Family Land & Inv. Co. v. Williams

• Decision Date: 21 December 1961
• Docket Number: 6 Div. 329
• Citation: 273 Ala. 273,138 So.2d 696
• Parties: FAMILY LAND & INVESTMENT CO., Inc. v. William Howard WILLIAMS et al.
• Court: Alabama Supreme Court

Page 696

138 So.2d 696

273 Ala. 273

FAMILY LAND & INVESTMENT CO., Inc. v. William Howard WILLIAMS et al.

6 Div. 329.

Supreme Court of Alabama.

Dec. 21, 1961.

Rehearing Denied March 22, 1962.

James & Beavers, Birmingham, for appellant.

Martin & Blakey and Harold Bowron, Jr., Birmingham, for appellees.

LIVINGSTON, Chief Justice.

This appeal is from the Circuit Court of Jefferson County, Alabama, in Equity, quieting title in respondents, appellees, in a suit filed by appellant under and by virtue of the provisions of Title 7, Sec. 1109 et seq., Code of 1940.

The original bill of complaint filed by the appellant contained all of the jurisdictional averments to support a decree under the provisions of the foregoing Code sections. In addition, appellant prays for an ascertainment of the taxes due on said lands and that it be allowed to redeem.

Appellees filed an answer in which they denied the peaceful possession of the appellant and averred that they, the appellees, were in peaceful possession of the lands sued for, and set forth their claim of title thereto by virtue of two deeds from the state land commissioner conveying the land to them in August and October, 1946, said appellees being either heirs or devisees of the original grantees in the two tax deeds. They also allege that they have been in possession for over ten years prior to the filing of the bill and deny that they claim under or by virtue of a void or erroneous tax title. The answer prayed for an ascertainment of the taxes which they had paid on the lands and that they be reimbursed or given a lien for such taxes, together with interest and proper charges, in event it was decided that appellant was entitled to redeem. Appellees made their answer a cross bill.

Appellant moved the court to strike that feature of appellees' answer, making said answer a cross bill. This motion was granted by the trial court.

The record contains an agreed stipulation of facts to the effect that the chain of title purportedly made by the Title Guaranty and Trust Company covering the property described in the bill of complaint is accepted by the parties as being a true copy of the records in the Probate Office of Jefferson County, Alabama, subject to the following qualification: that a deed by the state land commissioner conveying certain of the lots to George D. Maske, Sr., and Howard Williams, dated August 26, 1946, and a deed from the state land commissioner, dated October 23, 1946, covering certain other lots described in the bill of complaint, and that respondents are either the heirs or devisees of said George D. Maske, Sr., and Howard Williams; and further that the respondents have paid the taxes on all of said lots from and including the year 1946 to the date suit was filed, but that during the year beginning October 1, 1957, there has been a double payment of taxes by reason of the fact that appellant has for said year assessed and paid taxes on the property. Appellant does not admit that the tax deeds from the land commissioner were valid so as to transfer any title or interest to any of said lands or to any of the respondents. It is also stipulated by the parties that all of said lots were last assessed by E. C. Meredith, Jr., who was the true owner of the lots, subject to the qualification that one-half interest had been conveyed out of E. C. Meredith, Jr., so as to vest in J. E. Meredith (a brother of E. C. Meredith, Jr.), and that J. E. Meredith had subsequently conveyed his one-half interest to his wife, Madeline Meredith. It is further admitted that E. C. Meredith, Jr., died intestate in 1937, and his widow, Marguerite D. Meredith, and all the heirs of E. C. Meredith, Jr., and his wife, Marguerite D. Meredith, had prior to this suit executed quitclaim deeds to appellant. It is further admitted that one Mary W. Gayle had been owner of certain of the lots described in the bill of complaint prior to the tax sales to the state, and that her heirs and devisees have executed quitclaim deeds to the lands covering said lots.

In the agreed stipulation of facts, the appellant's ownership of the basic title was admitted, as was appellees' ownership of the tax title. It was further agreed that the chain of title submitted was a true record title of the property, except that appellant did not agree that the tax deeds set forth in the claim of title were valid.

The record further shows that the lands involved were sold for payment of taxes in November 1933, and purchased by the State of Alabama. This proceeding was filed January 18, 1957. It is further disclosed that no prior suit was pending to test the title to subject property.

Our cases applying the provisions of Sec. 1109 et seq. of Title 7, Code 1940, are, to say the least, confusing. We have recently had occasion to reappraise many of our decisions on this subject, and to resolve these, real or apparent, conflicts. The applicable law in respect to pleading, and many factual situations, are set forth in the cases of Myers v. Moorer, Ala., 134 So.2d 168, and Chestang v. Tensaw Land & Timber Co., Ala., 134 So.2d 159. But this is not to say that different factual situations may not present other and different questions in the future.

Appellant argues that it has a right to redeem the land under Title 51, Sec. 296, Code of 1940, unless the appellees have held the property in question adversely for three years under Title 51, Sec. 295, Code of 1940, which provides, in pertinent part, as follows:

'No action for the recovery of real estate sold for the payment of taxes shall lie unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor; * * *'.

So, the question presented here is whether or not there was legal evidence before the court sufficient to sustain its decree vesting all of the title to said real estate in the respondents. All the testimony was taken orally before the trial court, and where testimony is taken orally before the trial court, the court's holding has the effect of a jury's verdict and will not be disturbed on appeal unless plainly and palpably wrong. Clanahan v. Morgan, 268 Ala. 71, 105 So.2d 429; Welch v. Lee, 265 Ala. 594, 93 So.2d 427; Whiteside v. Brown, 266 Ala. 27, 93 So.2d 747.

We are not prepared to say that the trial court fell into error by quieting title in the appellees.

Adverse possession has been defined in many of our cases as actual occupancy, clear, definite, positive, notorious, continuous, adverse and exclusive, for the required period under claim of right of a definite tract. Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705; Moorer v. Malone, 248 Ala. 76, 26 So.2d 558; Pfaffman v. Case, 259 Ala. 411, 66 So.2d 890; Clanahan v. Morgan, supra.

The evidence, much of which is without conflict, shows that the property in question was a wooded, unoccupied, vacant, wild area, which had at times been used as a place to dump dirt, rocks, etc., by different persons. Also, certain persons testified that they had gone on the property and removed dogwood trees. The appellees, who have...