Bell v. Propst

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 527.
• Citation: 220 Ala. 641,127 So. 212
• Parties: BELL v. PROPST ET AL.
• Court: Alabama Supreme Court

127 So. 212

220 Ala. 641

BELL v. PROPST ET AL.

6 Div. 527.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Bill in equity by U. T. Propst and J. W. Propst against J. B. Bell with a cross-bill by respondent. From a decree for complainants, respondent appeals.

Affirmed in part, and remanded, with directions.

J. B Powell, of Jasper, for appellant.

J. J Curtis and J. M. Pennington, both of Jasper, for appellees.

FOSTER J.

Appellees filed a statutory bill to quiet the title of certain woodland valuable for coal deposits. Appellant was defendant and filed an answer and cross-bill. He claimed by virtue of a tax deed which appears to be regular, and pursuant to proceeding conforming to law. The cross-bill sought to quiet his title and prayed for general relief. As a part of the answer to the cross-bill, complainants moved the court to ascertain the amount which they claimed was proper for them to pay in the exercise of the right of redemption under section 3108 of the Code, and also sought the same relief by an amendment to the original bill.

After taking the testimony, and on final hearing the court decreed that neither complainants nor respondent could have the title quieted as sought by their respective bill and cross-bill, because neither was in peaceable possession, but that complainants be granted the right of redemption under the authority of section 3108, Code.

Appellant claims that the suit is not of such nature as to make the right of redemption declared by that statute applicable. It will be noted that it is applicable "when the suit is against the person against whom the taxes were assessed, or the owner of the land at the time of the sale." It is not dependent upon the invalidity of the tax sale. Green v. Stephens, 198 Ala. 325, 73 So. 532. In that case it was held, however, to be conditioned upon the owner of the land remaining in possession. We take this to mean such possession as that the purchaser must sue for its recovery in order for him to gain its possession. But it was held by this court that the owner in possession need not wait until the purchaser sues him, but may institute a suit to quiet the title or remove a cloud, and exercise this right of redemption. Georgia Loan & Trust Co. v. Washington Realty Co., 205 Ala. 288, 87 So. 794. To justify a suit in equity to exercise this right, the complainant must have such possession as will require some nature of suit by the purchaser at tax sale to recover it of him. It need not be that peaceable possession which will justify a statutory bill to quiet the title. For if the original owner be and remain in such possession as that it will require some nature of suit to oust him, though his possession be a scrambling one, he need not wait to be sued to stimulate an exercise of the right conferred by section 3108, but may, as was done in Georgia L. & T. Co. v. Washington Realty Co., supra, institute a suit in equity to enforce the right. Of course he could not, as the decree in this case stated, have the statutory relief to quiet the title unless he had peaceable possession. But if he is in possession and the purchaser is scrambling with him as to its retention, such situation should not deprive him of this right to file a bill for an exercise of this right of redemption whether it deprives him of relief under the statute to quiet the title or not. Montgomery v. Spears, 218 Ala. 160, 117 So. 753.

But strictly speaking, the cross-bill of the tax purchaser was in effect a suit by him under the terms of the statute. True it was but a cross-suit, but it was one...