Powell v. City of Birmingham

• Decision Date: 19 June 1952
• Docket Number: 6 Div. 299
• Citation: 61 So.2d 11,258 Ala. 159
• Parties: POWELL v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

Page 11

61 So.2d 11

258 Ala. 159

POWELL v. CITY OF BIRMINGHAM.

6 Div. 299.

Supreme Court of Alabama.

June 19, 1952.

Rehearing Denied Nov. 6, 1952.

H. M. Powell, Birmingham, for appellant.

John S. Foster, Birmingham, for appellee.

BROWN, Justice.

The bill in this case was filed December 11, 1939, by W. S. Shields and H. M. Powell under the provisions of § 1109, Title 7, Code of 1940, against The City of Birmingham, a municipal corporation of Jefferson County, Alabama, to quiet the title to the West Half of Block 5 in Block 587, according to Elyton Land Company Survey of the City of Birmingham, located in the City of Birmingham, Jefferson County, Alabama. Said property is improved income producing Negro tenement houses thirteen in number and numbered 1600-2N. 9th Avenue and 905-7-9-11-15-16-17-21-23-25-27 North 16th Street in the City of Birmingham, occupied by tenants of the complainants.

After demurrer sustained to the original bill, it was amended by striking out all of paragraph two of the bill and substituting in lieu thereof the following averment: 'And complainants aver that they are owners of the following described property, towit, the West Half of Lot Five, in Block 587, according to Elyton Land Survey, of the City of Birmingham, located in the City of Birmingham, Alabama, Jefferson County, Alabama.' The bill was further amended by striking out paragraph three of the complaint and substituting in lieu thereof the following:

'And Complainants aver that they are in peaceable possession of said property, claiming to own the same in their own right: And that said respondent, The City of Birmingham, claims to hold a lien or encumbrance thereon; And that there is no suit pending to enforce or test the validity of such claim or encumbrance.'

Following the prescription of the statute the bill alleges that the title of the complainants was disputed by the respondent, who claimed a lien thereon and called upon it to avow and assert its claim and right.

The demurrer was reinterposed to the bill as amended and was overruled.

The respondent's answer admitted the allegations of section one of the bill as last amended and denied the allegations of sections two and three of the bill as last amended, the said answer alleging:

'That from and since a date long before the filing of the original bill of complaint in this cause, the Respondent has been in the continuous, uninterrupted and peaceable possession of said property, claiming to own the same in its own right.' The respondent denied that it claimed a lien or encumbrance on said property and alleged that it claims to be and that 'it is the absolute owner of said property, and that the Respondent derived its title to said property in the manner set forth in the next succeeding section of this Respondent's Answer.'

The answer admitted that there was no suit pending other than the bill in this case to enforce or test the validity of the respondent's title to the property. The answer alleges that the respondent acquired title to the property by virtue of the following proceedings and acts:

'On the 19th day of April, 1921, the Commission of the City of Birmingham duly levied upon and against the West Half of said Lot 5 an assessment and lien, numbered D-4468, City Series, for a proportion of the cost of street improvements constructed under Improvement Ordinance 45-D; that said assessment and lien became delinquent prior to the 26th day of June, 1925; that on the 26th day of June, 1925, after due advertisement, the West Half of said Lot 5 was duly and regularly sold and conveyed to Respondent for the satisfaction of said assessment and lien; and the Respondent has ever since owned the title so acquired by said sale and conveyance. A copy of said public improvement sale deed is attached hereto, marked Exhibit A, and made a part thereof. Respondent avers that said public improvement sale deed was duly filed for record in the office of the Probate Judge of Jefferson County, Alabama, on the 13th day of July, 1925, and is of record therein at page 74 of Volume 1454, Record of Deeds.'

The respondent made its answer a cross bill and prays that upon final hearing a decree be rendered that this respondent and cross complainant is the owner of and entitled to retain the possession of the aforesaid Lot 5 and that the complainants and cross defendants have 'no right, title or interest in said Lot 5.' The Respondent offers to do equity and prays for general relief.

The complainant filed an answer to the cross bill denying that the respondent has ever had actual, continuous, uninterrupted and peaceable possession of said property but they say 'that on the contrary complainants have always claimed to own the same, occupied same by tenants, have assessed it for taxation and paid the taxes thereon for more than ten years from the time that the alleged claim of the respondent arose and from the date of the alleged sale to the respondent. That from the date of said alleged sale down through and including May 1936, said respondent recognized the right of complainants to the possession of said property by its tenants and that on to wit March 29, 1927, it assessed against the complainants and caused them to pay a large sum of money viz. approximately $1,000 to have certain sanitary connections put into said property as the property of these complainants. A copy of the notice to the complainants and served upon them March 29, 1927, together with a letter from the Department of Public Health, and under which order the complainants were forced to pay to the City of Birmingham for the installation connections of said sanitary sewers is hereto attached and marked exhibits 'A' and 'B'.'

The answer to the cross bill alleges further that said 'respondent is estopped and precluded from setting up or attempting to set up any claim against said complainants as they have had open, notorious, and exclusive possession of said property hostile to the world and to the knowledge and notice of this respondent for more than eleven years after the time that this respondent claims to have acquired any interest in said property. That had said respondent attempted to sue for the possession of said property in ejectment the statute of limitations of ten years would have barred them; knowing which they have attempted to illegally and with a strong hand wrest the possession of said property from your complainants.'

The answer to the cross bill further alleges in paragraph B on page 18: 'That on March 10, 1936, this respondent acting through its Police Officers coerced the tenants of these complainants who were in the possession of said property under and by virtue of lease contracts with complainants to pay to said respondent and its agents the rents upon said premises, and have continued to collect said rents and are now collecting the same. A copy of the notice served upon said tenants being hereto attached and made a part of this answer marked Exhibit 'C'. Together with notice to rental and collection agents of Complainants and Cross Respondents also hereto attached and made a part of this answer marked Exhibit 'D'. And complainants charge that the amount of said income so collected by the respondent and its agents after the deduction of the usual cost of the collection thereof and of any necessary repair to said property is more than sufficient to pay the amount of the alleged assessment both principle and interest claimed to be due to the respondent for such alleged improvements.'

On December 11, 1950, the cause was submitted for final decree upon the stipulation of the parties and pleadings and testimony noted as follows: 'This cause was submitted in behalf of Complainant upon Bill of Complaint, as last amended and testimony of _____ stipulation of parties with exhibits thereto and complainants interrogatories and Respondent's answers thereto and in behalf of Respondent upon the respondent's answer as last amended; the complainant's interrogatories and the Respondent's answers thereto and the stipulation and all Exhibits thereto.'

The court on the 24th day of January, 1951, entered a final decree, denying the complainant relief and dismissing his bill, and granting relief to the respondent on its cross bill, quieting the title to the property in the City of Birmingham.

From this decree the complainant has appealed.

The record shows that pending the suit W. S. Shields, the husband of Mrs. Ada M. Shields, original owner of the property, died, Mrs. Shields having predeceased him, dying intestate leaving her husband who had a curtesy interest and an only son, the appellant here, as the owners of said property.

The parties entered into the following stipulation of fact.

'It is stipulated by and between the complainant, H. M. Powell, and the respondent, City of Birmingham, in the above styled cause as follows:

'1. The parties to this cause in stipulating to the facts herein contained agree that it is their intention that the Court will not consider any fact which is not material to the issues in this case.

'2. The property involved in this litigation is the West Half of Lot 5 in Block 587, according to Elyton Land Company's survey of City of Birmingham, which property will hereinafter be referred to as 'the lot'. The lot, situated in the City of Birmingham, fronts 50 feet on 9th Avenue North and runs back on 16th Street North 240 feet to an alley. It is improved by several Negro houses, said houses being numbered: 1600-1602 North 9th Avenue and 905-7-9-11-13-15-17-19-21-23-25 and 27th North, 16th Street, Birmingham. All of said houses are in bad condition.

'3. Ada M. Shields during her lifetime owned the lot. She died intestate in the year 1917. She left surviving her husband W. S. Shields, and H. M. Powell, her son by a former marriage. She left no other child or children surviving; and both her father and monther pre-deceased her.

'W. S. Shields was appointed Administrator of Ada M....