Alabama Pecan Development Co. v. Case

• Decision Date: 24 October 1957
• Docket Number: 1 Div. 705
• Citation: 266 Ala. 471,97 So.2d 537
• Parties: ALABAMA PECAN DEVELOPMENT CO., Inc. v. A. B. CASE.
• Court: Alabama Supreme Court

Page 537

97 So.2d 537

266 Ala. 471

ALABAMA PECAN DEVELOPMENT CO., Inc. v. A. B. CASE.

1 Div. 705.

Supreme Court of Alabama.

Oct. 24, 1957.

Caffey, Gallalee & Caffey, Mobile, for appellant.

Austill & Austill, Mobile, for appellee.

SIMPSON, Justice.

This is an appeal by the Alabama Pecan Development Co., Inc. from a decree of the lower court holding that A. B. Case, as successor in title to the landowners, whose lands had been sold for delinquent taxes, was entitled to redeem the land from the tax sale. Case, the appellee, filed a statutory bill to quiet title, claiming record title to SE 1/4 of NW 1/4 and NW 1/4 of SW 1/4 and the NW 1/4 of NE 1/4, all of Section 29, Township 4 South, Range 3 West. Also the following lands in Section 5, Township 5, Range 3 West: SE 1/4 of NE 1/4; SW 1/4 of NE 1/4; NE 1/4 of NW 1/4; NW 1/4 of SE 1/4 and SW 1/4 of SE 1/4.

The appellant, The Alabama Pecan Development Co., filed an answer and cross-bill alleging a tax title and claiming ownership of the property thereunder. The appellee, by way of answer to the cross-bill, filed a motion, seeking to come under the provisions of Title 51, § 296, Code of 1940, asking a redemption of the property. The lower court ordered a redemption, and the Alabama Pecan Development Co. has appealed. Section 296 provides:

'When the suit is against the person against whom the taxes were assessed, or the owner of land at the time of the sale, his heirs, devisee, vendee, or mortgagee, the court shall, on motion of the defendant made at any time before the trial of the cause, ascertain the amount paid by the purchaser at the sale, and of the taxes subsequently paid by the purchaser, together with six percent per annum thereon, and a reasonable attorney's fee for the plaintiff's attorney for bringing the suit, and shall enter judgment for the amount so ascertained in favor of the plaintiff against the defendant, and the judgment shall be a lien on the land sued for. Upon the payment into court of the amount of the judgment and costs, the court shall enter judgment for the defendant for the land, and all title and interest in the land, shall by such judgment be divested out of the owner of the tax deed.'

Under the provisions of this section, it is immaterial whether the tax title is valid or invalid or that the period for other methods of redemption has expired, or that the suit is brought by the landowner or his title successor. Morris v. Card, 223 Ala. 254, 135 So. 340; Green v. Stephens, 198 Ala. 325, 73 So. 532.

Speaking of this statute the court said in Moorer v. Chastang, 247 Ala. 676, 26 So.2d 75, 78:

'* * * In order to entitle the complainant [landowner] to relief sought in this peculiar statutory proceeding, there are certain primary requisites. First possession of the land by the complainant within the meaning of the statute. * * * Second membership by the complainant in a class of those allowed under the statute to redeem. Third a claim to the land by the respondent under a tax title or proceeding. Fourth no suit pending to enforce or test respondent's claim. If these primary requisites are present, then the case can proceed to a determination of the amount necessary to redeem, the payment thereof to the holder of the tax claim or title and a decree quieting the title of complainant.'

It is first argued by appellant that appellee has not properly pursued the requisite course in seeking to redeem the property under the statute. More specifically, the appellant insists that the appellee has not conformed to the requisite rules of equity pleading; that the appellee should have amended his bill and requested a redemption rather than requesting the right to redeem by the stated motion in order to avail himself of the rights under § 296.

It has been settled in this state that an owner, or his successor, need not wait to be sued to take advantage of the provisions of said § 296, but may institute his own action to clear his title. Burdett v. Rossiter, 220 Ala. 631, 127 So. 202; Bell v. Propst, 220 Ala. 641, 127 So. 212. And pursuing this course an owner or his title successor may file his statutory bill to quiet title. Georgia Loan & Trust Co. v. Washington Realty Co., 205 Ala. 288, 87 So. 794; Morris v. Card, 223 Ala. 254, 135 So. 340.

With reference to the questioned right of appellee to raise the issue of redemption by motion, we think the case of Georgia Loan & Trust Co. v. Washington Realty Co., supra, is apposite.

'Under the averments of the bill we think complainant has the right to have the liens, incumberances, and taxes, penalties, and interest of the defendant, if any, specified and declared; and the tax deed, whether valid or invalid, removed as cloud on title on payment of the amount lawfully due defendant. The complainant avers it is in possession of the land; and when the defendant, being out of possession, specifies by answer or cross-bill its tax claim or liens, if any, then section 2312 of the Code of 1907 [now § 296, Title 51] * * * will be a guide to the court in fixing the amount to be paid by complainant and for which defendant has lien on the lot.

'The law does not require the owner, his heir, devisee, vendee, or mortgagee of land, in possession, when it is sold for taxes, to wait for the purchaser to file ejectment suit in order to put into operation Section 2312 [now 296] * * *; but the owner, his heir, devisee, vendee, or mortgagee of the land, at the time of the tax sale, or the person against whom the taxes were assessed, being in possession, may file bill, like in this cause, and force defendant, the purchaser at the tax sale, to propound his tax claim, lien, or tax title, whether valid or invalid, so it can be paid * * * and the tax deed removed as cloud on the title to the lot.' (Emphasis added.) 205 Ala. at page 289, 87 So. at page 794.

The above expressions lean to the view that the owner may file his bill, as in the instant case, to require the purchaser to bring out his tax title. When this is done, then under the provisions of § 296, such a motion as here may be filed and a redemption had upon the necessary elements of § 296 being met. See also Chastang v. Moog, 230 Ala. 452, 161 So. 502, and Bell v. Propst, 220 Ala. 641, 127 So. 212, importing the same conclusion.

It is incumbent on the appellee to show what title he holds to the property he seeks to redeem. Section 296, Title 51; Moorer v. Chastang, 247 Ala. 676, 26 So.2d 75. Upon checking the chain of title leading up to appellee, there appears a deed conveying to 'W. R. Dawes as trustee for Chandler B. Beach', property, of which the NW 1/4 of SE 1/4 of Section 5, Township 5 South, Range 3 West, is a part. This vested the legal estate in Chandler B. Beach. A deed to one 'as trustee for' certain persons, which failed to impose active duties, creates only a dry trust and vests the title to the property in the cestui que trust, leaving no interest in the trustee which he could convey. Title 47, § 144, Code of 1940; Berry v. Wooddy, 16 Ala.App. 348, 77 So. 942 and cases cited. In the light of this principle it must be held that appellee has failed to establish title out of Chandler B. Beach and into himself. Therefore, the learned trial court committed error when it decreed that the appellee was entitled to redeem the NW 1/4 of the SE 1/4 of Section 5, Township 5 South, Range 3 West, and a reversal of the decree as to this forty acres must be ordered.

Next, as to that land the appellee claims through Rufus C. Dawes, viz., NW 1/4 of the NE 1/4, Section 29, Township 4 South, Range 3 West; SW 1/4 of NE 1/4 and the NE 1/4 of the NW 1/4 all of Section 5, Township 5 South, Range 3 West. The appellee attempted to establish his title to these three forties by deeds from the heirs of Rufus C. Dawes. To prove the heirship of the various grantors, the appellee was allowed to introduce into evidence an affidavit made by Charles C. Dawes. However,...