Georgia Loan & Trust Co. v. Washington Realty Co.

• Decision Date: 03 February 1921
• Docket Number: 6 Div. 190.
• Citation: 205 Ala. 288,87 So. 794
• Parties: GEORGIA LOAN & TRUST CO. v. WASHINGTON REALTY CO.
• Court: Alabama Supreme Court

87 So. 794

205 Ala. 288

GEORGIA LOAN & TRUST CO. v. WASHINGTON REALTY CO.

6 Div. 190.

Supreme Court of Alabama

February 3, 1921

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by the Georgia Loan & Trust Company against the Washington Realty Company to quiet title to land, and for other purposes as noted in the opinion. From a decree sustaining demurrers to the bill, complainant appeals. Reversed, rendered, and remanded.

Joseph T. Collins, Jr., of Birmingham, for appellant.

C.B Powell, of Birmingham, for appellee.

MILLER J.

This bill of complaint was filed October 15, 1918, by the appellant, who was the complainant, against Washington Realty Company, under section 5443 of the Code of 1907.

It describes a lot of land, avers complainant is in peaceable possession of it, claiming title to or ownership of it, in its own right at this time; and the defendant is reputed to claim some title or interest in it, and that no suit is pending to enforce or test its validity.

It avers the lot was owned by A.L. Finney on May 1, 1912, and that he and his wife that day executed to complainant a mortgage thereon to secure a loan. This mortgage was duly foreclosed on July 3, 1917, and complainant purchased the lot at the sale. The mortgage and foreclosure deed were duly recorded in the probate office of Jefferson county, Ala.

The bill does not stop here, and pray for appropriate relief and process. If it did, it would comply with section 5443 of the Code of 1907, and its sufficiency would probably never have been questioned by demurrer. The bill goes further, and avers that this lot was sold for state, county, and municipal taxes, with other property not involved in this suit, on June 18, 1914; and at the tax sale the defendant purchased the lot and other property for $58.35, amount of taxes, penalties and costs for the year 1913 due thereon; that on July 25 1916, in pursuance of said tax sale, a tax deed, conveying the lot and the other property, was made to the defendant for said sum; that on October 15, 1918, complainant tendered to defendant $95 to pay all taxes, damages, costs, and interest paid by him. Defendant refused it. Complainant submits itself to the jurisdiction of the court, and offers to do, and avers ability to pay, whatever may be legally due defendant.

The defendant demurs to this bill of complaint, in substance because it does not contain equity; it shows on its face the defendant is the owner of the land; it shows complainant is guilty of laches, which bars this suit; and that the amount tendered was not sufficient.

The court below sustained the demurrers to the bill of complaint, and this decree is now assigned as error.

Real estate sold for taxes may be redeemed at any time within two years from the date of the sale by any mortgagee or purchaser of such land. Section 2313, Code 1907, as amended by section 241, Act of 1915, p. 475.

On the face of this bill it looks like complainant is barred of its right to redeem in the manner prescribed by statute. The bill was filed October 15, 1918, the lot was sold for taxes June 18, 1914, and the tax deed was executed July 25, 1916. This was more than four years after the tax sale, and more than two years after the tax deed was executed. But the bill does not aver that the tax sale and tax deed were based on a valid decree of sale by a court of competent jurisdiction after the lot...