Drennen v. White

• Decision Date: 04 February 1915
• Docket Number: 851
• Citation: 68 So. 41,191 Ala. 274
• Parties: DRENNEN et al. v. WHITE.
• Court: Alabama Supreme Court

68 So. 41

191 Ala. 274

DRENNEN et al. v. WHITE.

No. 851

Supreme Court of Alabama

February 4, 1915

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by H.K. White against W.M. Drennen and others. Decree for complainant, and respondents appeal. Reversed and remanded.

The bill contained the statutory averments, and prays for the quieting of the title. Respondent Drennen answered, admitting the allegations of the first paragraph, but denies the allegations of the second paragraph, setting up that he is in the peaceable possession of the property, and that his title was paramount to complainant's or the other respondents named in the bill, and sets forth his title by deed from Wild Smith and wife to Garrett, executed February 3, 1887, and filed and recorded in the office of the judge of probate Garrett to Mary H. Dearborn, which was filed and recorded and from Mary H. Dearborn and husband to respondent, on April 18, 1901, and that since said time respondent had not sold same, and still claims to be and is now the owner of said property. White claims through a conveyance made to satisfy certain assessments for street improvements by the proper authorities of the city of Birmingham, while the property was the property of W.M. Jernigan, as fully appears from the opinion.

J.L Drennen, of Birmingham, for appellants.

W.S. Burrow, of Birmingham, for appellee.

McCLELLAN J.

The original bill was filed by White against the appellant Drennen and others. It is a statutory bill seeking to quiet title. Code, § 5443 et seq. By answers and cross-bills and answers thereto and testimony taken--all likewise seeking the quieting of the other titles to the realty described in the original bill-the questions to be considered were raised below, and are now presented for review here upon errors alone assigned by the appellant Drennen. The first insistence is that the cross-bill of Drennen's corespondent Clark was deficient in its asserted failure to allege sufficient facts to show that he (Clark) was the owner of the property. The source and character of cross-complainant's asserted right or title--the facts from which he deduces his asserted right or title--were not necessary to be averred in order for his cross-bill to be sufficient. Adler v. Sullivan, 115 Ala. 582, 584, 22 So. 87.

The next insistence is that the sale of the property to enforce the payment and discharge of the lien fixed upon the lot under proceedings assessing it for and to the amount of benefits accruing to the property in consequence of street improvements was void, for that the issuance of the executions was not preceded by a demand by the treasurer on the delinquent appellant Drennen, made ten days before the issuance of the executions. Section 708 of the City Code of Birmingham authorizes and requires the treasurer to sell the property for the satisfaction of unpaid assessments for street improvements. Section 709 provides:

"It shall be the duty of the city treasurer as soon as any of the assessments mentioned in the preceding section are delinquent, as provided in said section, to make demand in person or by deputy on the owner of the property, against which said assessment has been made, and whenever he or his deputy is unable to find said owner he or his deputy may leave a written demand at the residence of such owner or his place of business in the city, or where such owner is a nonresident of the city, or where such demand may be made by letter addressed and mailed to such owner's last known residence or post office, and if said assessment is not paid within ten days after said demand is made it shall be the duty of the city treasurer to call upon the city clerk for execution, and the city clerk shall issue the same as hereinafter provided. And whenever any assessments are paid which are delinquent, a delinquent fee of fifty cents shall be paid to the city treasurer by the party paying the same, whether said demand has been made by the city treasurer or not."

Section 710, so far as presently important, reads:

"Upon the city treasurer calling upon the city clerk for executions as hereinbefore provided it shall be the duty of the city clerk to issue an execution against the property assessed for the amount of said assessment, and interest returnable to a date to be mentioned therein, not more than ninety days from its issuance."

In Harton v. Enslen, 182 Ala. 413, 62 So. 697, this court said:

"Unless relieved thereof by express statute, *** the burden is on him who traces his right to or interest in lands through tax proceedings to show affirmatively that the requirements of law with respect thereto were observed in the processes essential for the transmission of title."

That doctrine was set down in the following, among other, decisions of this court: Pollok v. Milam, 67 So. 381; McKinnon v. Mixon, 128 Ala. 612, 29 So. 690; Oliver v. Robinson, 58 Ala. 46; Smith v. Cox, 115 Ala. 503, 22 So. 78; Reddick v. Long, 124 Ala. 260, 265, 27 So. 402; Johnson v. Harper, 107 Ala. 706, 708, 18 So. 198. It has also been repeatedly ruled that, as said in Johnson v. Harper, supra:

"In the sale of land for taxes, great strictness is required. To divest an individual of his property against his consent, every substantial requirement of the law must be complied with." Dane v. Glennon, 72 Ala. 160, 163; Oliver v. Robinson, supra; Reddick v. Long, supra; Clarke v. Rowan, 53 Ala. 400;

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