Tensaw Land & Timber Co. v. Rivers

• Decision Date: 21 October 1943
• Docket Number: 1 Div. 193.
• Citation: 15 So.2d 411,244 Ala. 657
• Court: Alabama Supreme Court
• Parties: TENSAW LAND & TIMBER CO. v. RIVERS et al.

15 So.2d 411

244 Ala. 657

TENSAW LAND & TIMBER CO. v. RIVERS et al.

1 Div. 193.

Supreme Court of Alabama

October 21, 1943

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

As originally filed the bill was against the administratrix, in the form of a bill to quiet title, for the purpose of redeeming the lands therein described, under Code 1923, § 3108, and alleging that the administratrix's claim was founded on tax deeds from the State to Joel W. Rivers, based upon a sale to the State under assessment for taxes to Everett and Boykin (a partnership). Complainant alleged title by mesne conveyances from Everett and Boykin.

The respondent administratrix suffered a decree pro confesso whereupon final decree was entered granting to complainant the relief prayed, fixing the amount required to be paid to reimburse the estate of Joel W. Rivers, and adjudging that upon payment of such amount said deeds from the State to Rivers should be void as cloud upon complainant's title.

Complainant paid said amount into court, but shortly thereafter filed its supplemental bill against the administratrix and Monte L. Moorer. It is alleged that, pending the original proceeding but before final decree, Moorer filed for record certain deeds from heirs and next of kin of Joel W. Rivers covering land included in the tract claimed by complainant, and that said Moorer claimed or was reputed to claim some right, title, or interest in, or to hold some lien or incumbrance upon said lands by virtue of said purchase by Rivers from the State. The administratrix made no defense to the supplemental bill, but Moorer made answer.

The trial court rendered a final decree denying complainant's right to redeem, and this appeal follows.

Gaillard & Gaillard, of Mobile, for appellant.

Wm. G. Caffey, of Mobile, for appellee Moorer.

FOSTER Justice.

This appeal is governed by section 3108, Code of 1923, then in effect (see section 296, Title 51, Code of 1940).

The purpose of that statute was to save to an owner of land sold for its taxes the right to redeem it without limit of time provided he has such possession of it, as may be sufficient for that purpose. And he need not wait until the purchaser at tax sale sues to recover the land, but while so in possession he can go into equity and enforce his right to redeem. National Fireproofing Corp. v. Hagler, 226 Ala. 104, 145 So. 421; Georgia, etc., Co. v. Washington Realty Co., 205 Ala. 288, 87 So. 794; Chesnutt v. Morris, 223 Ala. 46, 135 So. 344; Threadgill v. Home Loan Co., 219 Ala. 411, 122 So. 401; Bell v. Propst, 220 Ala. 641, 127 So. 212; Morris v. Card, 223 Ala. 254, 135 So. 340, 344; Burdett v. Rossiter, 220 Ala. 631, 127 So. 202.

We said in Bell v. Propst, supra, that the complainant must have such possession as will require some nature of suit by the purchaser at tax sale to recover it of him; but that it need not be such peaceable possession as will justify a statutory bill to quiet title: it may be a scrambling possession. Chesnutt v. Morris, supra. And in National Fireproofing Corp. v. Hagler, supra, it was also observed that constructive possession is sufficient.

In this case the only question which is important is whether the landowner and his successors in estate had sufficient possession of the land at the time the instant suit was filed. Chesnutt v. Morris, supra. And since the land was wholly unimproved, in a wild state, the question relates to the nature of possession of that sort of land which will justify an enforcement of the right here involved. The nature of the possession of such land has often arisen in respect to a claim of adverse possession by one seeking to establish a claim of title against one with a record title. When the land has never been occupied in a true sense, the possession is constructive and follows the title, since no one is in the actual possession. The claim of ownership or the intention to assert title is not actual possession in the absence of demonstration by acts done upon the property constituting indicia of ownership. Rare and widely separated acts, no matter how clearly they may have indicated a purpose to claim title, do not show a possession sufficient for the purpose of acquiring title by that means. Rucker v. Jackson, 180 Ala. 109, 60 So. 139, Ann.Cas. 1915C, 1058.

Mere casual acts of ownership as where one authorized persons to go upon land to cut timber, payment of taxes, and requesting another to look after the premises do not constitute adverse possession. Adler v. Prestwood, 122 Ala. 367, 24 So. 999; Montgomery v. Spears, 218 Ala. 160, 117 So. 753; Jackson Lumber Co. v. McCreary, 137 Ala. 278, 34 So. 850; 2 Corpus Juris Secundum, Adverse Possession, § 38, p. 550. Although there may be certain sorts of acts of possession, which, if continued and uninterrupted, will be sufficient, though the land is wild. Aiken v. McMillan, 213 Ala. 494, 106 So. 150.

In this case the question is not specifically whether the purchaser at the tax sale or the taxpayer acquired title after the sale by adverse possession. The legal effect of that sale is not here questioned. But it is whether the right to redeem by the owner who was the taxpayer has been cut off (section 3108, supra) by reason of the possession of such tax purchaser. So that the issue as to possession by the tax purchaser resembles that sort of possession which is sufficient for the acquisition of title by adverse possession. We think that the right of redemption here involved is not cut off by the possession of the tax purchaser unless it is of the same character as would be sufficient to comply with the law of adverse possession. And carrying the analogy further-that in the absence of any actual, visible, continuous possession of the land by the purchaser under a tax sale, the constructive possession should be regarded as in the owner of the right of redemption so as to preserve it under section 3108, supra, if he previously had the actual possession which was not thus interrupted. Also that the owner...