Phillips v. Hinkle

• Decision Date: 10 March 1955
• Docket Number: 6 Div. 751
• Citation: 262 Ala. 330,78 So.2d 800
• Parties: Lee L. PHILLIPS et al. v. Cubie HINKLE.
• Court: Alabama Supreme Court

Page 800

78 So.2d 800

262 Ala. 330

Lee L. PHILLIPS et al. v. Cubie HINKLE.

6 Div. 751.

Supreme Court of Alabama.

March 10, 1955.

Morton & Hesse and Taylor, Higgins, Windham & Perdue, Birmingham, for appellants.

Maurice F. Bishop, Birmingham, for appellee.

STAKELY, Justice.

This case involves the Unit System Act which appears as Chapter 8, Title 51, Code of 1940, as amended. The propositions which will be discussed result from an appeal from a decree of the circuit court of the Tenth Judicial Circuit, in Equity, sustaining the demurrer of Cubic Hinkle (appellee) to the bill of complaint filed by Lee L. Phillips and Clyde D. Posey (appellants).

The bill of complaint is for the purpose of redeeming certain real estate in Jefferson County from a tax asle. The allegations of the bill show that Lee L. Phillips is the owner of the following described real estate, 'Lot 7 in Block 1 according to the map and plan of survey of the property of the Pleasant Valley Land & Manufacturing Company known as 'Central Tract' and recorded in the Probate Office of Jefferson County in Map Book 3, page 10,' subject to a mortgage heretofore executed by him to Clyde E. Posey, that Cubie Hinkle is in possession of the land and has had possession of the real estate since to wit the 17th day of January, 1951, claiming to own the same under a certain tax deed hereinafter referred to, that on to wit June 13, 1947, the Tax Collector of Jefferson County, Alabama, caused the land to be sold at a purported tax sale for taxes for the tax year 1946, that at the said tax sale the State of Alabama became the purchaser thereof for the sum of $13.02, that on the 17th day of January 1951 Cubie Hinkle acquired by tax deed from the State of Alabama such title, claim and interest or lien in and to the land, as acquired by the State of Alabama by virtue of the purported tax sale, for the sum of $78, said sum of money being the amount of money for which the land was sold to the State of Alabama for taxes together with the amount of all taxes assessed against the land subsequent to the aforesaid tax sale, including taxes for the tax year 1951, and all of the lawful charges which accrued against the land by reason of the purported tax sale, that Lee L. Phillips was the owner of record of the aforesaid land on the date of the purported tax sale and has been such owner of record of said land for more than 12 months next before the purported tax sale.

It is further alleged that the land was assessed for taxes for the tax year 1946, the tax year for which the land was sold to the State of Alabama as aforesaid on June 13, 1947, in the name of one Georgia Williams, the former owner of the land who died during to wit the month of October 1944, that the said land was described on the assessment records of the Tax Assessor of Jefferson County, Alabama, as follows: 'Lot 7, Block 1, Central Tract.' It is further alleged that notice of unpaid taxes against the aforesaid land for the tax year 1946 was not given to the complainant, Lee L. Phillips, as required by law, but to the contrary notice of unpaid taxes on said land for the aforesaid tax year was given or sought to be given to Georgia Williams, who was then deceased, and that the aforesaid assessment and sale based thereon was void, that the aforesaid description of said land as contained in the assessment records for the tax year 1946 was not sufficiently accurate to identify the land.

It is further alleged that the aforesaid tax deed under which Cubie Hinkle claims said land is void in that the tax sale of said land was based on an assessment made by the tax assessor to Georgia Williams for the tax year beginning October 1, 1945, and ending September 30, 1946, in that Georgia Williams was dead when the assessment was made, her death having occurred during the month of October 1944.

It is further alleged that prior to the date of filing of this bill of complaint Lee L. Phillips, the complainant, offered to redeem the land from the said purported tax sale by tendering and offering to pay to Cubie Hinkle the sum of $125.00, the amount which complainant is informed and believes is the amount for which said land was sold for taxes together with the amount of all taxes assessed against said land subsequent to the sale with interest and all other charges which have accrued against the land by virtue of the purported tax sale, that Lee L. Phillips was then and there ready, willing and able to pay and did offer to pay to Cubie Hinkle said sum or any additional sum of money lawfully due Cubie Hinkle in order to redeem the land from the tax sale, all of which Cubie Hinkle did then and there refuse to accept and did deny and refuse to Lee L. Phillips the right to redeem the land from the aforesaid void tax sale, that Cubie Hinkle did then and there waive any further tender of any sum of money to redeem the said land from the purported tax sale.

It is further alleged that Lee L. Phillips desires to do equity in the premises and does herewith tender and pay into court for the use and benefit of Cubie Hinkle the sum of $125.00 in order to redeem the land and does hereby offer to do equity in the premises by offering to pay any additional sum of money to which Cubie Hinkle may be lawfully entitled in order to effect redemption of the land from the aforesaid void tax sale.

Summarizing the allegations of the bill it appears that the purported tax title of Cubie Hinkle is alleged to be void because: (1) The land in question was assessed for the tax year 1946 in the name of Georgia Williams, a former owner of the land, who is alleged to have died in October 1944. (2) The assessment roll did not describe the land sought to be assessed and sold with sufficient accuracy to identify the land assessed and sold, and (3) A tax deed based upon notice directed to a deceased owner is a nullity.

The demurrer raises propositions which may be summarized as follows: (1) Does the failure of the Tax Assessor of Jefferson County to assess the property against the true owner, who has not assessed the same in his name, render the tax sale based thereon invalid under the provisions of § 80, Title 51, Code of 1940, as amended, Pocket Part, which specifically provides that: 'The failure of said assessor to assess said property against the true owner of said property shall not invalidate said assessment'? (2) Is the property sufficiently described where the correct lot, block, tract and unit number is given? (3) Is § 85, Title 51, Code of 1940, unconstitutional as violative of the due process clauses of the State and Federal Constitutions? Const.Ala.1901, § 13; Const.U.S. Amend. 14.

I. Decision in this case will be simplified if at the outset it is kept clearly in mind that we are not dealing with the general assessment statutes as found in § 31 et seq., Title 51, Code of 1940. On the contrary we are concerned in this litigation with the unit system of assessment which is applicable to Jefferson County as set forth in § 78 et seq., Title 51, Code of 1940, as amended. Under the unit system each parcel of land is given a separate unit number which serves to identify and control throughout the assessment and collection and if necessary the sale of delinquent property. Section 78, Title 51, Code of 1940, specifically provides that 'The purpose of this chapter is to provide for a more convenient, economical and uniform system of assessing and collecting taxes on real estate by authorizing the tax assessing authorities * * *, to assess each lot or parcel of land separately to the owner last assessing said property or to the owner of record and annually thereafter under a unit system of assessment of real property, by assessing each lot or parcel of land, together with the improvements thereon, separately, and determining the value and the amount of taxes on each separate item of property so assessed.'

There is no doubt that a bill in equity will lie to redeem from a tax lien where the tax sale is void. Baker v. Farish, 244 Ala. 178, 12 So.2d 547; Harrell v. Vieg, 246 Ala. 669, 22 So.2d 94; Section 283, Title 51, Code of 1940. It is further well understood that the constitutional requirements of the statute providing for a sale for delinquent taxes must be complied with in order effectively must be title to such property. Furthermore in construing the general assessment statutes to which we have referred, this court has uniformly held that a tax deed based upon an assessment of land to a deceased former owner of such land is void and no title, claim or interest other than the statutory lien for taxes on such land passes under such tax deed. Hames v. Irwin, 253 Ala. 458, 45 So.2d 281.

In the instant case, however, we appear to have a case of original impression in Alabama. There is no Alabama authority, so far as we are aware, that deals with the specific curative provisions of the unit system act. In § 80, Title 51, Code of 1940, Pocket Part, the tax assessor has the right and authority beginning on October 1st of any taxable year and annually thereafter to make a separate assessment of each lot or parcel of land, together with the improvements thereon, assessing the same to the party last assessing said property, as shown by the tax assessor's records in said county or to the owner of record. It is expressly provided in the statute that 'The failure of said assessor to assess said property against the true owner of said property shall not invalidate said assessment.'

In the case of Pottock v. Mellott, 2 Terry, Del., 361, 22 A.2d 843, in regard to a similar...