Park v. Elliott, 6 Div. 189
| Decision Date | 11 April 1968 |
| Docket Number | 6 Div. 189 |
| Citation | 209 So.2d 393,282 Ala. 110 |
| Parties | H. M. PARK v. N. R. ELLIOTT. |
| Court | Alabama Supreme Court |
Phil Joiner, Birmingham, for appellant.
Sirote, Permutt, Friend & Friedman, Birmingham, for appellee.
The suit pertinent to this appeal originated in the Circuit Court of Jefferson County, in Equity, and was on motion transferred to the Bessemer Division, wherein a final decree was rendered from which this appeal was taken.
The final decree allows the redemption by appellee of certain real estate in Jefferson County that was sold to the State at a tax sale; also it quiets title in appellee. Relief sought by appellant in his substitute bill to quiet title in himself was denied.
The original bill of complaint was filed by appellant, and subsequent thereto he filed a substitute bill of complaint. This latter bill alleged that appellant (complainant) was in peaceful possession of certain described land under a statutory deed from the State of Alabama, who acquired the property at a tax sale for nonpayment of ad valorem taxes assessed against the property that was then owned by appellee. Complainant also alleged that prior to the suit he had had open, exclusive, and peaceable adverse possession of said real property under said State Tax title for as much as three years.
Complainant further alleged that respondent (appellee) recorded certain instruments purporting to be conveyances to respondent, and that these described conveyances constituted 'clouds' on his tax title.
The substitute bill concluded with a specific prayer for relief, namely, that on a final hearing 'the court will cancel as of Record the instruments set out in Paragraph 3 above and decree such to be null and of no effect as of against Complainant's title to the property described in the foregoing substituted Bill of Complaint.' There was no prayer for general relief.
The respondent answered, and later amended to make his amended answer a cross bill. We do not deem it necessary to detail the admissions and denials contained in the original answer, but suffice it to say that respondent claimed his title to the real estate through the deeds that complainant sought to cancel as clouds on his title.
Further answering, respondent contended that complainant was estopped from 'attacking the validity' of the two warranty deeds to which complainant referred as clouds on his title, for the reason that complainant must claim through respondent's chain of title in that the State acquired its right or title through the same source or deeds.
Respondent made his amended answer a cross bill. He averred therein that he 'is in the peaceable possession' of the real estate in controversy. We omit the description of the real estate.
He also averred that cross-respondent claims some right, title or interest in the property, and that no suit was pending to enforce or test the validity of such title. He called upon cross-respondent to set forth and specify his title, etc. He also denied that cross-respondent had been in the adverse possession of the property for a period of three years as alleged in the substitute bill.
Cross-complainant prayed that he be allowed to redeem said property from cross-respondent; also, that the court decree that cross-respondent had no estate, title, claim or interest in such real estate.
Cross-respondent answered the cross bill by denying and admitting some of the allegations in the cross bill. We will not undertake to elaborate further on the answer.
The evidence was taken ore tenus before the trial court, but was not transcribed and does not appear in the transcript before us. The case was submitted to the trial court for final decree on the pleadings and the evidence. Both sides filed notes of testimony.
Prior to a final decree being rendered on this submission, cross-complainant Elliott informed the trial court in writing, with copy to appellant (cross-respondent), that he wanted to have the submission set aside and amend his cross bill to meet certain phases of the evidence, but that he did not want to take further evidence. The motion bearing such request was granted.
Appellant filed objections to the motion on the ground that the proposed amendment would not 'fit in' with the evidence already taken at the trial. He also submitted with his objection an affidavit of a proposed witness pertaining to a telephone conversation with another party relative to renting the land.
An order of resubmission was entered by the court and a final decree again rendered. This decree denied relief to appellant and granted relief to appellee. We quote therefrom as follows:
* * *'
Appellant has made fifteen assignments of error. We will refer to them in order.
Assignment 1.
It says that the decree is erroneous in manner and form, and contrary to law.
This ground is too general to be considered. The error of manner and form, and in which respect the decree is contrary to law, should be specifically pointed out so that the court's attention will be directed there. Danley v. Marshall Lumber & Mill Co., 277 Ala. 551, 173 So.2d 94(3).
Assignments 2 and 3.
These two assignments assert error on the part of the trial court in decreeing that appellant has no right, title or interest in, lien or encumbrance upon the real estate, and in quieting title in appellee.
We here observe that the cross bill of appellee as amended alleges and seeks relief in two aspects: (1) quieting title in himself; (2) redemption of the property from sale by the State of its tax title to appellant. Demurrer was filed to the amended cross bill, but this demurrer is not the subject of review on this appeal.
It therefore appears that the final decree was responsive to the allegations and prayer of the cross bill.
Assignment 4.
Appellant contends in this assignment that appellee was not entitled to redeem the property and that the trial court erred in so decreeing.
We have already observed that the transcript does not contain a transcription of any of the evidence that was taken orally before the trial court. We are precluded from reviewing here the propriety of the trial court's conclusion thereon. Thomas v. Thomas, 246 Ala. 484, 21 So.2d 321(2). It will be presumed that the omitted evidence justified the adjudication of the court on the various issues of fact presented. Thomas v. Thomas, supra, (3).
Assignment 5.
Here, appellant asserts that the final decree did not 'divest' title of appellant, nor 'invest' the same in appellee, and that it was error for the trial court to precede the adjudication in the final decree with recitals that appellee was entitled to redeem from appellant.
We note that the final decree does not specifically divest title of appellant and invest the same in appellee, but the decree does adjudge that appellee is entitled to redeem the subject property, and finds that the redemption money has been paid into the registry of the court.
We hold that the adjudication of...
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...court, this court is in the position of having to assume that the evidence fully supported the June 14, 1976 decree. Park v. Elliott, 282 Ala. 110, 209 So.2d 393 (1968); Thompson v. Thompson, 50 Ala.App. 564, 281 So.2d 277 Mrs. Sanders next attacks the June 14, 1976 decree in that the minor......
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