O'Connor v. Rabren

• Decision Date: 20 July 1979
• Citation: 373 So.2d 302
• Parties: William W. O'CONNOR v. Maggie M. RABREN. George B. O'CONNOR v. Maggie M. RABREN. 77-714, 77-714A.
• Court: Alabama Supreme Court

Page 302

373 So.2d 302

William W. O'CONNOR v. Maggie M. RABREN.

George B. O'CONNOR v. Maggie M. RABREN.

77-714, 77-714A.

Supreme Court of Alabama.

July 20, 1979.

Robert A. Wills, Bay Minette, for appellants.

T. M. Brantley of Brantley & Vargo, and Robert F. Vargo, Bay Minette, for appellee.

BLOODWORTH, Justice.

These consolidated appeals are from judgments denying relief in suits to have tax sales declared void and to redeem land from those tax sales. We affirm.

George and William O'Connor, appellants, acquired adjoining parcels of land in Baldwin County in 1955 by purchase from the government. Both parcels were sold to the appellee, Mrs. Rabren, on June 5, 1972, for non-payment of taxes. Tax deeds were issued to Mrs. Rabren on June 12, 1975. Three months later she filed a petition to quiet title to both parcels. In December 1975, the trial court entered final judgment (based upon judgment by default against the O'Connors), quieting title to the land in Mrs. Rabren.

The O'Connors filed the present quiet title actions in July 1976, seeking a declaration that the tax sales were void and seeking to redeem from the tax sales. They alleged that the sales were void for failure to comply with the statutory requirements for tax sales. Subsequently, George O'Connor died, and William O'Connor, as his executor, was substituted as the real party in interest in the action involving George's land.

After hearing testimony ore tenus, the trial court found that the O'Connors were not entitled to the relief sought. This appeal followed.

On appeal, the O'Connors contend that they were entitled to have the tax sales declared void, to have the tax deeds cancelled, to redeem from the tax sales, and to have title quieted in themselves. They insist that the trial court's judgment denying relief is against the great weight of the evidence.

The trial court made no specific findings of fact. Nevertheless, our review, on appeal, is governed by the principle that, in the absence of specific findings of fact by the trial court, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight and preponderance of the evidence. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975).

We pretermit discussion of the effect, if any, which Mrs. Rabren's 1975 quiet title judgment had on the subsequent proceedings and proceed to consider the validity of the tax sales.

The first issue is whether the O'Connors were entitled to have the tax sales declared void and the tax deeds cancelled. The trial court, in denying this relief, must have necessarily found that the statutes prescribing the notice and methods of sale in tax proceedings were strictly followed.

The O'Connors introduced certified copies of pertinent pages from the Tax Sale Books of the Baldwin County Tax Collector's Office. They contend that these records reflect irregularities in the tax sales for failure to comply with Code 1975, §§ 40-10-5, -12, -13, and -15.

However, § 40-10-5 is inapplicable here because it deals with assessments to an "owner unknown." The assessments in the instant case were to George O'Connor and William O'Connor, with no addresses listed.

Our cases are in agreement that the statutory provisions must be strictly followed. Reuter v. Mobile Building & Construction Trades Council, 274 Ala. 614, 150 So.2d 699 (1963).

In order to determine whether the other sections were strictly followed, we turn to the tax sales records admitted into evidence. They show that the notices of delinquency were issued by the probate judge on March 1, 1972. Hearings were set for April 10, 1972, first day of the term of court. Notice was given by publication ten days before April 10, As required by law. The probate judge entered judgments of sale on May 4, 1972. Thirty days' notice of the sales was given by publication for three successive weeks, and the lands were sold to Mrs. Rabren and the sales reported on June 5, 1972. The probate judge confirmed the sales on June 10, 1972.

The rule of our cases is that in tax sale proceedings recitals in a decree in the language of the law are prima facie evidence of the facts so recited, with special application to the recital as to notice, but are subject to contradiction by other evidence. The burden is on one who would contradict the recitals of the decree to prove that no notice was given as required by law. Hester v. First National Bank, 237 Ala. 307, 186 So. 717 (1939).

Moreover, by statute the certified copies of probate and tax collector's records are prima facie evidence of the facts stated therein. Code 1975, § 40-10-81. Since the O'Connors presented no evidence to contradict these records, and the records appear to be regular on their face, we must conclude that the sales were valid.

Notice of delinquency must be given for thirty days by publication for three successive weeks. Code 1975, §§ 40-10-4, -6, -12. Such notice must be perfected ten days prior to the commencement of the term of court. Code 1975, § 40-10-11. The O'Connors contend that the records show that proper notice of delinquency by publication was not given. We must disagree.

The records state that notice was given As required by law. If publication began on March 1, 1972, the thirty-day period would be completed on March 30, 1972. Therefore, notice by publication would be perfected ten days prior to commencement of the term of court on April 10, 1972.

Notice of sale must also be given for thirty days before the date of sale by publication for three successive weeks. Code 1975, § 40-10-12. The O'Connors contend that the records show that proper notice of sale by publication was not given. Again, we must disagree. The record states notice was given As required by law. If publication began on May 4, 1972, the thirty-day period would expire on June 2, 1972, three days before the sales on June 5, 1972.

Section 40-10-13 requires a report of sale within ten days. The sales here were reported on the same day they were made, June 5, 1972. Confirmation may be entered five days after the report of sale. Here, the sales were confirmed on June 10, 1972, five days after the report.

Section 40-10-15 provides for the manner of sale and duties of the judge of probate. The O'Connors do not specify which part of this section was violated. The records entered into evidence show compliance with this statute, and there is nothing in the record to indicate non-compliance.

There is no irregularity on the face of the tax sale records and nothing offered in evidence to show any irregularity in the sales on the points raised by the O'Connors. It is thus that we find the trial court was correct in refusing to declare the tax sales void and to cancel the tax deeds.

We now address the issue of redemption.

Land sold for taxes to a purchaser other than the state may be redeemed within three years of the date of sale. Code 1975, § 40-10-120. The O'Connors' suits for redemption came four years after the sales. Thus, their only right to redeem is under Code 1975, § 40-10-83. Heard v. Gunn, 262 Ala. 283, 78 So.2d 313 (1955).

The purpose of § 40-10-83 is to preserve the right of redemption without limit of time, if the owner of the land seeking to redeem has retained possession. Moorer v. Chastang, 247 Ala. 676, 26 So.2d 75 (1946). The character of possession need not be actual and peaceable, but may be constructive or scrambling. Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So.2d 411 (1943).

Where there is no real occupancy of the land, constructive possession follows the title of the original owner and will not be cut off by any possession by the tax purchaser short of adverse possession. Tensaw Land & Timber Co. v. Rivers, supra.

The O'Connors do not claim actual or scrambling possession, but rest their right to redeem under § 40-10-83 on constructive possession, as record title holders. However, we find evidence in the record which clearly supports a finding that Mrs. Rabren has exercised...