Gunter v. Townsend

• Decision Date: 23 March 1918
• Docket Number: 3 Div. 289
• Citation: 79 So. 644,202 Ala. 160
• Parties: GUNTER v. TOWNSEND et al.
• Court: Alabama Supreme Court

79 So. 644

202 Ala. 160

GUNTER v. TOWNSEND et al.

3 Div. 289

Supreme Court of Alabama

March 23, 1918

Rehearing Denied May 9, 1918

Appeal from Circuit Court, Montgomery County; E.R. Beckwith, Special Judge.

Bill in equity to remove cloud from title by Charles P. Gunter against George W. Townsend, Josie Walker, and Sadie Shelton and others. Decree for respondents Walker and Shelton, and complainant appeals. Decree affirmed.

W.A Gunter, of Montgomery, for appellant.

Rushton Williams & Crenshaw and James S. Edson, all of Montgomery for appellees.

THOMAS J.

The bill was to clear title of clouds. The determination of the questions presented for decision requires: (1) The construction of the limitation contained in section 2296 of the Code of 1907, as to the deed of the judge of probate to the purchaser at a tax sale, and (2) the construction of certain of the provisions of the will of Sarah J. Allsop, deceased.

It is averred in the pleading that the children of said testator to whom property was devised and bequeathed were Emmie Townsend, Josie Walker, and Walter J. Allsop, who are still living; that Mary E. Shelton has since died, leaving as her only child, respondent Sadie Shelton; and that in April, 1916, the said Emmie Townsend conveyed to respondent all of her interest in said properties so devised and bequeathed by said will to her. It is further averred in the answer of respondent Walker that in the event of the death of Walter J. Allsop without children said respondent "will be entitled to a two-thirds undivided interest in the property described in the bill of complaint," and a like averment as to an undivided one-third interest in such property being in Sadie Shelton as the only child of Mary E. Shelton, deceased, is contained in the answer of said Sadie. The special judge decreed that "respondents Josie Walker and Sadie Shelton are the owners of the two-thirds and one-third interests, respectively, in vested remainder, to take effect in possession after the death of Walter J. Allsop."

Complainant's title was derived by mesne conveyances from purchasers at tax sales, respectively, for state, county, and municipal taxes due by the said Walter J. Allsop or his trustees; the municipal taxes due being for the year 1910 or years preceding, and the state and county taxes for the year 1912. The complainant's title dated from January 11, 1913, through deed from the purchasers at said tax sales. The bill avers that complainant has since been "in the peaceable possession" of the lands; that he "found it necessary to improve the same and has done so; *** that respondents claim some interest in the said property; and that no suit is pending to determine and settle the title to said land."

It may simplify the questions for determination to first consider the legislative intent in the enactment of section 2296 of the Code, or of the concluding paragraph thereof, limiting the effect of a deed by a judge of probate to lands purchased at a sale for state and county taxes. A full understanding of this statute can be had only by a reference to its legislative history. Acts, 1884-85, pp. 21, 59, §§ 113, 114. Prior to this act of February 17, 1885, a sale of lands for unpaid taxes was held to be a sale of the fee, and not of the taxpayer's interest only. The declaration in Thorington v. Montgomery, 88 Ala. 548, 553, 7 So. 363, was that the failure to pay tax by a tenant for life may result in a sale of the entire estate, and that the assessed taxes were a lien on the land itself, as well as a legal liability of the taxpayer.

Theretofore, in Jones v. Randle, 68 Ala. 258, where the quantum of interest acquired by a purchaser at a tax sale of real estate was for decision, it was declared that the statement of law contained in Dyer v. Branch Bank of Mobile, 14 Ala. 622, that at the sale of lands assessed to a person whose duty it was to pay the taxes for the given year the purchaser acquires "only the interest of such person," was not a proper construction of the statute then of force, but that such purchaser "acquires the fee." It is to be noted that Jones v. Randle, supra, was decided at the December term, 1880, of this court, and that in 1882 this announcement was adverted to by Mr. Justice Somerville, with the observation that:

"It may be true that a purchaser at a valid tax sale acquires, not only the interest or right of the owner of the land to whom it is assessed, but good title to the land itself, free from claims of all persons." Randle, Adm'r, v. Boyd, 73 Ala. 282, 287.

To render nugatory this construction of the statute by an act for "the assessment and collection of taxes for the use of this state and the counties thereof," etc. (Gen.Acts, 1884-85, pp. 21, 59, §§ 113, 114), the Legislature provided for the execution of a deed by the probate judge, conveying to the purchaser at tax sale "all the right, title and interest of the person or persons whose duty it was to pay the tax on said land," but not conveying the "right, title or interest of any reversioner or remainderman in said land." In section 114 is embodied the provision that such deed shall vest in the purchaser "all right, title, interest and estate of the former owner, in and to the land conveyed." The two sections define such "former owner" to be the person who had the primary duty of assessment and payment of the taxes, and thus by exclusion not a reversioner or remainderman of the legal or equitable estate. No other fair interpretation can be given this statute so soon enacted after the announcement in Jones v. Randle, supra, and the inquiry in Randle, Adm'r, v. Boyd, supra. As to reversioners and remaindermen, it was a re-enactment of the just rule announced by Chief Justice Collier in Dyer v. Branch Bank of Mobile, supra. This was:

"If the persons in possession *** were liable to pay the tax for that year, their interest only could have been sold to enforce its payment; and if the defendant had a paramount title, dating back to a time previous, its right could not be impaired by the sale."

Dyer's Case is the sole authority for the text in Cyclopaedia of Law and Procedure:

"If the laws contemplate only the sale and transfer of the title or interest of the person in whose name the property was assessed, the purchaser at a tax sale will become invested with precisely the same title which was held by the delinquent taxpayer. ***" 37 Cyc. 1474.

Such is the rule in other jurisdictions. Hopper v. Malleson, 16 N.J.Eq. 382; Powell's Case, 95 Mo. 13, 8 S.W. 176; Morrow v. Dows, 28 N.J.Eq. 459; Nashville v. Cowan, 10 Lea (Tenn.) 209; Yenda v. Wheeler, 9 Tex. 408; Stansbury v. Inglehart, 9 Mackey (D.C.) 134; White v. Portland, 67 Conn. 272, 276, 34 A. 1022; Payne v. Arthur, 29 S.W. 860, 16 Ky.Law Rep. 784; Dunn v. Winston, 31 Miss. 135; Coucy v. Cummings, 12 La.Ann. 748; Hardenbergh's Case, 4 Johns. (N.Y.) 390; Estabrook v. Royon, 52 Ohio St. 318, 39 N.E. 808, 32 L.R.A. 805; Ferguson v. Quinn, 97 Tenn. 46, 36 S.W. 576, 33 L.R.A. 688, 693.

Appellant insists that there are no exemptions in section 1326 as there are in section 2296 of the Code. For a full understanding of section 1326, we must have recourse to Act Aug. 13, 1907, p. 790, § 107 et seq. There it was provided that cities and towns "may levy taxes upon property and all subjects of taxation liable therefor"; that objections to assessments may be made and heard by the board of assessors for the municipality (said act,§ 107; Code, § 1311); that after a valid assessment has been corrected by the council or board "it has the force and effect of a judgment against the property, or against the person owning the same, and after delinquency may be enforced by an execution *** levied upon the personal property of the person against whom such taxes were assessed, or against the property *** so assessed for taxation." The Act, § 108; Code, § 1313; Town of Albertville v. Hooper, 196 Ala. 642, 72 So. 258. This statute further provides (Act, § 109; Code, § 1314) that the municipality "shall have a lien for taxes upon all property assessed for taxation, which shall be superior to all other liens, except for taxes held by the state and county"; and the purchaser receives such title upon his purchase at the sale of personal property. Code, § 1315.

The procedure for a sale is (Code, § 1319) that within a designated time after the taxes become delinquent a list shall be made out and certified by the clerk of the municipality, "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"; such list of delinquents shall be filed with the register in chancery, and entered upon a docket which shall show "the amount of the taxes sought to be collected, a description of the property, and the name of the owner, if known"; summons is required to issue, as in chancery cases, "containing a description of the property, notifying each owner of the filing of the proceedings against his property," which "shall *** be executed by the sheriff" (Act, § 110; Code, § 1320) or service of which shall be perfected by publication to unknown owner, which shall give "a list of the property assessed to owners unknown," and the same as to persons for whom a summons has been returned "not found" (Code, § 1321). After perfection of service "without further proof a final decree shall be made by the chancellor or judge of said court, adjudging such property liable for such taxes," and directing the register to sell such property for the payment of the taxes. If defense to the sale is made by the owner, the court is required to give...