Ex parte Powell

Decision Date29 October 1999
Citation763 So.2d 230
PartiesEx parte Arthur L. POWELL, Sr., and Irell C. Powell. (In re Arthur L. Powell, Sr., and Irell C. Powell v. Monty W. Ervin and Patricia D. Ervin).
CourtAlabama Supreme Court

William J. Paul of Paul & Paul, Geneva, for petitioners.

Henry F. Lee III and David W. Rousseau of Law Office of Lee & Rousseau, P.C., Geneva, for respondents.

HOUSTON, Justice.

Monty W. Ervin and his wife Patricia D. Ervin sued to quiet the title to land they claimed to have bought through a tax sale and to eject the defendants Arthur L. Powell, Sr., and his wife Irell C. Powell from that land. The Geneva Circuit Court ruled in favor of the Ervins, after conducting a bench trial. The Court of Civil Appeals, on April 2, 1999, affirmed, with no opinion. Powell v. Ervin (No. 2980059), ___ So.2d ___ (Ala.Civ.App.1999) (table). We granted the defendants' petition for certiorari review. We reverse and remand.

In 1927, Lula Smith purchased all of the property that is relevant in this case. She conveyed three portions of that property, one each to her granddaughter Minnie Jewel Griffin and her two daughters Ruthie Jane Griffin and Gertrude Kirkland. Two of the properties, those of Ruthie Jane Griffin (that property is hereinafter referred to as parcel 3.2) and Gertrude Kirkland (that property is hereinafter referred to as parcel 5), were identical in size and were located close to each other. The deeds for both of these conveyances described the property in the same way:

"One lot being 50 feet on the north side, 100 feet on the east side, 50 feet on the south side, and 100 feet on the west side. The said lot being situated in the N.W. corner of the N.E.¼ of the N.W.¼ of section (6) six, township one, range twenty five in Geneva County, Alabama."

Ruthie Jane Griffin received from Lula Smith additional land surrounding parcel 3.2, and then more land from Gertrude Kirkland and Jewel Griffin; none of these additional conveyances included parcel 5.

Ruthie Jane Griffin ("Griffin") gave a mortgage on parcel 3.2 to Farmers Home Administration to secure an indebtedness of $7,200.

Griffin defaulted on the FmHA mortgage. At the foreclosure sale on November 9, 1992, Arthur L. Powell, Sr., purchased the property mortgaged by Griffin to FmHA. The mortgage and the foreclosure deed described that property just as it was described in the deed conveying it from Smith to Griffin, except that the words "Township" and "Range" were abbreviated as "T" and "R."

The tax assessor's office incorrectly assessed the property Powell had purchased as being parcel 5 instead of parcel 3.2. Both before and after the foreclosure sale, parcel 5 was owned by Gertrude Kirkland, who had had it assessed for taxes and had paid taxes on it.

Griffin failed to pay taxes on the property that she owned that surrounded Powell's parcel 3.2. Griffin's property was sold for taxes, but, because of the tax assessor's mistake in assessing Powell's property as being parcel 5, parcel 3.2, along with the property that surrounded it, was sold to the Ervins at the tax sale. A tax deed was issued to the Ervins on May 15, 1997. Powell had paid all taxes on the property assessed to him.

The undisputed evidence is that Powell, at all times since he purchased parcel 3.2, has been in actual or constructive possession of it. He has made improvements on it and has leased it to tenants. Both the tax assessor and Powell separately came to the conclusion, after the tax sale was completed, that Powell's tax assessment was incorrect. The problem was being remedied when the Ervins filed this quiet-title/ejectment action.

Greg Harrison, of the Geneva County Mapping and Appraisal Department, testified that someone in the tax assessor's office had listed the wrong property as belonging to Powell. He said:

"Griffin and Mr. Powell got the foreclosure deed, the legal description of that deed called for 50 feet east and west by 100 feet north and south in the Northwest corner of that forty. And parcel 5 was exactly in the Northwest corner of that forty. So, the girl that was doing our mapping said, well, there it is exactly and she changed parcel 5 into Mr. Powell's name. However, she shouldn't have, because she should have looked at the present owner of that property that we had it assessed to, to see that that wasn't from the foreclosure from that deed, keeping chain of title on that particular piece of property and she changed it erroneously. So then I go out—every deed that's recorded I go out and look at the property and if I can talk to the people I do."

When Harrison went to parcel 5, which had been assessed to Powell, he found Gertrude Kirkland; he then discovered the problem in the assessment. He filled out a "property change" card. On this card, he wrote that after doing a field inspection he had discovered that the property of Powell had been incorrectly assessed and concluded that Powell's assessment needed to be changed to indicate the correct parcel, parcel 3.2. Furthermore, Harrison testified that this mistake had a definite effect on the tax sale to the Ervins:

"Q: For the basis of tax mapping, for your job, are you convinced that [parcel 3.2] is the proper parcel that Arthur Powell should be assessed with?
"A: I am.
"Q: And the initial assessment of parcel 5 was in error?
"A: Right.
"Q: And if he had been properly assessed with parcel 3.2, that land never would have [been] sold for taxes?
"A: That particular part of the land wouldn't have been sold for taxes but the rest of it around it would have been.
"Q: The land around it would have but the land in the center wouldn't have, [parcel] 3.2?
"A: Right."

Consequently, the court had before it undisputed evidence indicating that Powell was the owner of parcel 3.2, the parcel in question here, and indicating that his property should not have been sold for taxes.

Harrison, as a representative of the tax assessor's office, has admitted that his office made a mistake, not only as to the assessment of Powell's land, but also in selling Powell's land for taxes.

When evidence is presented to a trial court sitting without a jury, the general rule is that its findings will be presumed correct unless there is plain and palpable error. However, when the material facts of a case are undisputed, as they are here, "`the ore tenus rule is inapplicable and the appellate court shall sit in...

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