant, and incompetent evidence, and that the writing itself showed that it was neither title nor color of title to the lands sued for. This objection was overruled; the certificate was allowed to be introduced in evidence; and to this ruling the defendants duly and separately excepted. One John Thompson, as a witness for the plaintiff, testified that he knew the lands in

controversy, and had known them since 1870; that J. S. Clements owned said lands; and that, after his death, his widow and children lived on them; and that, after 1873, Jesse H. Barron claimed title and ownership to said lands. Plaintiff then asked said witness if he did not buy a portion of said lands from Jesse H. Barron in the year 1879. The defendants objected to this question, upon the ground that it called for illegal, irrelevant, and incompetent evidence, the bill of exceptions stating that "no question was raised, because the deed was not produced." The court overruled the objection, and the defendants duly and separately excepted. The witness answered that he did not buy any of the lands in controversy, but that he bought from said Jesse H. Barron about two acres of the original Clements tract. Upon the examination of one Williams as a witness, he testified upon his cross-examination that he took a mortgage from Jesse H. Barron on a portion of said land, which he had acquired from Mary Clements, the widow of J. S. Clements, to secure a loan made by him (Williams) to said J. H. Barron. Defendants objected to this testimony, and moved to exclude it, on the ground that it was illegal, irrelevant, and incompetent. The court overruled each of these objections, and the defendants duly and separately excepted. The plaintiff offered in evidence the records of an action of ejectment brought by B. F. Clements and Rebecca Barron against Mary Clements, the widow of J. S. Clements, on September 4, 1872, which suit was terminated on October 12, 1874, by the plaintiffs therein voluntarily taking a nonsuit. The defendants in the present suit objected to the introduction of the record of said former ejectment suit, upon the grounds that (1) it was illegal, incompetent, and irrelevant evidence; (2) that said records showed on their faces that the parties to said ejectment suit were other and different parties to the parties to this suit; (3) that the uncontroverted evidence in this case shows that Mary Clements was not in possession of said lands on October 12, 1874, when the nonsuit was taken. The court overruled this objection, allowed said evidence to be introduced, and to this ruling the defendants separately excepted. Upon the plaintiff introducing in evidence the mortgage executed by J. H. Barron to W. G. Moore, the defendants objected, and moved to exclude said mortgage, upon the grounds (1) that it was illegal, irelevant, and incompetent evidrence; (2) because the evidence shows that said mortgage debt was fully paid. The court overruled this objection and motion, and to these rulings the defendants duly and separately excepted. Upon the plaintiff offering to introduce in evidence the records of the suits of forcible entry and unlawful detainer, instituted by J. H. Barron on December 4, 1884, against B. B. Barron and B. F. Clements, the defendants objected to the introduction of said records in evidence, upon