Calhoun County v. Logan, 7 Div. 156

• Court: Supreme Court of Alabama
• Writing for the Court: PER CURIAM; The foregoing opinion was prepared by Foster; LIVINGSTON; LAWSON; MAYFIELD; MAYFIELD; PER CURIAM; The foregoing opinion was prepared by FOSTER; LIVINGSTON; LAWSON; MAYFIELD
• Citation: 80 So.2d 529,262 Ala. 586
• Parties: CALHOUN COUNTY v. Duke LOGAN.
• Decision Date: 24 February 1955
• Docket Number: 7 Div. 156

Page 529

80 So.2d 529 262 Ala. 586 CALHOUN COUNTY
v.
Duke LOGAN. 7 Div. 156. Supreme Court of Alabama. Feb. 24, 1955.
Rehearing Denied May 19, 1955.

[262 Ala. 587]

Page 531

Chas. Thomason, Anniston, for appellant.

Emerson & Watson and Duke Logan, Anniston, for appellee.

PER CURIAM.

This is an appeal by Calhoun County from a judgment rendered in the circuit court of that county on February 2, 1952. The judgment ascertained the damages and compensation for the taking of appellee's leasehold interest in a tract of land, consisting of five or six acres, at the sum of $3,000, and in said judgment the court ordered and decreed that appellee have and recover of Calhoun County said sum of $3,000.

By agreement of the parties to the appeal in the circuit court the record does not include the probate proceedings, but conceded that the Circuit Court of Calhoun [262 Ala. 588] County had jurisdiction of the case on appeal by Logan from the decree of the probate court condemning said property for highway purposes. We do not know whether Logan's landlord, one Cecil W. Hastings, was originally made a party to the proceeding or not. He was not a party on the appeal. Hastings' contract to lease to Logan is shown by the record to be dated January 29, 1944. The lease was to continue for a period of five years with the right to renew upon giving notice as stipulated. Said notice of renewal was given so as to extend the period to January 29, 1954.

An appeal was taken to the circuit court by Logan on December 23, 1950. Thereafter, and before the proceedings came on for trial in the circuit court and on to wit February 20, 1951, Hastings and his wife executed a right-of-way deed to Calhoun County conveying two hundred and fifty feet in width across their land, of which the tract leased to Logan was included. Said conveyance recited that it was subject to Logan's lease. The record shows that after the execution of this conveyance by Hastings and before the proceedings in the circuit court came on for hearing, the county began building its road through the land in question. The record does not show that the county paid into court the amount of compensation and damages which had been assessed in the probate court, nor had executed the bond as authorized by section 18, Title 19; section 44, Title 23, Code, and section 235 of the Constitution. But since the county began constructing the road through said tract without any apparent objection being made, we will assume that the amount of compensation and damages were paid into court and bond executed although we do not know what was the amount of it.

Subsequent to the beginning of the work by the county in the construction of the road and before the cause came on for hearing in the circuit court, but after the appeal had been taken to that court, Logan sold and conveyed his lease to Hastings, his landlord, including the house which he had erected upon the land as provided in the lease contract. A hearing was then had with trial between Logan and Calhoun County. Hastings was not a party to the proceedings in the circuit court either by intervention, section 247, Title 7, Code, or by an amendment to the petition, section 239, Title 7, Code, or by citation on the appeal. The trial was had without a jury by agreement of the parties, resulting in the judgment of February 2, 1952.

Page 532

The first question we will consider on this appeal is whether Logan is entitled to receive compensation for the injury to the leasehold, or whether the right to it passed to Hastings under the conveyance to him.

We find the rule to be well established 'that where property is purchased which is subject to pending condemnation proceedings, under which title has not vested in the condemnor, and the deed conveying such property is silent as to the right to the award money to be paid, such money belongs to, and is recoverably by the vendee'. 82 A.L.R. 1063. There are many citations and extracts from cases which support that view, among them is the case of Security Co. v. Rice, 215 Cal. 263, 9 P.2d 817, 818, 82 A.L.R. 1059. The rule is stated in substantially the same language in 29 C.J.S., Eminent Domain, § 202, p. 1117, citing many of the same cases and others.

In the case of Security Co. v. Rice, supra, the Supreme Court of California was dealing with a similar question. It was observed that under its statute 'in condemnation proceedings the title to the property condemned does not vest in the public until payment has been made as required by the verdict of the jury or judgment of the court and a copy of the final order of condemnation has been filed for record'. The court held that after the judgment fixing the amount of the award was made, but before the amount of it was paid into court, the defendant, owner of the premises, conveyed them to another, the purchaser was entitled to the award. But that if after the order of condemnation and payment of the money into court the conveyance is made, the purchaser is not entitled to the award but it remains that of the seller unless the conveyance[262 Ala. 589] contains a provision to the contrary. In that case the purchaser was not a party to the proceeding. At the time of the conveyance the proceeding was pending in court but there had been no order of condemnation. The amount of the award was later ascertained and paid into court. Thereupon the conveyance was held to pass to the purchaser the right to receive the award. The ruling was made to hinge upon the fact that the rights of the public could not vest until after the condemnation had been adjudged, the compensation and damages ascertained and paid into court. The original owner who was the party defendant had received the amount thereof from the court. The purchaser sued him for the same in a separate action. The court permitted such suit to be maintained, and awarded the amount of the compensation to the purchaser.

The first provision for the order of condemnation in our statutes is in section 16, Title 19, Code, to the effect that the probate court must make an order of condemnation upon the payment of damages and compensation assessed and reported by the commissioners or the deposit of the same in court. But an appeal is triable de novo in the circuit court. Section 17, Title 19, Code. Pending that appeal the judgment of the probate court is not suspended to enable petitioner to enter upon the land on a deposit in court of the amount of the award and the execution of a bond. Section 18, Title 19; section 44, Title 23, Code; section 235, Constitution. On the appeal the court tries de novo not only the question of damages and compensation but also the right to condemn under section 7, Title 19, Code. City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305; Williams v. Jefferson County, 261 Ala. 76, 72 So.2d 920. An appeal may be taken to the Supreme Court from the...