State ex rel. Atty. Gen. v. Ward
| Decision Date | 28 September 1961 |
| Docket Number | 6 Div. 619 |
| Citation | 272 Ala. 646,133 So.2d 383 |
| Parties | STATE of Alabama ex rel. ATTY. GEN. v. Rex M. WARD, as Administrator, etc. |
| Court | Alabama Supreme Court |
MacDonald Gallion, Atty. Gen., and W. G. O'Rear, John D. Bonham and Bert S. Nettles, Asst. Attys. Gen., for appellant.
Bankhead & Petree, Jasper, for appellee.
The majority of the court concur in that part of the opinion of Justice Goodwyn, appearing below, holding that the injunction suit was not a suit pending 'to enforce or test the validity' of the title. However, they do not concur in that part dealing with the question whether the principle of estoppel is applicable to the State, and express their view on that question as follows:
Assuming, without deciding, that the principle of estoppel is applicable to the State, we are nevertheless of the opinion that the facts and circumstances of this case are not sufficient to justify application of said principle. Accordingly, the decree appealed from is due to be reversed and the cause remanded.
Reversed and remanded.
On May 15, 1951, the state, pursuant to Code 1940, Tit. 7, § 1109, et seq., filed a bill of complaint in the circuit court of Winston County, in equity, to quiet title to the NE 1/4 of the NW 1/4 of Sect. 14, Tp. 12 S., R. 9 W., located in Winston County. The bill alleges that the respondent, John M. Ward, claims or is reputed to claim some right, title or interest in, or encumbrance upon, said lands, and that 'there is no suit now pending to enforce or test the validity of such title, claim or encumbrance.' Although § 1109 provides that complainant shall be in peaceable possession of the lands, the state is authorized by § 1115 to maintain a suit to quiet title whether in possession or not.
The respondent demurred to the bill on the grounds that it is without equity, that complainant has an adequate remedy at law and that, for aught appearing, the complainant is not in peaceable possession of the lands. The demurrer was overruled.
The respondent then answered the bill alleging that complainant is not in possession of said lands but that he, the respondent, 'and his predecessors in title for over fifty years have been in open, notorious, adverse and peaceable possession of said lands; that the lands * * * have been owned by the respondent and his predecessors in title since prior to the year 1888 and that said owners have paid taxes on said lands each and every year down to the current tax year.'
The answer denies the allegation of the bill that no suit was pending to enforce or test respondent's title and alleges that complainant filed such a suit in the circuit court of Winston County, in equity, on May 14, 1951, the day prior to the filing of the instant suit, and that said suit was pending at the time of the filing of the instant suit.
Apparently, the evidence was taken orally before the trial court. However, by agreement of the parties there has been an abridgment of the record by including therein an agreed statement of facts in lieu of the actual evidence submitted to the trial court. See: Code 1940, Tit. 7, § 773; Supreme Court Rule 26, 261 Ala. XIX, XXIX; McMillan v. Dozier, 257 Ala. 435, 440, 59 So.2d 563. This agreed statement of facts, in pertinent parts, is as follows:
'* * * The lands described in the bill of complaint were granted to the State of Alabama on March 2, 1889, by the United States of America as 'School Indemnity Lands' and the Secretary of State of the State of Alabama certified that according to the records of her office, the State of Alabama has not parted with its title to said tract of land. The 'Tract Book' for Winston County on file in the records of the probate office of said County, contains a recital of the fact that a patent issued from the U.S.A. to the State of Alabama on said lands as school lands.
'It is agreed that the tax assessment records in the Courthouse at Double Springs, Alabama, indicate that the subject lands were assessed from 1891 to date as follows:
"1891 W. M. Kaieser
1892 W. M. Kaieser
1893-1894 Not Assessed
1895-1896 Not Assessed
1897 Mrs. W. H. Fuller
1898 Owner Unknown
1899-1900 " "
1901 E. W. Coleman
1902 "" "
1903-04 "" "
1905 N. S. Coleman
1906 Mrs. E. W. Coleman
1907-08-09-10 Mrs. E. W. Coleman
1911 " " " "
1912-13-14 " " " "
1915 " " " "
1916 " " " "
1917 " " " "
1918 " " " "
1919 " " " "
1920-to 1947
inclusive Mrs. E.W. Coleman
1948 Murphy Cagle
1949 Murphy Cagle
1950 Murphy Cagle
1951 Murphy Cagle
1952 to 1959 John M. Ward
'It is agreed that John M. Ward, Murphy Cagle and the Colemans paid ad valorem taxes on said lands for each year they assessed the same.
'Attached hereto and marked Exhibits 'A' and 'B', and made a part hereof as if set out herein in full, are abstract copies of tax sales on said lands for taxes for the years 1899 and 1900, the tax sale for the taxes of 1899 being made to E. W. Coleman and the tax sale for taxes of 1900 being made to the State but was redeemed by N. S. Coleman on June 17, 1905. N. S. Coleman is one and the same person as Nannie S. Coleman, the wife and later widow of E. W. Coleman.
'On June 18, 1902, a tax deed was issued on said lands to E. W. Coleman by R. L. Blanton, as Probate Judge of said County, said tax deed reciting that on the 21st day of May, 1900, the lands in question were duly sold by the tax collector of said County for taxes, costs and expenses, that at said sale E. W. Coleman became the purchaser thereof, a copy of said deed being attached hereto, marked Exhibit 'C' and made a part hereof as if set out herein in full.
'On June 6, 1950, a quit-claim deed on said lands was executed by the widow and heirs of E. W. Coleman to Murphy Cagle, a copy of said deed being attached hereto as exhibit 'D' and made a part hereof as if set out herein in full.
'On May 7, 1951, a quit-claim deed was executed by Murphy Cagle and wife to John Ward on said lands, a copy of said deed being attached hereto, marked Exhibit 'E', and made a part hereof as if set out herein in full.
'It is agreed that John M. Ward, Murphy Cagle and the Colemans had adverse possession of the property from 1900 until 1951 when a Bill for Injunction and a Bill to Quiet Title were brought by the State of Alabama.
'When John Ward commenced to cut timber on the lands in question in 1951, he was enjoined from any further timber cutting by writ of injunction from the Circuit Court of Winston County, Alabama, In Equity, under Bill for Injunction brought by the State of Alabama. Said Bill for Injunction was a companion case to the Bill to Quiet Title, which is the basis of this appeal. The Bill for Injunction, case No. 304, was filed May 14, 1951, the day before the filing of said Bill to Quiet Title, case No. 305. A copy of said Bill for Injunction is attached hereto, marked Exhibit 'F' and made a part hereof as if set out herein in full.
'At the time of the purchase of said lands by John M. Ward from Murphy Cagle, there was nothing in the records of the probate office, tax assessor's office and tax collector's office to indicate that said lands were State school lands other than the entry in the 'Tract Book' of Winston County.
'Said lands are unimproved timber land with no houses, structures or other improvements thereon whatsoever.'
The bill for injunction (case No. 304; exhibit 'F' to the agreed statement of facts) alleges that the state is the owner of the lands and that 'the respondent claims to have some interest in all or parts' thereof and 'is engaged in the cutting of timber therefrom.' It also alleges 'that there is now pending in this Honorable Court a bill in equity to quiet title to said land.' Apparently, it was intended either to file the bill to quiet title prior to filing the injunction suit or to file both suits at the same time. However, as already noted, the injunction suit was actually filed the day before the filing of the bill to quiet title.
The trial court rendered a final decree on March 4, 1960, holding respondent to be the owner of the lands and that the state 'has no right, title, interest in, or encumbrance upon' said lands or any part thereof. The decree also enjoined both parties, 'and any and all persons claiming through or under them,' from cutting any timber until the decree 'becomes final through lapse of time for taking an appeal, or the final decision of this cause on appeal.' The state brings this appeal from that decree, questioning only that part holding the respondent to be the owner of the lands. The record discloses no action taken by the trial court in the injunction suit.
Section 1109, Tit. 7, supra, prescribes, as a condition to the filing of a bill thereunder, that there be no suit pending 'to enforce or test the validity of such title, claim or encumbrance.' A threshold question, therefore, is whether the bill for injunction, having been filed the day before the filing of the bill to quiet title, is such a suit. It is our view that it is not. See: Irwin v. Shoemaker, 205 Ala. 13, 15, 16, 88 So. 129; Camp v. Conner, 205 Ala. 468, 469, 88 So. 578; Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 157, 77 So. 574; Mobile County v. Knapp, 200 Ala. 114, 115, 75 So. 881; Driver v. New, 175 Ala. 655, 658, 57 So. 437; Hamilton v. Brent Lumber Co., 127 Ala. 78, 84, 28 So. 698; Ashurst v. McKenzie, 92 Ala. 484, 490-491, 9 So. 262; 28 Am.Jur., Injunctions, § 75, p. 572; 43 C.J.S. Injunctions § 54, p. 513. Although a permanent injunction is prayed for, it seems apparent that the purpose of the injunction suit was simply to prohibit the further cutting of timber until...
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