Morris v. Card

• Decision Date: 14 May 1931
• Docket Number: 6 Div. 743.
• Citation: 223 Ala. 254,135 So. 340
• Parties: MORRIS v. CARD.
• Court: Alabama Supreme Court

135 So. 340

223 Ala. 254

MORRIS v. CARD.

6 Div. 743.

Supreme Court of Alabama

May 14, 1931

Rehearing Denied June 18, 1931.

Appeal from Circuit Court, Jefferson County; T. J. Bedsole, Judge.

Bill to quiet title by S. H. Card against J. M. Morris, with a cross-bill by respondent. From a decree for complainant respondent appeals.

Reversed and remanded.

O. B Cornelius, of Birmingham, for appellant.

W. A Weaver and J. Wiley Logan, both of Birmingham, for appellee.

THOMAS J.

The original bill by the owner of the land was for redemption from tax title and to quiet title, and the decree was for relief.

The evidence shows chain of title of the vacant lot in the city to complainant, who took possession, fenced, and planted a hedge about the front and sides thereof. The contrary statement of fact as to possession by the respondent-appellant, that he was in possession when he secured a tax deed, claims adverse possession of three years by renting the land for the cutting of grass therefrom for the years 1920, 1921, and 1922, and that said possession began in the "spring of the year" 1920, when he plowed, harrowed, and sowed soudan grass, according to the evidence of J. C. Rogers. Thereafter it grew up in weeds that were cut by defendant.

The agreed statement of facts shows regular chain of title from the Edgewood Land Company to complainant, and that the company was in possession when the conveyance was made to W. J. Hancock in 1913; he conveyed to Brazelton the same year, the latter to Cheeseman in 1914, then to the State Building & Loan Association, and then to Brazelton, which latter conveyance was of record prior to the sale for taxes and the tax deed, and he was the owner at the time of the tax sale for the 1916 taxes. The taxes for the years 1912 to 1915, inclusive, were assessed and paid by the Edgewood Land Company. It is further shown by the agreed statement of facts that the Brazeltons sold and conveyed to appellee Card in 1929. The lot was assessed and taxes paid for the years indicated by the Edgewood Land Company, and was not included in the assessments by Card, the Brazeltons, State Building & Loan Association, Cheeseman, or Hancock.

It is recited:

"On December 28, 1914, Nina H. Brazelton and husband, by Warranty Deed conveyed the lot to S. H. Cheeseman, which was recorded in Deed Book 807, page 309.

"On December 29, 1914, S. H. Cheeseman and husband, conveyed the lot to State Building & Loan Association, which deed was recorded in Deed Book 807, pages 311-312. On July 8, 1915, State Building & Loan Association by deed conveyed the lot to N.H. Brazelton by deed recorded in Volume 821, page 426, which conveyance was the last conveyance as shown by the records of conveyances in this County, prior to the tax sale, and N.H. Brazelton, who is the same person as Nina H. Brazelton named in this agreement, at the time of the tax sale, was the record owner.

"On November 30, 1929, Mrs. N.H. Brazelton and husband, G. T. Brazelton, conveyed to S. H. Card, the complainant, the lot, a copy of which deed is marked Exhibit 'E' to defendant's answer and cross-bill, and mailed the deed from Washington; D. C. soon thereafter to the complainant in Birmingham, Alabama. ***

"D. E. McClendon was Tax Assessor of Jefferson County, Alabama, in 1916, and it is agreed that he would testify he did not know the owner of the lot, and that as Tax Assessor, he knew or learned that the lot was subject to taxation in Jefferson County, Alabama, and was not embraced in any return made to him prior to the First Monday in February, 1916, by any tax payer, and that as Tax Assessor, he made a demand upon Edgewood Land Company, a corporation, who resided in Jefferson County, Alabama, the company to whom the property was last assessed. Prior to assessing the lot to 'owner unknown,' the Tax Assessor gave notice to Edgewood Land Company that taxes for the year 1916 had not been assessed and when he made the assessment to 'owner unknown' in 1916 the Tax Assessor did not know who the owner was, but only knew who the last owner was, according to the former assessment and made an effort to find out who the true owner was, according to the then regular system of doing those things in said Tax Assessor's office in 1916. That the Tax Assessor did not handle this particular matter and does not have any independent recollection of this matter, except as a general course of business in his office, and that the system was a check system by which the Tax Assessor's office force would check every lot to the party who assessed it and when the clerical force completed the checking of the assessments, the force then went over the check books and any lot not assessed the office force referred back to the assessment to see if the lot was overlooked and finding it not assessed to the Edgewood Land Company, the Tax Assessor's office notified them, and that the Tax Assessor had no other way he could go about locating the owner except to look at the records of those who formerly assessed it, which was as far as they went, and which was the method used as to this particular lot; and, Edgewood Land Company failed to assess the property for 1916 after notice to do so by the Tax Assessor, and the Tax Assessor listed the lot to 'Owner Unknown' after the first Monday in February 1916."

It is further recited that no defense was interposed and a decree of sale was made after due notice and appellant was purchaser; that the tax collector delivered to respondent a certificate of purchase to said lot, and "on July 21, 1919, the land had not been redeemed and the defendant surrendered his certificate of purchase to the Judge of Probate, who executed and delivered to him a deed to the lot"; that "the defendant has regularly assessed each year since purchase at the Tax Sale in 1917, the land in question, and has paid the assessments for State and County each year up to the present time, and the land is regularly assessed for the current tax year by the defendant. Complainant nor N.H. Brazelton have ever assessed or paid taxes on said lot."

It is further agreed that a correct copy of the record of tax sales is exhibited; that defendant regularly assessed same for taxes since his purchase in 1917 and for the current year, the year in which the bill was filed; that there were also assessments for street and sidewalk improvements paid by respondent that are not questioned.

The decree allowed redemption by the original owner from the purchaser at state tax sale, and required no payment of the amount of sidewalk and street improvements assessed as asserted in the answer of the original respondent.

The prayer, among other things, was:

"*** That Your Honors will decree that this defendant and cross-complainant was and is rightfully in possession of said lot under and by virtue of said tax deed, and that he is entitled to possession thereof, and has a lien on said land for all taxes, State and County and Municipal, either ad valorem or for public improvements, as aforesaid, with lawful interest thereon, and a reasonable attorney's fee for defending defendant's said tax title.

"Further, that the Court will by said decree adjudicate what, if any, right, title, interest or demand the complainant has in and to said land, and what, if any, right, title, interest, claim and demand this defendant and cross-complainant has in and to said land, and will by said decree finally adjudicate defendant's title therein to be paramount and superior to complainant's said title."

The warning sign erected on a post by appellant merely evidenced a claim of possession or title-not of actual, peaceable possession. Jordan v. McClure Lumber Co., 170 Ala. 289, 310, 54 So. 415. The testimony of a witness, as a collective fact, that he is in possession, is sufficient evidence of possession, if it is not further shown on cross examination that the statement was a mere conclusion without the required supporting fact. Sovereign Camp, W. O. W. v. Hoomes, 219 Ala. 560, 564, 122 So. 686, and authorities there cited. Tendencies of evidence that the land was generally known as that of appellant were insufficient. It is the rule that ownership and possession of land cannot be proved by general notoriety nor by reputation. Doe ex dem. Hooper v. Clayton, 81 Ala. 391, 400, 2 So. 24; Shelton v. Stapler, 219 Ala. 15, 121 So. 34.

The tax sale was June 20, 1917, the deed of date of July 31, 1919, the planting of grass by Rogers in the spring of 1920 in the "latter part of April or the first of May," and suit brought in 1929. Does the evidence show respondent in possession for the period of the statute? It was provided by General Acts of 1915, p. 474, § 239; Code 1923, § 3107, that "no action for the recovery of real estate sold for the payment of taxes shall lie, unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor." Loper v. E. W. Gates Lumber Co., 210 Ala. 512, 98 So. 722. Section 3108, Code of 1923, conferred an additional right of redemption in cases where valid tax titles have been made and the original owner remains in possession, and such right is not subject to the two years' limitation for redemption as provided by section 3109, Code. Green v. Stephens, 198 Ala. 325, 73 So. 532; Burdett v. Rossiter, 220 Ala. 631, 127 So. 202; Bell v. Propst, 220 Ala. 641, 127 So. 212.

And by the terms of the statute (section 3108) when the owner is sued by the holder of tax title, that defendant may have ascertainment of the amount required to redeem, and pay same. Green v. Stephens, supra. The owner remaining in possession need not wait for suit, but may precipitate the litigable questions for decision by a bill to quiet title under the...