Odom v. Averett

• Decision Date: 10 October 1946
• Docket Number: 1 Div. 256.
• Citation: Odom v. Averett, 248 Ala. 289, 27 So.2d 479 (Ala. 1946)
• Parties: ODOM v. AVERETT et al.
• Court: Alabama Supreme Court

27 So.2d 479

248 Ala. 289

ODOM v. AVERETT et al.

1 Div. 256.

Supreme Court of Alabama

October 10, 1946

Smith Hand & Arendall, of Mobile, for appellant.

Gaillard & Gaillard and McCorvey, Turner &amp Rogers, of Mobile, for appellees.

LAWSON Justice.

The bill in this case was filed by the appellant against the appellees in the form of a bill to quiet title to certain real estate situated in Mobile County, Alabama. The manifest purpose of the bill is to redeem from an alleged void tax sale.

Appellant who will be hereafter referred to as the complainant, was the owner of the property at the time it was sold for taxes on to wit, the 23rd day of July, 1931. Said land was bid in by the State at the tax sale. Ruth Turner, one of the respondents, secured a deed to the property from the State on February 24, 1939. Respondent Humble Oil & Refining Company claims a leasehold interest in the property from Ruth Turner. Respondent Annetta Averett purchased the property from Ruth Turner on March 16, 1943. The other respondents, with the exception of Jesse J. Cole, claimed interest in the gas, oil and mineral rights under conveyances from Annetta Averett.

The cause was submitted on the pleadings and proof which was taken ore tenus. The trial court rendered a decree wherein complainant was denied relief and title to the property was declared to be in respondent Annetta Averett, subject only to the rights and interests of her co-respondents. The appeal was taken by the complainant from the decree denying him the relief for which he prayed. We are not here concerned with the rights of the other respondents as against respondent Annetta Averett.

Respondents insist that the complainant's action was barred at the time of the commencement of the suit by virtue of the provisions of § 295, Title 51, Code of 1940, which is as follows:

'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; but if the owner of such real estate was, at the time of such sale, under the age of twenty-one years, or insane, he, his heirs or legal representatives, shall be allowed one year after such disability is removed to bring suit for the recovery thereof; but this section shall not apply to any action brought by the state; nor 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; nor shall they apply to cases in which the real estate sold was not, at the time of the assessment, or of the sale, subject to taxation.'

The above-quoted statute, which is generally referred to as 'the short statute of limitations,' has application when a party comes into equity to quiet title as well as in ejectment suits. Long et al. v. Boast, 153 Ala. 428, 44 So. 955.

It has application to cases where the land is purchased from the State as well as to instances where the purchase is made from the tax collector. Doe ex dem. Evers v. Matthews et al., 192 Ala. 181, 68 So. 182; Howard v. Tollett, 202 Ala. 10, 79 So. 309.

It seems to be admitted that the tax sale was void and insufficient to convey title to the lands, in that the assessment was made in the name of and against a person who had no interest in the land. Appellant contends that the tax sale being void, the above-quoted short statute of limitations has no application.

§ 3107 of the Code of 1923, which was in force at the time the property was sold for taxes and bought in by the State, expressly provided that the statute of limitations of three years for the recovery of lands sold for payment of taxes did not apply to void tax sales. But this provision excepting void tax sales from the operation of the statute was omitted in the Revenue Act of 1935. General Acts 1935, p. 366, Sec. 260. § 295, Title 51, Code of 1940, which was in effect at the time of the filing of this suit, is in the exact language of Section 260 of the 1935 act, supra, and is the statute which has application to the instant case. Under our decisions, statutes of limitations affect the remedy and unless the act creating the limitation expressly shows a contrary intention, the statute of limitations existing at the time of trial applies. Morris v. Mouchette, 240 Ala. 349, 199 So. 516; Doe ex dem. Trotter v. Moog, 150 Ala. 460, 43 So. 710.

§ 295, Title 51, Code of 1940, is in all material respects the same as § 2311, Code of 1907. In holding that said § 2311, Code of 1907, was applicable to a tax sale when the assessment was made in the name of and against a person who had no right, title, or interest in the land, this court in the case of Williams v. Oates, 209 Ala. 683, 96 So. 880, said on rehearing:

'The court en banc has reconsidered the question, elaborately discussed in the briefs of counsel, whether the cited short statute of limitation of three years (Code, § 2311) is applicable to a tax sale where, as here, the assessment of the land was made in the name of and against a person who had no right, title, or interest in the land, and the purchasers went into adverse possession under their tax deed and remained in such possession for three years and more before action commenced by the owner of the land at the time the sale for taxes was had; the owner not being shown to be or to have been within any of the exceptions provided in the statute. Code, § 2311.

'Under a statute in present respects substantially similar to Code, § 2311, this court decided in Lassitter v. Lee, 68 Ala. 287, 291, that, notwithstanding the tax sale is void, the short statute of limitations is operative and effective, and, 'whether the sale be valid or void, the occupancy of the land under a tax deed, executed and delivered in conformity to law, for a period of five years [now three years] from such delivery, would be a good defense to the action.' This deliverance was made at the December term, 1880. In nature the present

statute (section 2311) is the same as its predecessor considered in 1880; the just exceptions have been since introduced. The court is not thought to be now at liberty to depart from the rule of Lassitter v. Lee, supra; so notwithstanding the Iowa court, whence it is said the original statute came, has accepted the view that a similar limitary statute in respect of tax sales has no application to a sale that was void. Long v. Boast, 153 Ala. 428, 44 So. 955; Howard v. Tollett, 202 Ala. 11, 79 So. 309.'

Although the tax deed was invalid it gave color of title and possession held under it is adverse. In the case of Pugh v. Youngblood, 69 Ala. 296, in writing to this question for the court, Mr. Chief Justice Brickell said: 'An outstanding conveyance, made on a sale of lands for the payment of taxes, casts a cloud upon the title, embarrassing alienation. Though it may not have recited facts which would support the sale, and was therefore invalid upon its face, it was color of title; and a possession taken and held under it was adverse, and if continued for the period prescribed by the statute of limitations, would not only bar the entry of the true owner, but ripen into an indefeasible title. Dillingham v. Brown, 38 Ala. 311.' To like effect are the following decision of this court: Long et al. v. Boast, supra; Perry v. Marbury Lumber Co., 212 Ala. 542, 103 So. 580; Wright et al. v. Louisville & N. R. Co., 203 Ala. 118, 82 So. 132; Boone et al. v. Gulf, F. & A. R. Co., 201 Ala. 560, 78 So. 956; Hooper v. Bankhead & Bankhead, 171 Ala. 626, 54 So. 549.

In view of the above we are of the opinion that § 295, Title 51, supra, is not rendered inapplicable to the present case because the tax sale was void.

§ 295, Title 51, supra, provides in effect that the statute begins to run in favor of the purchaser at a tax sale when he became entitled to demand a deed therefor, but this court has held that the statute does not begin to run until possession of the land is taken. The rule is stated in Loper v. E. W. Gates Lumber Company, 210 Ala. 512, 98 So. 722, 723, as follows: '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.'' Long v. Boast, supra; Bedsole v. Davis, 189 Ala. 325, 66 So. 491; Tidwell v. McCluskey, 191 Ala. 38, 67 So. 673.

Complainant insists that the evidence in this case does not justify a finding that the respondents have been in adverse possession of the property and that therefore § 295, Title 51, supra, does not bar his action to redeem even though more than three years elapsed between the time Mrs. Ruth Turner secured her deed from the State and the date on which this suit was instituted.

At the time the property was sold for taxes it was open, unfenced land, one-third of which was swamp land. It had never been cultivated nor had anyone ever lived on it. There is no evidence tending to show any change in the nature or condition of the property from the time it was sold for taxes until it was purchased by Mrs. Turner, except that complainant in 1932 cut most of the timber off that portion of the land not in the swamp. But there is evidence which if believed justifies the conclusion that the complainant had abandoned this property after he removed the timber therefrom on the belief that it was then valueless and that his present interest in it was engendered by the solicitation of persons interested in securing oil rights. True, complainant testified that he and his family had been continuously in the peaceable possession of this property since 1925. But this statement is not borne out by his other testimony. Complain...