Ex parte Helm

• Decision Date: 18 December 1919
• Docket Number: 6 Div. 940.
• Citation: 95 So. 546,209 Ala. 1
• Court: Alabama Supreme Court
• Parties: EX PARTE HELM.

95 So. 546

209 Ala. 1

EX PARTE HELM.

6 Div. 940.

Supreme Court of Alabama

December 18, 1919

Certiorari to Court of Appeals.

Petition of J. B. Helm for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of Helm v. Griffith, 17 Ala. App. 122, 82 So. 570. Writ awarded, and cause remanded.

See also, 95 So. 548, 551.

Horace C. Wilkinson, of Birmingham, for petitioner.

Harsh Harsh & Harsh and W. J. Slaughter, all of Birmingham opposed.

THOMAS J.

The suit was to recover damages for breach of covenant warranting the title to real estate to be free from incumbrances.

The deed in question, of date May 30, 1910, described the property as "situated in the town of Woodlawn." On January 1, 1910, said town was merged into the city of Birmingham, and under the terms of the act of merger, as well as under the appropriate provisions of the Political Code, §§ 1152-1162, the city of Birmingham was vested with the right of enforcing all liens for taxes and assessments which except for the merger, might have been enforced by the town of Woodlawn.

That accrued and unpaid taxes are incumbrances on lands is indicated by the comprehensive definition of incumbrances contained in Brodie v. New Eng. Mortg. Sec. Co., 166 Ala. 170, 172, 51 So. 861.

It is of statutory requirement that the city or town clerk within three months after taxes have become delinquent shall make out a list and certify thereto, "describing each piece of property separately, with the name of the owner, if known, and the amount of taxes due on such property, and the amount of taxes due by such owner upon personal property, which also may be collected by a sale of the realty as for taxes due thereon." Code,§ 1319. This was a condition precedent to the discharge by the register in chancery of the duties imposed by statute upon such official as to giving the prescribed notice to the known or unknown owner of the property to be sold for unpaid taxes or assessments. Compliance with such statutory requirements held necessary that said sale divest the legal title out of the owner and invest the same in the purchasers thereat. Code, §§ 1320, 1321; Drennen v. White, 191 Ala. 274, 277, 68 So. 41; Mayor v. Allison, 191 Ala. 316, 68 So. 142; Gunter v. Townsend, 202 Ala. 160, 79 So. 644, 646, 657; Pollak v. Milam, 190 Ala. 569, 570, 67 So. 381; Lodge v. Wilkerson, 174 Ala. 133, 136, 56 So. 994.

In the instant case the certified delinquent tax list filed with the register in chancery recites that it was made by the "treasurer and tax collector," and not by the city clerk, and purports to be for the unpaid taxes for the year 1909 in the city of Birmingham. It does not indicate, as required by statute, the amount of taxes due for said year. The order of the register for publication as to the unknown owner was to effect that the chancellor would adjudge said property described liable "for such street improvement assessment." The certificate of publication as to such unknown owner was that the lots be sold for the payment of the taxes, charges, penalties, interest, and costs that are charged thereon. The decree was that said lots were "liable for such taxes in the sum of $2 with interest thereon to date of the payment thereof from the first day of January, 1910," and that the register be directed to sell the same "for the payment of taxes and interest as aforesaid," etc. The notice of sale to its unknown owner was to the effect that said sale of said lots was for payment of the taxes for said year 1909, viz.:

"Tax $2.00, Int. 14¢, Fee 50¢, Costs $10.00, Prt. $8.00-$20.64, sold to satisfy said decree.

"J. W. Altman, Register."

Due objections were made to the introduction in evidence of each of said papers, which were (respectively) overruled and to which rulings exceptions duly reserved.

The trial court committed no error in admitting in evidence the documents evidencing the several stages in the ineffectual effort in chancery to sell the lots in question for said taxes; though it...