Quinn v. Hannon
| Decision Date | 24 March 1955 |
| Docket Number | 7 Div. 148 |
| Citation | 262 Ala. 630,80 So.2d 239 |
| Parties | C. E. QUINN et al. v. George W. HANNON. |
| Court | Alabama Supreme Court |
C. E. Quinn and Phil Joiner, pro se.
Earl McBee, Birmingham, and Embry & Embry, Pell City, for appellee.
Appellants, complainants and cross-respondents below, filed a bill in equity against appellee, respondent and cross-complainant below, seeking to quiet title to an eighty acre tract of 'wild land' located in St. Clair County. The bill avers that 'complainants are the owners' of said land and 'are in quiet and peaceable possession of same'; that 'respondent is reputed to claim some right, title, interest, lien, claim or encumbrance in, upon or to the said real estate'; and that 'no suit is pending to test the validity of the respondent's said claim.' The respondent is called upon 'to set forth his claim' to the land 'and by what instrument it is derived.' The prayer is for a decree adjudging that respondent 'has no right, title, interest, lien or encumbrance in, to or upon said land.'
Respondent filed an answer to the bill, making the answer a cross-bill, in which it is denied that complainants 'are in the quiet, peaceable possession' of the land and averring that 'complainants have never been in the actual or constructive possession of said real estate.' It is further averred that respondent 'holds title' to said land 'under and by virtue of a conveyance from H. H. Montgomery, Superintendent of Banks of Alabama, liquidating Leeds State Bank, under date of September 9, 1931, which deed is of record in the office of the Judge of Probate of said county at Pell City in Deed Volume 20, page 574, and further that the Respondent was placed in possession of said lands at the time of the execution and delivery of said deed as aforesaid, and that he has remained in the actual, peaceable and uninterrupted possession of said lands, exercising actual acts of ownership thereon by going upon and keeping off trespassers regularly and consecutively each year, and by cutting and removing timber from various parts of said lands to the exclusion of all persons.' that complainants claim title and the right to the possession of said lands under and by virtue of a tax deed from the State Land Commissioner dated February 12, 1947, and filed for record in St. Clair County on February 24, 1947; that the tax sale was 'erroneously made'; that if respondent is liable for any tax 'it would be for one year's taxes and expenses of sale, which respondent offers to pay into Court, and respondent offers to do equity and to perform and comply with any order or decree made in said cause.' The prayer of the cross-bill is for a decree '(a) setting aside, canceling and annulling the purported tax sale of said lands, (b) divesting out of the complainants any right, title, interest or claim in and to said real estate and removing the same as a cloud upon the title of respondent and vesting into respondent all right, title and interest in said real estate.' The manifest purpose of the cross-bill is to redeem from an alleged void tax sale.
In stating the case, we have passed over pleadings and rulings thereon which are not involved on this appeal.
It appears to be uncontroverted that the land was offered for sale by the tax collector of St. Clair County on June 3, 1932, pursuant to a May 2, 1932, decree of the Probate Court of said county ordering a sale of the land 'for the payment of state and county taxes then due from Leeds State Bank the owner of said lands'; that, there being no bidder at said offering for sale, the land was bid in for the state for $10.56, 'the sum of said taxes, fees, costs, and expenses'; that the 1932 tax sale was for unpaid taxes which became due on October 1, 1931; that complainants paid $160 to the state for the tax deed to them; that respondent paid $200 for the deed to him from the State Superintendent of Banks, and that said deed was filed for record in St. Clair County on December 1, 1931; that for the tax years 1932 through 1943 said land was assessed by 'Hannon & Simpson', the respondent and his partner, and the taxes thereon paid by them; that in August, 1943, respondent acquired his said partner's interest in said land, and for the tax years thereafter the land was assessed by respondent and the taxes thereon paid by him; that the Leeds State Bank was placed in liquidation on July 8, 1929, and its assets and property taken over at that time by the State Superintendent of Banks.
The final decree, here appealed from, denied relief to complainants and granted the relief sought by the cross-bill upon payment by cross-complainant to the register of the court, for payment over to cross-respondents, of the sum of $10.56, 'the amount of the State's lien for one year's taxes.'
It is earnestly insisted by appellee that the case should be affirmed because appellants' brief does not meet the requirements of Supreme Court Rules 1 and 10, Code 1940, Tit. 7 Appendix. While we might, with justification, order an affirmance for insufficient compliance with these rules, we are inclined to exercise our discretion in the matter and give consideration to appellants' brief. Schmale v. Bolte, 255 Ala. 115, 117, 50 So.2d 262; Simmons v. Cochran, 252 Ala. 461, 463, 41 So.2d 579; Guy v. Lancaster, 250 Ala. 287, 290, 34 So.2d 499; Brothers v. Brothers, 208 Ala. 258, 259, 94 So. 175.
Cross-respondents seem to take the position that cross-complainant is barred from any rights by what is commonly referred to as the 'short statute of limitation' of three years, Code 1940, Tit. 51, § 295, which provides that '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; * * *.' In discussing this section in Singley v. Dempsey, 252 Ala. 677, 681, 42 So.2d 609, 612, we had this to say:
'Section 295, Title 51, supra, applies to proceedings in equity as well as in ejectment cases; it applies to void tax sales as well as to valid sales; it applies when the land is purchased from the State as well as in instances where the purchase is made from the tax collector. Odom v. Averett, 248 Ala. 289, 27 So.2d 479.
* * *
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'* * * the date on which the purchaser is entitled to demand a deed is not alone determinative of the time when the statute begins to run. It cannot begin to run before that time, but it does not necessarily begin to run on that date unless the purchaser is then in actual adverse possession of the property. The rule is stated in Loper v. E. W. Gates Lumber Co., 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.'' Odom v. Averett, supra; Lathem v. Lee, 249 Ala. 532, 32 So.2d 211.'
We have carefully examined the evidence, reduced to writing by agreement of the parties and presented to the trial court without an oral hearing, and we are clear to the conclusion that cross-respondents were not in the actual adverse possession of the land as required. At most, they had only a scrambling possession which is not sufficient to bring in...
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