Tanner v. Case

• Decision Date: 14 June 1962
• Docket Number: 1 Div. 976
• Citation: 273 Ala. 432,142 So.2d 688
• Parties: John L. TANNER v. A. B. CASE.
• Court: Alabama Supreme Court

Page 688

142 So.2d 688

273 Ala. 432

John L. TANNER v. A. B. CASE.

1 Div. 976.

Supreme Court of Alabama.

June 14, 1962.

Gordon & Jansen and Caffey, Gallalee & Caffey, Mobile, for appellant.

Austill, Austill & Austill, Mobile, for appellee.

SIMPSON, Justice.

The original bill of complaint was filed by appellee September 1, 1949. It was a bill to quiet title in complainant to certain lands located in Mobile County, and to cancel 'whatever document the respondent may have or hold under or to which he wrongfully claims title or interest in said property'. Paragraph 3 of the bill alleges that respondent claims or is reputed to claim some right, title, interest or encumbrance upon the suit property and avers certain tax deeds of the property to respondent's predecessors in title. The prayer offers to pay whatever is found to be due by any lien or encumbrance, etc. The bill as amended sought a redemption of the lands from void tax sales. It was alleged that complainant was in possession of the property, either actual or constructive, at the time of the filing of the bill. By further amendment complainant alleges 'that if the complainant is mistaken as to complainant being in possession of said lands either actual or constructive at the time of the filing of the bill of complaint in this cause, then complainant alleges in the alternative that complainant is and was at the time of the filing of the bill of complaint * * * the owner of the lands described in the bill of complaint; that respondent is in possession of said lands claiming to own the same by virtue of a sale to the State of Alabama for payment of ad valorem taxes and deeds to respondent's predecessors in title from the State Land Commissioner of Alabama; that said tax sales were and are void. Complainant offers to do equity and to pay all taxes, fees and costs necessary to redeem the lands from said tax sales'. We are impressed with the redundancy of amendments to the original bill, since under the authorities the original bill would have sufficed to allow the complainant to effect a redemption from a tax sale.

There was a further allegation to the effect that respondent cut timber on the land during the pendency of the suit and a prayer for a reference, etc.

The stipulation of the parties set out below will adequately set out the issues and facts:

'It is stipulated by the complainant and the respondent in this suit that at the time of the filing of the bill of complaint in this cause on September 1, 1949 there was no suit pending to test the title to, interest in, or rights to possession of this land.

'It is further stipulated that as to the Southeast Quarter of the Northeast Quarter of said Section 19, the property was patented out of the United States Government and by mesne conveyances was well vested in W. R. Dawes on April 11, 1932 by Quit Claim Deed and Recorded December 30, 1932 in Deed Book 342, page 358; Wm. R. Dawes, a widower, by statutory warranty deed dated November 6, 1935, recorded November 25, 1935, conveyed said property to Howell W. Kitchell; Howell W. Kitchell and Dorothy Abbott Kitchell, husband and wife, conveyed said property by statutory warranty deed dated January 22, 1948, recorded August 5, 1948, to the complainant, A. B. Case. With reference to the same 40 the Respondent claims title by Tax Deed from the State Land Commissioner to Lora L. Young, dated April 12, 1944 and recorded May 13, 1944 in Deed Book 356, page 112, reciting that said property was sold for non-payment of 1935 taxes, assessed in the name of W. R. Dawes; and Lora L. Young and Claude V. Young, her husband, by statutory warranty deed conveyed said 40 to the respondent John L. Tanner on August 21, 1944 and recorded June 27, 1945 in Deed Book 377, page 489.

'As to the Northeast Quarter of the Northeast Quarter of said Section 19, this 40 was patented out of the United States Government and by mesne conveyances title was vested in W. R. Dawes by statutory warranty deed dated June 16, 1925 and recorded July 9, 1925 in Deed Book 205, page 112; W. R. Dawes, a widower, conveyed said property by statutory warranty deed to Howell W. Kitchell, dated November 6, 1935 and recorded November 25, 1935, in Deed Book 257, page 180; Howell W. Kitchell and wife, Dorothy Abbott Kitchell, conveyed said property by statutory warranty deed dated January 22, 1948 and recorded August 5, 1948 in Deed Book 460, page 183 to the Complainant, A. B. Case.

'As to this same 40 the Respondent claims title thereto through a tax deed from the State Land Commissioner of Alabama to Lora L. Young, dated April 12, 1944, and recorded May 13, 1944 in Deed Book 356, page 112, reciting that said property was sold for non-payment of 1935 taxes, assessed in the name of W. R. Dawes; and by statutory warranty deed from Claude V. Young and Lora L. Young, husband and wife, to the respondent, John L. Tanner, dated August 21, 1944 and recorded June 27, 1945 in Deed Book 377 page 489.

'As to the Northwest Quarter of the Southwest Quarter of said Section 19, title was patented out of the United States Government and by mesne conveyances as well vested in Rufus C. Dawes on March 12, 1936, by Quit Claim Deed from W. R. Dawes as Trustee for Mobile Farm Land Trust; Rufus C. Dawes died intestate as to this 40 on January 8, 1940, leaving as his sole heirs at law Jean Dawes Sherman, Margaret Dawes Jefferson, Helen D. Watermulder, William M. Dawes, Palmer Dawes and Charles C. Dawes and his widow, Helen Palmer Dawes, who is now dead, dying in 1941.

'On October 16, 1947 by statutory warranty deed recorded November 20, 1947 in deed Book 442, page 682, Jean Dawes Sherman and husband Robert T. Sherman conveyed said property to A. B. Case; and on October 22, 1947 by statutory warranty deed recorded November 20, 1947, Deed Book 442, page 689, William M. Dawes and wife Grace Dawes conveyed said property to A. B. Case; and on October 24, 1947 by statutory warranty deed recorded in Deed Book 442, page 684 Margaret Dawes Jefferson and Beverly Jefferson, Husband and wife, conveyed said property to A. B. Case; and on October 25, 1947 by statutory warranty deed recorded November 20, 1947, Deed Book 442, page 686, Charles C. Dawes and Mignon M. Dawes, husband and wife, conveyed said property to A. B. Case; and on November 3, 1947 by statutory warranty deed recorded November 20, 1947 in Deed Book 442, page 691, Helen Dawes Watermulder and Louis F. Watermulder conveyed said property to A. B. Case.

'As to this same 40 the respondent claims title by a Tax Deed from the State Land Commissioner of Alabama to Lora L. Young, dated April 12, 1944 and recorded May 13, 1944 in Deed Book 356, page 111, reciting that said property was sold for non-payment of 1937 taxes assessed in the name of W. R. Dawes, Trs., Rufus Dawes; and Lora L. Young and Claude V. Young, by statutory warranty deed, to the Respondent John L. Tanner, dated August 21, 1944 and recorded June 27, 1945 in Deed Book 377 page 489.

'It is further stipulated that since the dates of the tax deeds to Lora L. Young above referred to that the taxes on said lands have been assessed in the name of and taxes paid by either Lora L. Young or John Tanner; that neither Case nor his predecessors subsequent to 1944 paid any taxes or assessed said lands, and that the Complainant A. B. Case after he obtained his deeds of conveyance offered to assess said lands as a double assessment but was not permitted to do so and has paid no taxes and made no assessments on said lands since the date of the conveyances to the Complainant.

'It is further stipulated that the form of all deeds described in this stipulation as being of record, except the tax deeds to Lora L. Young herein described, are sufficient to pass whatever title the grantor had on the dates of the execution of said deeds.'

The case was tried ore tenus and the court entered a final decree in favor of complainant, finding that all tax deeds were void and that title to said lands was vested in complainant and that 'the respondent John L. Tanner and his predecessors in title have not shown by the evidence such possession of the lands described in and covered by the tax sales for non-payment of State and County ad valorem taxes * * * as to preclude the complainant from his right, as owner of said lands, to redeem the same from said void tax sales'.

The court further found that respondent cut and removed timber from said land and ordered a reference to ascertain the dates, amounts and reasonable value of timber cut and removed after the filing of the bill, and to determine the amount required for the redemption of said lands from the tax sales.

From this decree respondent has appealed.

Appellant makes numerous assignments of error. However, he states in brief that 'the theory seriously insisted upon is that as a bill to redeem from a tax sale, the complaint did not contain equity because it was not filed within the time limited by statute for redeeming from tax sales.'

In Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So.2d 411, we stated that the purpose of the statute (Title 51, § 296, Code) 'was to save to an owner of land sold for its taxes the right to redeem it without limit of time provided he has such possession of it, as may be sufficient for that purpose.' National Fireproofing Corp. v. Hagler, 226 Ala. 104, 145 So. 421; Georgia, etc. Co. v. Washington Realty Co., 205 Ala. 288, 87 So. 794; Chestnutt v. Morris, 223 Ala. 46, 135 So. 344; Threadgill v. Home Loan Co., 219 Ala. 411 122 So. 401; Bell v. Propst, 220 Ala. 641, 127 So. 212; Morris v. Card, 223 Ala. 254, 135 So. 340, 344; Burdett v. Rossiter, 220 Ala. 631, 127 So. 202.

The...