Montgomery v. City of Florence

• Decision Date: 23 March 1933
• Docket Number: 8 Div. 479.
• Citation: 226 Ala. 340,146 So. 882
• Parties: MONTGOMERY, Superintendent of Banks, v. CITY OF FLORENCE.
• Court: Alabama Supreme Court

146 So. 882

226 Ala. 340

MONTGOMERY, Superintendent of Banks, v. CITY OF FLORENCE.

8 Div. 479.

Supreme Court of Alabama

March 23, 1933

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Bill for redemption by H. H. Montgomery, State Superintendent of Banks, liquidating the Alabama Trust & Savings Bank, against the City of Florence. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed.

Bradshaw & Barnett, of Florence, for appellant.

W. H Mitchell, of Florence, for appellee.

FOSTER Justice.

This is a bill in equity to enforce the statutory right of redemption of property sold by virtue of section 2217, Code (as amended by Gen. Laws 1927, p. 770), for the failure to pay an assessment for street improvement under article 33, chapter 43, sections 2174-2237, Code (as amended by Gen. Laws 1927 pp. 754-773). The right of redemption is secured by section 2221 (as amended) and section 2143, Code. The bill shows that lots 6, 8, 9, 10, and 12, block 472, and south half of lot 1, block 484, in Florence, were included in a single assessment for such improvement, and it was made to one person as owner; that said lots were all the same size and adjoin consecutively; that each was enhanced in value by reason of the improvement in the same proportion as every other; that upon default there was a single sale of them all, bought in by the city for a single sum.

Complaint alleges that it has acquired one of the lots, and seeks to redeem that one (lot No. 6) by paying a proportionate share of the total sum necessary to redeem. Authority to redeem one lot, and not all of them, and to pay only the proportionate amount necessary to redeem all, is claimed under section 3112, Code. That section makes such provision for a redemption from tax sale under one decree. But the succeeding sections show how it is to be done, through the probate office with the approval of the auditor, etc. Whereas sections 2221 and 2143, here applicable, do not contain or refer to provisions similar to those in section 3112 et seq. But we do not think it important here definitely to make a holding in that respect. For, assuming that section 3112 et seq. is pertinent here, and that chancery court is sufficiently elastic to provide the machinery equal in effect to those provisions, we think appellant is not entitled to the redemption as sought.

Appellant claims that the assessment should have been made separately in respect to each lot (section 2190, Code, as amended by Gen. Laws 1927, p. 764), and that he should have the same separate right of redemption as though the city had complied with that section, and cannot defeat a redemption of each separate lot by its own breach of duty.

But the fact that the property is described by reference to lot numbers in a certain survey is not conclusive that the tract described by the several lot numbers is not one "lot or parcel" within the contemplation of section 2190 (as amended) or 3112. The single owner of them, all adjoining could very well combine them all "as one lot or parcel" for his own purposes. Taken all together as a single parcel, he may conclude that they are more valuable for sale or improvement than if they each were sold or improved separately. This is his privilege, if he so desires. The several lot numbers would then describe but one lot or parcel. Those numbers are only descriptive of the property, and, while th...