Loper v. E. W. Gates Lumber Co.

• Decision Date: 20 December 1923
• Docket Number: 1 Div. 229.
• Citation: 210 Ala. 512,98 So. 722
• Parties: LOPER v. E. W. GATES LUMBER CO.
• Court: Alabama Supreme Court

98 So. 722

210 Ala. 512

LOPER v. E. W. GATES LUMBER CO.

1 Div. 229.

Supreme Court of Alabama

December 20, 1923

Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.

Action in ejectment by the E. W. Gates Lumber Company against M. V Loper. From a judgment for plaintiff, defendant appeals. Affirmed.

Granade & Granade and Wallace P. Pruitt, all of Chatom, for appellant.

Stevens McCorvey, McLeod & Goode, of Mobile, and Joe M. Pelham, Jr. of Chatom, for appellee.

MILLER J.

This is a statutory ejectment suit (following Code form No. 29, p. 1200, vol. 2, Code 1907), instituted by E. W. Gates Lumber Company, a corporation, against M. V. Loper, to recover possession of lots 8 and 10 in block 8, in the town of Yellow Pine, Washington county, Ala. The suit was originally filed against Matt Loper, and on the complaint was indorsed the fact that Matt Loper was the tenant of M. V. Loper, requesting that a copy of the summons and complaint be served on the landlord. The landlord, M. V. Loper, appeared as sole defendant in the cause, and filed pleas to the complaint. The jury returned a verdict in favor of the plaintiff for the land, and from a judgment thereon by the court the defendant prosecutes this appeal.

The defendant filed three pleas to the complaint; the first was general issue; the second stated "the defendant defends under a tax sale of May 29, 1916," which latter plea on motion of the plaintiff was stricken by the court from the file. These facts under section 236, p. 474, Gen. Acts 1915, are sufficient to entitle the defendant to the benefits of section 234 of the act when incorporated in a good plea; but they are insufficient as a plea setting up a tax title as a defense to an action in ejectment, which it attempts to do. If these facts are stated in a good plea setting up a tax title to the complaint and the defense fails on the ground the sale is invalid for any other reason than that the taxes were not due, then the defendant would be entitled to the benefits of section 282, p. 365, Acts 1919, which is the same as section 234, p. 473, Acts 1915. The court did not err in striking it from the file as a defense to the cause of action stated in the complaint. Gen. Acts 1919, p. 365, § 284; Gen. Acts 1915, p. 474, § 236.

Plea 3, as originally filed, stated defendant "saith that this action is barred by the statute of limitations of three years." This plea fails to allege defendant claims the land under a tax sale; there is nothing in the plea showing wherein the 3-year statute applies to an ejectment suit; and the demurrers to it were properly sustained by the court. Section 239, p. 474, Gen. Acts 1915; section 287, p. 366, Gen. Acts 1919. This plea (3) as amended failed to aver the defendant had been in actual possession of the land under his tax title sufficient time prior to the commencement of this suit to invoke the 3-year statute of limitations. Gen. Acts 1919, p. 366, § 287; Gen. Acts 1915, p. 474, § 239; Long v. Boast, 153 Ala. 428, 44 So. 955.

This suit was commenced on May 9, 1921. Plea 3 as amended avers the defendant purchased said land at tax sale held on May 29, 1916; and the defendant, the purchaser, under the statute (section 218, p. 468, Acts 1915), after the expiration of 2 years from May 29, 1916, became entitled to demand a deed therefor from the probate judge. Section 218, p. 468, Gen. Acts 1915. The statute of limitations does not begin to run in favor of the purchaser at a tax sale until the purchaser is in actual adverse possession of the land, and until the day "when the purchaser became entitled to demand a deed therefor." This statute begins to run on the day when the purchaser became entitled to demand a deed for the land, if the purchaser was then in actual adverse possession of the land. Section 2311, Code 1907; section 239, p. 474, Gen. Acts 1915; Bedsole v. Davis, 189 Ala. 325, 66 So. 491; Long v. Boast, 153 Ala. 428, 44 So. 955; Tidwell v. McCluskey, 191 Ala. 38, 67 So. 673.

Two years after May 29, 1916, the date of the tax sale, would be the time the purchaser could demand under the statute a deed to the land. Three years could not elapse between the date the right to demand a deed existed and May 9, 1921, the date when this suit was commenced. So it affirmatively appears from the plea and the filing of this suit that the defendant could not have had actual possession of the land for 3 years after he was entitled to demand a deed to it, and before this suit was commenced. The court did not err in sustaining demurrers to this plea as amended. Authorities, supra.

Plea 3 was again amended to read as follows:

"That plaintiff is not entitled to recover against defendant for the lands sued for, in that defendant purchased said lands at a tax sale held for Washington county, Ala., on May 29, 1916; that he took possession on, to wit, January 1, 1917, thereof, and has continued in actual open and notorious possession thereof under claim of owner and against the whole world for the period of 3 years prior to the commencement of this action, and that 3 years have elapsed since the time this defendant became entitled to demand a deed therefor, and the filing of this suit."

The plaintiff demurred to this plea as last amended, because it fails to aver the defendant has been in actual and continuous adverse possession of the land under tax sale for 3 years, and prior to the commencement of this suit. The demurrers of plaintiff to it raised the question, but the court overruled them. The plaintiff obtained judgment, so the sufficiency of this plea is not before us on the pleading. Authorities, supra.

To this plea the plaintiff replied: (1) General issue; (B) the owner of the real estate sold had paid the taxes for the payment of which said real estate was sold prior to the sale; and (3) "that the plaintiff was the owner of the real property sued for, and as such owner of the real property had paid the taxes, for the payment of which said property was sold prior to such sale. Demurrers to these replications B and 3 were overruled by the court. In these rulings the court did not err. They were not subject to the demurrers assigned to them. The provisions of the statute invoked by the plea (section 239, p. 474, Gen. Acts 1915, which is the same as section 287, p. 366, Gen. Acts 1919, p. 366), do not apply to cases in which the owner of the real estate sold had paid the taxes for the payment of which such real estate was sold prior to such sale. Section 239, p. 474, Gen. Acts 1915.

It clearly appears from the evidence that these lots 8 and 10 in block 8, described in the complaint, are situated in the northeast 1/4 of northeast 1/4 of section 13, township 5, range 5, in Washington county. The patent from the United States government to Hiram M. Sullivan conveying to him the northeast 1/4 of section 13, township 5, range 5, in said county, dated June 23, 1898, was relevant and competent evidence. Hiram M. Sullivan and wife, Dorcas R. Sullivan, by deed, dated September 11, 1900, conveyed this land, northeast 1/4 of section 13, township 5, range 5, to the Yellow Pine Lumber Company, a corporation.

The name of Mrs. Sullivan appears in the body of the deed as Dorcus R. Sullivan, in the general acknowledgment as Dorcas R. Sullivan, but in the separate acknowledgment as Corcas R. Sullivan, and she signed the deed "Dorcus R. Sullivan." For these reasons the defendant objected to its introduction in evidence. The acknowledgments, general and separate, are in the form prescribed by the statute. The wife of the grantor, Dorcus R. Sullivan, signed the deed; it clearly appears she was known to the officer, and she made both acknowledgments to her signature to the deed before the officer, and therefore this clerical error in stating her name in the body of the deed and in the acknowledgments will not invalidate the instrument. The deed was competent evidence to go to the jury. Middlebrooks v. Stephens, 148 Ala. 230, 41 So. 735; Shelton v. Aultman, 82 Ala. 315, 8 So. 232; Powers v. Hatter, 152 Ala. 636, 44 So. 859; sections 4161, 3361, Code 1907.

The plaintiff also offered in evidence a deed from the Yellow Pine Lumber Company, a corporation, to the Yellow Pine Company, a corporation, dated July 20, 1902, conveying all of the real property owned by it in Washington county, Ala. It is signed by the grantor by its president, attested by its secretary, and acknowledged by the president and secretary of the corporation. The plaintiff offered in evidence a deed dated March 9, 1904, made by the Yellow Pine Company to the plaintiff, conveying other lands, together with the northeast 1/4 of section 13, township 5, range 5, in Washington county, Ala., which deed was signed by the corporation by its president and attested by its secretary, and duly acknowledged. These last two deeds were duly filed and recorded within 12 months after their execution. They were competent and material evidence in the case, and the court did not err in admitting them in evidence.

The plaintiff proved an unbroken chain of title to the lots sued for, and possession, actual or constructive, or both, of the lots for 14 to 16 years after it purchased the property in 1904, and the reasonable rental value of it while detained by the defendant. This proof of title in and possession of the lots by plaintiff prior to the commencement of the suit, and its rental value, made out a clear, prima facie right to recover the property. The plaintiff by its evidence shows a legal title to the lots with the right of immediate possession of the property when the suit was commenced. This cast the burden of proof...