Downing v. City of Russellville

• Decision Date: 20 March 1941
• Docket Number: 8 Div. 96.
• Citation: 3 So.2d 34,241 Ala. 494
• Parties: DOWNING v. CITY OF RUSSELLVILLE et al.
• Court: Alabama Supreme Court

3 So.2d 34

241 Ala. 494

DOWNING v. CITY OF RUSSELLVILLE et al.

8 Div. 96.

Supreme Court of Alabama

March 20, 1941

Rehearing Granted June 5, 1941.

Further Rehearing Denied June 30, 1941.

Appeal from Circuit Court, Franklin County Chas. P. Almon, Judge.

Curtis & Maddox, of Jasper, W.L. Chenault, of Russellville, and A.H. Carmichael, of Tuscumbia, for appellant.

J. Foy Guin, of Russellville, for appellees.

BROWN Justice.

The original bill, filed by the appellant, seeks to enjoin the defendants, the City of Russellville and the Sheriff of Franklin County, from selling the lands described in the bill, of which the complainant, appellant here, is in possession, under a writ of venditioni exponas, for the reason, as alleged in the bill, that "said sale would constitute a cloud upon the title of this complainant in and to said lands, and therefore, said sale should be enjoined."

While the bill in some of its allegations conforms to the requirements of the statute, Code of 1923, § 9905, Code 1940 Tit. 7, § 1109, authorizing bills to quiet title, it does not aver that the defendants claim or are reputed to claim some right, title or interest in or incumbrance upon such lands, nor does it call upon them "to set forth and specify his [their] title, claim, interest, or incumbrance, and how and by what instrument the same is derived and created." Code of 1923, § 9906, Code 1940, Tit. 7, § 1110.

It is, therefore, strictly speaking, not a statutory bill to quiet title within the rule that a bill and answer conforming to the requirements of the statute presents every issue necessary to a settlement of the controversy. McCaleb v. Worcester et al., 224 Ala. 360, 140 So. 595; Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60, 131 So. 223.

The bill alleges "that the complainant is the owner of and in the peaceable possession" of the real estate described in the bill, and the answer admits "that the complainant owns the real estate described in the bill, although subject to the lien of the respondent City of Russellville, as hereinafter set out."

The answer alleges:

"In the year 1927, and continuously thereafter until sometime in the year 1935, the tract of land in litigation was owned by one W.L. Chenault, who is the complainant's brother-in-law, and as to whom she is successor in title, and stands in privity of title. In said year 1927 the City of Russellville initiated proceedings under the statute for the assessment of said tract of land for the benefits accruing to it from the improvement of a street on which the same abuts. By judgment of the City Council an assessment was made final on, to-wit, December 11, 1928.

"Thereafter the said W.L. Chenault appealed to the Law & Equity Court of Franklin County, Alabama, from said judgment of assessment. The appeal was duly tried de novo in said court, as provided by law, and resulted in a judgment and decree of the Law & Equity Court dated May 12, 1937 assessing such tract of land in the sum of $4,000.00, and fixing a lien thereupon for the payment of the said assessment. A correct copy of said final judgment of the Law & Equity Court is hereto attached, marked Exhibit 'A' and made a part of this answer as fully as if set forth at length herein. The said judgment has never been paid, and therefore constitutes an enforceable lien upon said tract of land in the sum of $4,000.00, together with the interest thereon at the legal rate from the date thereof, and the costs and expenses of selling and conveying.

"Pending the above mentioned appeal, the said W.L. Chenault suffered such tract of land to sell for unpaid state and county taxes, and at the tax sale the same was bid in for the State of Alabama. Thereafter, and during or about the year 1938, the complainant acquired title by tax conveyance from the State of Alabama; although the respondents are informed, and believe, that in fact and in truth, she took title in trust for the use and benefit of the said W.L. Chenault, in an effort to escape the lien of the above mentioned judgment of assessment and they call upon her to deny and disprove this averment." (Italics supplied.)

The defendants make their answer a cross-bill, and pray, in short (1) that it be decreed that the title of the complainant is subordinate to the statutory lien of the City of Russellville arising under § 2199 of the Code 1923, Code 1940, Tit. 37, § 538, for local improvements, and that complainant's rights be limited to the recovery of the taxes and charges incurred in the foreclosure of the state's lien for state and county delinquent taxes, for which the lands were sold and bought in by the state, and, in the alternative (2) that the City of Russellville be allowed to redeem from said tax sale, and to that end said defendants offer to do equity.

The court overruled the complainant's demurrer to the cross-bill and from that decree this appeal is prosecuted.

The demurrer filed by the complainant, appellant here, to the cross-bill, takes the point, among others, that its allegations show that the state became the purchaser of the property at tax sale made by the taxing authorities for the default of the owner, W.L. Chenault, to pay the state and county taxes assessed against him, and that complainant purchased from the state and acquired the title at such purchase.

We pass over the italicized allegations of the cross-bill with the observation that they are not allegations of fact, but at most allegations of information and belief, and are without probative force, to controvert the admitted fact that complainant is the owner and holds the legal title to the property. Cullman Property Company v. H.H. Hitt Lumber Co. et al., 201 Ala. 150, 154, 77 So. 574.

The insistence of appellant is that the sale of the lands for taxes, in due course, and purchase by the state at the tax sale foreclosed the state's paramount lien which merged in and became a part of the title, and this title is superior to all incumbrances or liens existing prior to the sale.

The pertinent provisions of the statute establishing the lien in favor of the state, counties, and municipalities for taxes assessed, attaching from and after October first of the tax year, are:

"These liens shall be superior to all other liens and shall exist in the order named and each of such liens may be enforced and foreclosed by sale for taxes as provided in this Act, or as other liens upon property are enforced." Gen.Acts 1935, p. 566, § 372, Code 1940, Tit. 51, § 884.

These provisions have existed and been brought forward in the laws on taxation through the years. Gen.Acts 1919, p. 449, § 416, Code 1907, § 2093.

The appellees' contentions, on the other hand are (we quote from the brief):

"1. That the lien of the City of Russellville for the enforcement of its street improvement assessment, and the lien of the state of Alabama for the collection of its taxes, are of equal rank and dignity; that neither has precedence over the other; that when the state of Alabama acquired title at tax sale, it acquired the tract of land in litigation subject to the assessment lien; and that when the complainant took title from the state of Alabama, she acquired the same subject to the judgment of assessment. That therefore, the city of Russellville has the right to enforce its lien, and complainant is not entitled to a decree quieting title.

"2. That if cross-complainant be mistaken in alternative number one, the complainant acquired by her conveyance from the state only the right to enforce against the lands in dispute the taxes and tax sale costs paid by her to the state of Alabama, together with the interest thereon. The cross-bill called upon the complainant to set forth and specify her tax liens and tax charges and interest, and offered to pay the same, if the court should find alternative number one not justified. The cross-bill specifically offered to do equity.

"3. That if alternative number one and number two should be both found incorrect, nevertheless the City of Russellville had a valid lien for street improvements upon the date of the tax sale; that it has never received from the purchaser at tax sale, or from anyone else, written notice of the sale for taxes; and that therefore the city has the statutory right to redeem from the tax sale, which right it desires to exercise. Again, the cross-bill called upon the complainant to set forth and specify the charges necessary to effect a redemption, and offered to pay the same in the event that the previously mentioned alternatives should be decreed" against cross-complainants.

The statutes relied on by appellees to support their first contention, stated above, are, Code 1923, § 2199, 2202, and Act 270, approved November 8, 1932, Gen.Acts Extra Session 1932, p. 273, Code 1940, Tit. 37, §§ 538, 543.

Said Section 2199, is in the chapter providing for local improvements, provides: "At such meeting or any adjourned meeting the council shall proceed by order or resolution to fix the amount of the assessment against each lot or tract of land described and included in said assessment roll, and all such assessments, from the date of such order or resolution, shall be and constitute a lien on the respective lots or parcels of land upon which they are levied, superior to all other liens, except those of the state or county for taxes." (Italics supplied.)

Said Section 2202, provides: "The enforcement by the state county, city or town, of its lien for taxes on any lot upon which has been levied an assessment for any improvement authorized by this article, shall not operate to discharge, or in any manner affect the lien of the municipality for said assessment, but a purchaser at a tax sale by the state, county, city, or town of any lots or parcel of...