Stallworth v. First Nat. Bank of Mobile
| Decision Date | 27 May 1983 |
| Citation | 432 So.2d 1222 |
| Parties | Burton STALLWORTH v. FIRST NATIONAL BANK OF MOBILE as Trustee Under Article Four of the Will of Eugene A. Koehle, Deceased. 81-696. |
| Court | Alabama Supreme Court |
J. Connor Owens, Jr. of Owens & Simpson, Bay Minette, for appellant.
J. Don Foster of Foster, Brackin & Bolton, Foley, for appellee.
This is an appeal from a final judgment rendered in favor of First National Bank of Mobile which held (1) that the tax sale, which was the subject of plaintiff's complaint, dated 12 June 1950, was defective and void, and that the tax deed, dated 21 January 1954, from W.R. Stuart as Probate Judge to Mary Thompson White Richerson was cancelled and that the defendant, Stallworth, had no right, title or interest in the property in question; (2) that the First National Bank of Mobile was entitled to judicial redemption pursuant to § 40-10-83, Code 1975; (3) that Stallworth be disallowed recovery of any taxes paid on the property because of the inconvenience caused the plaintiff; and (4) that Stallworth be required to remove the house constructed on the property, including plumbing and pilings. The trial court further denied relief to Stallworth on his counterclaim. We affirm.
Plaintiff, First National Bank of Mobile, as Trustee under the will of Eugene A. Koehle, deceased, brought this action against Mary Thompson White Richerson and Burton Stallworth, jointly and severally, and against the properties involved in this case. The complaint set forth three causes of action. The first cause sought redemption from a tax sale pursuant to § 40-10-83, Code 1975; the second alleged the tax sale was void and sought a determination to that effect together with any other equitable relief, and the third alleged unlawful withholding of the real property by Stallworth and sought ejectment of him from the property. Stallworth answered by denying all material allegations and affirmatively raising the defenses of laches and the statute of limitations. Stallworth filed a counterclaim alleging that the plaintiff knew of Stallworth's claim and that he had placed improvements on the property increasing its value and prayed that the trial court determine the value of said improvements and fix a lien upon the property and that it be sold for satisfaction thereof.
No answer was filed by defendant Mary Thompson White Richerson and default was entered against her on 26 February 1982.
Plaintiff amended its complaint and added a fourth cause of action which contained a prayer for redemption and the elements of a bill to quiet title in personam. Plaintiff further denied all material allegations in defendant Stallworth's counterclaim.
Stallworth filed his amended answer denying all material allegations and reasserting his original defenses, except that the additional defense of estoppel was added as to each of plaintiff's claims.
The case was heard ore tenus on 4 March 1982 and final judgment entered in behalf of First National Bank of Mobile on 14 April 1982. Stallworth perfected his notice of appeal to this court on 20 May 1982.
On appeal, Stallworth contends the trial court erred in determining that plaintiff was entitled to have judicial redemption pursuant to § 40-10-83, Code 1975. In support thereof, he asserts that neither First National Bank of Mobile nor its predecessor in title, Eugene Koehle, sufficiently possessed, constructively or otherwise, the property in question in order to assert redemptive rights under the statute.
In order for plaintiff to obtain relief under this redemption statute, there are certain primary requisites: first, possession of the land by the plaintiff within the meaning of the statute; second, membership by the plaintiff in a class of those allowed under the statute to redeem; third, a claim to the land by the defendant under a tax title or proceeding; fourth, no action pending to enforce or test defendant's claim. Moorer v. Chastang, 247 Ala. 676, 26 So.2d 75 (1946). The purpose of § 40-10-83 is to preserve the right of redemption without limit of time, if the owner of the land seeking to redeem has retained possession. O'Connor v. Rabren, 373 So.2d...
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