Hargett v. Franklin County

• Decision Date: 22 January 1925
• Docket Number: 8 Div. 705
• Citation: 103 So. 40,212 Ala. 423
• Parties: HARGETT v. FRANKLIN COUNTY et al.
• Court: Alabama Supreme Court

103 So. 40

212 Ala. 423

HARGETT v. FRANKLIN COUNTY et al.

8 Div. 705

Supreme Court of Alabama

January 22, 1925

Appeal from Law and Equity Court, Franklin County; B.H. Sargent Judge.

Bill in equity by C.W. Hargett against Franklin County and R.P Millican. From a decree sustaining demurrer to the bill complainant appeals. Affirmed.

J. Foy Guin, of Russellville, for appellant.

Williams & Chenault, of Russellville, for appellees.

THOMAS J.

The appeal is from the decree sustaining demurrers to the bill praying ascertainment and allowance of "a reasonable compensation for the right of way" over complainant's land "and *** other damages and injuries suffered by the complainant"; that a "money judgment against both respondents be rendered"; and that the respondent county of Franklin "be forever enjoined and restrained from the use of said right of way until said judgment and the costs of suit are paid in full."

The averments of the bill are that complainant had mortgaged his lands to respondent Millican, who duly foreclosed the same under the powers of sale contained therein, and became the purchaser; that possession was demanded and surrendered and attornment made to such purchaser; that redemption was perfected under the statute against Millican; that--

"Between the date of foreclosure and the date of redemption the respondent Millican made and delivered to Franklin county a deed of conveyance, purporting to convey to said county a 50-foot right of way across said land for a public road, same bearing date of the 8th day of May, 1923; a copy of which is hereto attached marked Exhibit E and made a part of this bill. Notwithstanding the proper officials of the county were informed that the complainant had rights of redemption in said land, and that the title of said Millican would fall upon said redemption, and notwithstanding that they had no conveyance from the complainant, and had made no effort to secure any conveyance from him, and notwithstanding that Franklin county is clothed with the power of eminent domain, the county, by its officers, servants, or agents, proceeded to go into possession of said 50-foot strip across said tract of land, same running diagonally across the same, and to build a public highway thereon and thereover, without in any manner compensating or attempting to compensate this complainant therefor."

It is further averred that complainant is the owner of the fee to the road bed in question and of the alleged right of way; that the county maintains "a public road there along" (italics supplied), and claims the right of way in disregard of complainant's rights in the premises, and has taken the same "without process of law." It is further alleged that in the building of the public road the county caused to be removed from "its purported right of way" a barn for which complainant has not been compensated; that he duly filed a written claim for this property and damages with the court of county revenue of Franklin county, which was "disallowed" by that body; and that thereupon he "withdrew his said claim, and now files this suit to compel payment."

It is of statutory declaration that no estate or interest of any person can be defeated, discontinued, or extinguished by the act of any third person having a possessory or ulterior interest, except in cases specially provided by law (Code 1907, § 3406; Tulley v. Snow, 190 Ala. 556, 68 So. 301); nor by the widow (Reynolds v. Love, 191 Ala. 218, 68 So. 27); nor the life tenant. The estate held by Millican after his purchase at foreclosure sale, and before expiration of the time for statutory redemption, was that of the fee (Morrison v. Formby, 191 Ala. 104, 67 So. 668), and determinable by the exercise of a personal and statutory privilege by the mortgagor (Baker, Lyons & Co. v. Eliasburg, etc., Co., 201 Ala. 591, 79 So. 13), a redemption of the property (Toney v. Chenault, 204 Ala. 329, 85 So. 742; Code 1923, § 10140, notes). That is to say, by its deed from Millican to the right of way as such the county obtained the rights, title, and interest possessed by that grantor, and no greater right, title, or interest. Arnold v. Black, 204 Ala. 632, 87 So. 170; 3 Pom.Eq.Jur. (4th Ed.) § 1048.

The statutory redemption alleged must have been effected under the amended statute of force at the time. Code 1907, §§ 5746, 5748; Acts 1911, p. 391. Redemption operates on the legal title, and is against such holder. Hamilton v. Cody, 206 Ala. 102, 89 So. 240. Under that statute, written "demand for charges" may be made by any one entitled to redeem "of the purchaser, or if said real estate has been sold such demand may be made upon either the purchaser or his vendee." (Italics supplied.) In Brannan v. Adams, 202 Ala. 442, 80 So. 826, it was declared that a demand duly made on the purchaser's vendee was sufficient. In that case the whole premises had been conveyed after foreclosure. Where there was "demand" made upon the purchaser at foreclosure sale, and not upon his several grantees who claimed an interest by subsequent executory contracts of sale, it was held sufficient, since the statute provided for a demand upon the party holding the legal title, and not upon mere contract purchasers. Morrison v. Formby, 191 Ala. 104, 67 So. 668; Snow v. Montesano Land Co., 206 Ala. 310, 311, 89 So. 719; Hamilton v. Cody, 206 Ala. 102, 89 So. 240; Lacy v. Fowler, 206 Ala. 679, 91 So. 593.

It is further declared that redemption cannot be effected by "piecemeal," but of the entire tract sold ( Slaughter v. Webb, 205 Ala. 334, 87 So. 854; Francis v. White, 166 Ala. 409, 410, 52 So. 349; Cowley v. Shields, 180 Ala. 48, 60 So. 267; Harden v. Collins, 138 Ala. 399, 35 So. 357, 100 Am.St.Rep. 42; Prichard v. Sweeney, 109 Ala. 651, 19 So. 730; Roulhac v. Jones, 78 Ala. 398); that, where the lands have been broken into separate tracts or lots in the foreclosure, the mortgagor may maintain a bill in equity against the purchaser of a parcel for redemption, without bringing in the purchasers of the other parcels and prayer for "a single conjoint redemption of both parcels" (Lord v. Blue, 200 Ala. 521, 76 So. 463; Snow v. Montesano Land Co., 206 Ala. 310, 89 So. 719; Johnson v. Williams [[Ala.Sup.] 102 So. 527).

It is established that the averment, in a bill to redeem, that the purchaser at an execution sale has conveyed some of the parcels of land to other persons is sufficient excuse for a failure on the part of the redemptioner to pay or tender to the purchaser or his vendee the amount required to effectuate redemption, when, by the subsequent acts of the purchaser, he has put it beyond the power of the...