Patterson v. Porter

• Decision Date: 15 December 1989
• Citation: 555 So.2d 750
• Parties: W.K. PATTERSON v. Ware M. PORTER. 88-1616.
• Court: Alabama Supreme Court

Page 750

555 So.2d 750

W.K. PATTERSON v. Ware M. PORTER.

88-1616.

Supreme Court of Alabama.

Dec. 15, 1989.

William D. Russell, Jr. of Dortch, Wright & Russell, Gadsden, for appellant.

William D. Hudson, Gadsden, for appellee.

JONES, Justice.

W.K. Patterson appeals from a judgment 1) ordering Patterson to accept Ware M. Porter's offer to redeem real property purchased by Patterson at a tax sale and 2) setting the amount necessary to redeem the property. We affirm.

Allen D. McCaghren owned two adjoining pieces of real estate in Etowah County, Alabama (described as Lots 1 and 2, Block 9, Rainbow Park). The 1983 ad valorem tax on this property was assessed to McCaghren. McCaghren did not pay the 1983 tax; however, on February 11, 1983, he sold the property to JBM Investment Properties, Inc. ("JBM"), a corporation of which Porter was the president and sole shareholder.

On March 25, 1983, JBM and Louis Dixon Stracener executed a real estate sales contract for the sale of certain real property--the Rainbow Park lots and a lot in another area of the county--by JBM to Stracener. On May 3, 1983, JBM sold the Rainbow Park lots to Martie Stracener and Louis Dixon Stracener and executed a warranty deed to that effect. According to Porter's testimony, a mortgage and note were drawn up and signed simultaneously with the deed, but the mortgage and note were not dated until July 12, 1983. The mortgage listed as collateral both the Rainbow Park property and the other property purchased by the Straceners from JBM, and the note, "due and payable in full on August 1, 1983," read, in part, as follows:

"It is agreed that this note may be paid by payment of an unsecured debt owed by JBM Investment Properties, Inc., to Alabama City Bank in the sum of $7,844.34.

"....

"This note is for a loan this day made to Martie R. Stracener and Louis Dixon Stracener and is secured by a mortgage on real estate situated in Etowah County, Alabama...."

On May 6, Martie Stracener mortgaged her interest in the Rainbow Park property to Central Bank of the South ("Central Bank") in consideration for a loan of $10,000. The proceeds of the loan were payable to Martie Stracener and to JBM. On August 15, 1988--JBM having ceased to exist as a corporate entity--Porter paid the balance due on the note executed by Martie Stracener to Central Bank, and Central Bank assigned the mortgage and note to Porter. All of the transactions between JBM and McCaghren, between Central Bank and Martie Stracener, and between JBM/Porter and the Straceners were duly recorded in the office of the probate judge of Etowah County.

Porter testified that he discovered that Patterson had purchased the Rainbow Park property at a tax sale held on May 29, 1984, when he asked his lawyer to update the title on the property. Porter contacted Patterson and offered to redeem the property. ¹ Patterson, in a letter responding to Porter's offer, stated that he did not believe that Porter fell within the "class" of persons entitled to redeem the property, and he requested copies of all documents proving Porter's claims. Despite Porter's compliance with this request, Patterson refused Porter's offer to redeem the property, offering instead to sell the property to Porter.

Porter sued Patterson on September 19, 1988, and alleged 1) that Patterson had not notified Porter, JBM, or Central Bank of Patterson's purchase of the Rainbow Park property; 2) that Porter had offered to redeem the property and that he had requested a statement of the amount required for redemption; 3) that Patterson had refused to allow redemption or to give Porter a statement of the amount required for redemption, but that Patterson had offered to sell the property to Porter; 4) that Porter stands "ready, willing, and able" to redeem the property; and 5) that Porter is entitled to redeem the property under the provisions of Ala.Code 1975, § 40-10-120 et seq. Porter sought relief in the form of 1) a determination of the amount necessary to redeem the property; 2) an order directing Patterson to allow Porter to redeem the property; and 3) an order to transfer the title to the property to Porter upon payment of the redemption amount.

A nonjury hearing was held on February 10, 1989, and the trial court entered the following order on February 16, 1989:

"This cause coming on to be heard before the court, and the court having to hear evidence ore tenus, and having considered the same, it is therefore:

"ORDERED, ADJUDGED, and DECREED by the court as follows:

"1. That [Patterson] did not comply with the notice provisions of Ala.Code 1975, § 40-10-120, with respect to the mortgagees JBM Investment Properties, Inc., and Central Bank of the South prior to the filing of this action.

"2. That [Porter] is the holder of said mortgages and is entitled to redeem the property in dispute from the tax sale held on May 29, 1984.

"3. That the amount necessary to redeem said property is $320.10.

"4. Upon payment of said sum to the Tax Collector of Etowah County, Alabama, said property shall be redeemed and all right, title, and interest of W.K. Patterson in and to the following described property shall be divested from him and shall be vested in Ware M. Porter:

"Lots 1 and 2 in Block 9 of Rainbow Park as shown by map or plat thereof recorded in Plat Book 'C,' Pages 18 and 19, Probate Office, Etowah County, Alabama.

"5. [Porter] being entitled to relief under Count 1 of his Complaint, the court makes no findings in regard to count II thereof." ²

Because Patterson appeals from a judgment based upon evidence presented in a nonjury hearing and challenges the trial court's factual findings, our analysis of his allegations of error is governed by the ore tenus rule. Under this standard of review, where the trial court hears disputed material evidence and enters a judgment thereon, we will presume that the judgment, if supported by credible evidence, is correct, and we will reverse "only if the judgment is found to be plainly and palpably wrong after a consideration of all the evidence and after making all inferences that can logically be made from the evidence." King v. Travelers Ins. Co., 513 So.2d 1023, 1026 (Ala.1987) (emphasis in original). See, also, Robinson v. Hamilton, 496 So.2d 8 (Ala.1986).

Section 40-10-120 provides, in part:

"Real estate which hereafter may be sold for taxes and purchased by the state may be redeemed at any time before the title passes out of the state or, if purchased by any other purchaser, may be redeemed at any time within three years from the date of the sale by the owner, his heirs or personal representatives, or by any mortgagee or purchaser of such lands, or any part thereof, or by any person having an interest therein, or in any part thereof, legal or equitable.... If the mortgage or other instrument creating a lien under which a party seeks to redeem is duly recorded at the time of said tax sale, the said party shall, in addition to the time herein specified, have the right to redeem said real estate sold, or any portion thereof covered by his mortgage or lien, at any time within one year from the date of written notice from the purchaser of his purchase of said lands at tax sale served upon such party...." (Emphasis added.)

Despite Patterson's assertions to the contrary, the evidence presented to the trial court as to whether Patterson had complied with the notice requirement of Alabama's redemption statute was in dispute. At the hearing, Patterson produced photocopies of the letters he contends he sent to Porter and to Central Bank informing them, as mortgagees of the Rainbow Park property, that Patterson had purchased the property at the tax sale for the 1983 ad valorem taxes.

This evidence, contends Patterson, was sufficient to invoke the presumption of law "that a letter, properly addressed with sufficient postage, and unreturned to the sender whose address is shown on the envelope, was received by the addressee." Harrell v. Alabama Farm Bureau Mut. Cas. Ins. Co., 287 Ala. 259, 264, 251 So.2d 220, 224-25 (1971). We agree with Patterson's basic premise, but we disagree with his ultimate conclusion that the evidence was insufficient to overcome the presumption that the letter of notice was in fact received.

Both Porter and a representative of Central Bank (the vice-president who handled the note and mortgage transactions involving the Straceners and Porter with regard to the Rainbow Park property and who brought to the hearing, under subpoena duces tecum, the bank's file on these transactions) testified at the hearing that they had not received a...