Chesnutt v. Morris

• Decision Date: 14 May 1931
• Docket Number: 6 Div. 721.
• Citation: 223 Ala. 46,135 So. 344
• Parties: CHESNUTT v. MORRIS.
• Court: Alabama Supreme Court

135 So. 344

223 Ala. 46

CHESNUTT v. MORRIS.

6 Div. 721.

Supreme Court of Alabama

May 14, 1931

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill to quiet title by M. L. Chesnutt against J. M. Morris. From a decree dismissing the bill, complainant appeals.

Reversed and remanded.

W. A Weaver and J. Wiley Logan, both of Birmingham, for appellant.

O. B Cornelius, of Birmingham, for appellee.

THOMAS J.

The case of Morris v. Card (Ala. Sup.) 135 So. 340 rules this case.

In dismissing the bill, the trial court, no doubt, had in mind the question of a scrambling possession. This was before the decision in Bell v. Propst, 220 Ala. 641, 127 So. 212. When the fence was built by the vendee, alleged to have been erected by the original owner, his possession as vendee authorized him to file a bill to redeem. Section 3108, Code. That is, so long as the tax purchaser does not have the actual possession of the property, though he has the right by valid tax deed, the true and original owner or his vendee may go into possession of vacant property peaceably, and file a bill to redeem under section 3108, even though the tax purchaser should be attempting to regain possession by force or by way of scrambling or intermittent acts.

It is insisted that the provisions of section 3108, Code, Acts 1915, p. 475, § 240, for redemption by the several classes indicated by the statute, apply to those who constantly remained in possession, and not to one of the class who did not actually and continuously hold the possession, against occasional acts hostile to his ownership, though "the owner of the land at the time of the sale, his heir, devisee, vendee, or mortgagee," may be in the actual possession at the time the bill for redemption is filed, and who cannot be peaceably dispossessed without appropriate "suit against such person."

In Green v. Stephens et al., 198 Ala. 325, 73 So. 532, 533, the suit was statutory ejectment by one claiming under a purchaser at tax sale; the judgment allowed redemption. There was allowed substitution or intervention of the original owner at the time of tax sale. The court said, of the purpose of the statute, that the right is created with a view to its exercise in "cases where valid tax titles have been made, and the original owner remains in possession." (Italics supplied.)

The case of Georgia Loan & Trust Co. v. Washington Realty Co., 205 Ala. 288, 87 So. 794, 795, was where a mortgagee sought foreclosure and redemption from tax sale of the mortgaged premises, and alleged that it had possession of the premises when the bill was filed. The court through Mr. Justice Miller said: "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 of the Code of 1907, amended by Acts 1915, § 240, p. 475; 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 as said act (section 240) requires, and the tax deed removed as cloud on the title to the lot. Section 2312, Code of 1907, as amended Acts 1915, § 240, p. 475; Green v. Stephens, 198 Ala. 325, 73 So. 532."

In Burdett v. Rossiter, 220 Ala. 631, 633, 127 So. 202, 203, the suit was to quiet title by one claiming under tax deed against him who claimed through sheriff's deed on sale under execution and the averment of possession and ownership. There was motion for redemption from tax title and after ascertainment of the amount of such redemption was allowed. The court said: "If the tax title proves valid, and he establishes his right of redemption under Code, § 3108, he obtains such relief. If the tax title is found invalid, still the holder may have succeeded to the lien of the state and county, and be entitled to have a refund as per Code, §§ 3101, 3102. So, on a bill by the owner in possession to quiet title he may remove the cloud or incumbrance on his title whether the tax title set up by respondent be valid or invalid."

And in the case of Bell v. Propst, 220 Ala. 641, ...