Helm v. Griffith

• Decision Date: 10 June 1919
• Docket Number: 6 Div. 362
• Citation: 17 Ala.App. 122,82 So. 570
• Parties: HELM v. GRIFFITH.
• Court: Alabama Court of Appeals

82 So. 570

17 Ala.App. 122

HELM v. GRIFFITH.

6 Div. 362

Court of Appeals of Alabama

June 10, 1919

Rehearing Denied June 30, 1919

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

Suit by Dee Griffith against J.B. Helm. Judgment for plaintiff, and defendant appeals. Affirmed.

Horace C. Wilkinson, of Birmingham, for appellant.

Harsh Harsh & Harsh and W.J. Slaughter, all of Birmingham, for appellee.

BRICKEN J.

This suit was instituted by the appellee, Dee Griffith, to recover damages for the breach of a covenant warranting the title of a certain lot "free from all incumbrances." Judgment was rendered for the plaintiff, and from this judgment the defendant appeals.

Though there are 23 assignments of error in this record, the question of paramount importance is whether plaintiff showed by his evidence that at the time of the delivery of the deed the title of the property conveyed was subject to an outstanding incumbrance, that is, a lien for unpaid taxes for the year 1909.

On May 30, 1910, the defendant executed and delivered to plaintiff a deed, containing the usual covenants of warranty, conveying a lot in the town of Woodlawn. In this deed the lot was described as follows:

"Fronting 95 feet on St. Clair street, 101 feet on Washington avenue, 65 feet on west side, and 101 feet on north side, as shown in G.B. Stephens map, surveyed by P.S Miller, C.E., Dec. 1, 1894, situated in the town of Woodlawn situated in Jefferson county, Ala."

The town of Woodlawn, on January 1, 1910, became merged in the city of Birmingham.

Under the terms of the act of merger, as well as under the provisions of article 7, c. 32, of the Political Code, the city of Birmingham became vested with the right of enforcing in its own name all liens for taxes and special assessments which except for the merger might have been enforced by the town of Woodlawn.

On June 27, 1910, a suit was instituted in the chancery court of Jefferson county by the city of Birmingham against "Unknown Owner," the object of which was to sell for the nonpayment of taxes for the year 1909 a lot described as follows:

"Lot on corner of St. Clair street and Washington avenue, fronting 95 feet on St. Clair street and 101 feet on Washington avenue, being 65 feet on the west side and 100 feet on the north side in G.B. Stephens survey."

These proceedings consisted: First, of an affidavit by the tax collector and treasurer of the city of Birmingham stating that the owner of the lot was unknown and reciting that "same being taxes for the year 1909 in the city of Birmingham, Ala."; second, of an order of publication by the register in chancery stating that the city of Birmingham had filed in court a list of unpaid street improvement assessments, and that in said list was a lot above described, and also reciting that "same being taxes for the year 1909 in the city of Birmingham, Ala.; ***" fourth, of a decree of sale on publication. This decree, after stating that it was shown that the city clerk of the city of Birmingham had made out, certified, and filed with the register in chancery a list describing separately each piece of property situated in the city of Birmingham upon which taxes were due and delinquent, that the register, in accordance with section 1320 of the Code of 1907, had docketed a cause for each assessment appearing on said list, and that an order of publication had been duly made in this cause notifying the owner of the filing of this proceeding against his property, adjudged that the foregoing described lot was liable for taxes in the sum of $2, with interest thereon from the 1st day of January, 1910, and directed the register to proceed to sell the same for taxes, interest, penalties, and costs that had accrued against such property. At the sale made in compliance with this decree this lot was purchased by the Birmingham Loan & Discount Company, from which company the plaintiff received a quitclaim deed upon the payment of $100.

In cases of this sort it is true that the chancery court is exercising a limited and special jurisdiction, and its decrees in such cases stand on the same footing as those of courts of...