National Fireproofing Corporation v. Hagler

• Decision Date: 15 December 1932
• Docket Number: 6 Div. 234.
• Parties: NATIONAL FIREPROOFING CORPORATION v. HAGLER.
• Court: Alabama Supreme Court

145 So. 421

226 Ala. 104

NATIONAL FIREPROOFING CORPORATION v. HAGLER.

6 Div. 234.

Supreme Court of Alabama

December 15, 1932

Rehearing Denied Jan. 27, 1933.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill to quiet title by the National Fireproofing Corporation against P. L. Hagler, alias Haigler, and cross-bill by respondent. From the decree, complainant appeals.

Corrected and affirmed.

William S. Pritchard and Thos. H. Fox, both of Birmingham, for appellant.

Arthur L. Brown, of Birmingham, for appellee.

KNIGHT J.

Bill filed by the National Fireproofing Corporation against P. L Hagler to quiet title under the provisions of section 9905 of the Code. The bill contains all necessary averments to make it present a proper case for determination of the issues involved by a court of equity. Its sufficiency was not questioned, nor tested by demurrer.

To this bill, the defendant, Hagler, filed answer and cross-bill. In his answer and cross-bill, the cross-complainant set up title, legal and equitable, to the property in question. It is made to appear from the cross-bill that Hagler purchased the property at a tax sale, made after due assessment of the property for taxes, default in the payment of same, and a valid order of sale. Regularity in the assessment advertisement, order of sale, and sale of the property is fully averred and shown by the averments of the cross-bill.

In short the cross-bill contains all the essential averments of an original bill to quiet title. The complainant in the original bill demurred to the cross-bill upon numerous grounds, but the demurrer was overruled. The correctness of the court's ruling in overruling this demurrer is not assigned for error. With its demurrer overruled, the complainant then filed its answer to the cross-bill. This answer was filed on June 8, 1932. On the same day, the complainant, the National Fireproofing Corporation, filed motion in the following language:

"Now comes the complainant in the above styled cause and would respectfully represent and show unto the court as follows:

"1. That complainant is a vendee and/or transferee and/or grantee of the party who was the owner of the lands in question at the time of the tax sale described in the answer and cross-bill of the respondent in the above styled cause, filed herein.

"2. That complainant is in the possession of and has been continuously in possession of the said lands since it became the owner thereof, and that its predecessors in title were continuously in the possession thereof during the respective periods of time when such predecessors were the owners thereof; that the respondent is not now and never has been in the possession of said lands.

"Wherefore, complainant, before the trial of this cause, moves that this honorable court ascertain the amount paid by the purchaser, together with fifteen per cent per annum thereon, in accordance with the law in such case made and provided, and more specifically in accordance with the provisions of section 3108 of the Code of Alabama of 1923, and that having so ascertained said amount, that the court will enter judgment for the amount so ascertained in favor of the respondent, which judgment shall be a lien on the land described in the complaint, and further that upon the payment into court of the amount of the judgment and costs, the court will enter judgment for the complainant for the land, and that all title and interest in the land shall by such judgment be divested out of the alleged owner of the tax deed, the respondent herein."

The appellant, being the vendee of the owner of the land at the time of the tax sale, and being in the actual constructive possession of the same, was not required to wait for the purchaser at the tax sale to bring ejectment, but had the right to resort to bill in equity to quiet title. Georgia, etc., Co. v. Washington Realty Co., 205 Ala. 46, 135 So. 344; Threadgill v. Home Loan Co., 219 Ala. 411; 122 So. 401; Bell v. Propst, 220 Ala. 641, 127 So. 212; Morris v. Card, 223 Ala. 254, 135 So. 340, 344.

The law does not require the owner, his heir, devisee, or vendee, or mortgagee of lands, in possession, when sold for taxes to wait the...