Turnham v. Potter

• Decision Date: 21 December 1972
• Citation: 271 So.2d 246,289 Ala. 685
• Parties: Pete TURNHAM v. Coleman POTTER et al. SC 77.
• Court: Alabama Supreme Court

Page 246

271 So.2d 246

289 Ala. 685

Pete TURNHAM v. Coleman POTTER et al.

SC 77.

Supreme Court of Alabama.

Dec. 21, 1972.

James Noel Baker, Opelika, for appellant.

No brief for appellees.

FAULKNER, Justice.

This case comes to us on appeal from the Circuit Court of Coffee County, Elba Division, in Equity.

The dispute between the parties involves title to 60 acres of wooded lands in Coffee County, Alabama. Ella Potter, seized thereof in fee simple, died intestate in 1954. Thereafter, taxes became delinquent, and on June 17, 1955, the land was sold to appellant Turnham at a tax sale in front of the courthouse in Elba, under authority of Code, Title 51, § 249 et seq. After the three-year waiting period prescribed by Title 51, § 276 ¹ had expired, a deed was delivered to Turnham in June, 1958, and duly recorded. He continued to pay the taxes on the land every year.

In 1966 the appellees, heirs and next of kin of Ella Potter, brought an action in equity to declare the tax sale void, praying the chancellor to declare their right to redeem the land, as provided by Title 51, § 303 et seq. ² After further amendments to the bill, and the overruling of demurrers, a jury was impaneled and the cause tried. The court instructed the jury, without explanation, that as a matter of law the tax sale deed was void 'because of the failure of Compliance (sic) with the statutory procedure in the sale of land for collection of delinquent taxes.' The appellant, Turnham, excepted to this charge, but appears latter to have abandoned his contentions on this point. Since appellant has not argued the point, he has waived it, and for purposes of this appeal we must assume that the tax deed was in fact ineffective to pass title. However, this court has held that under § 295, Title 51, Code of Alabama 1940 (Recompiled 1958), ³ whether a tax sale was void or valid, continuous adverse possession of the land by the purchaser at the tax sale for three years after he became entitled to demand a tax deed from the Judge of Probate will bar action for recovery by the former owner except in instances mentioned in the statute. Perry v. Marbury Lumber Co.,212 Ala. 542, 103 So. 580 (1925); Doe v. Styles, 185 Ala. 550, 64 So. 345 (1914). Even if the tax deed delivered to Turnham was invalid, it was sufficient to furnish color of title. Pierson v. Case, 272 Ala. 527, 133 So.2d 239 (1961); Clanahan v. Morgan, 268 Ala. 71, 105 So.2d 429 (1958); Merchants National Bank of Mobile v. Lott, 255 Ala. 133, 50 So.2d 406 (1951).

The jury was in fact instructed that despite the void deed Turnham could have established title to the land by three years of adverse possession. This was the sole question submitted to them. A verdict was returned that appellant had not possessed the lands adversely to the appellees for three or more years prior to the filing of suit in 1966. The chancellor thereupon decreed that the heirs and next of kin had a right to redeem, and that the tax sale purchaser, Turnham, had no right, title, or interest in the land, save the right to be reimbursed for the taxes he had paid, including interest. Turnham now appeals to this court from the decree.

Numerous errors are assigned by appellant. He argues, inter alia, that complainant had no right to jury trial, and that the court erred in making various other rulings.

The evidence for the respondent upon trial included testimony that Turnham had purchased the parcel at a tax sale in front of the courthouse at Elba on June 17, 1955, and that after a three year waiting period had expired he had received a deed from the Probate Judge on June 21, 1958, which was duly recorded. At this time he went down to look at the land. Later, he employed several experts to advise him what to do with the parcel, and went upon it with each of them. On one of these occasions he spent time chatting with a neghbor and visiting in the latter's house. He had an aerial photograph made, and consulted various offices and experts. He brought his wife and children down, and picnicked on the land. Finally, Turnham testified that he decided the land was unsuitable for cultivation, and should be left in its wooded state. He testified that he subsequently revisited the land an average of at least three times a year. On one occasion, Turnham testified that he and another man had cut some limbs and briars along a quarter to a half-mile of the land line. Testimony by the Tax Collector indicated that Turnham had paid taxes on the land every year since 1955.

On behalf of the complainants, testimony showed that none of them had occupied the parcel at any time during the relevant period. Thomas Potter, one of the complainants, testified that he had cut timber there in the interval between 1955 and 1958, and took out kindling wood for personal use in 1959. Since that time neither he nor any other of the complainants had entered the land. He testified that he had asked a neighbor to let him know 'if he saw anybody' on the land. However, neither he nor any of the other complainants had paid any taxes on the land at any time.

During the entire period concerned (1954--1966), none of the parties involved on either side of the litigation resided upon or physically occupied the land. It remained vacant.

On this evidence the jury returned a verdict that Turnham had not adversely possessed the land for at least three years prior to 1966.

At the outset, we must agree with appellant's contention that jury trial as of right did not lie in this action. Code, Title 7, § 1112 provides for jury trial, upon request of either party, in an action to quiet title to land commenced under Title 7, § 1109, with result binding upon the chancellor. This court has held that trial by jury as a matter of right in a court of chancery depends solely upon statutory or constitutional provisions. Curb v. Grantham, 212 Ala. 395, 102 So. 619 (1925). In Ex Parte Baird, 240 Ala. 585, 586, 200 So. 601 (1941), this court said:

'If the bill of complaint in this case is one to quiet title * * * the petitioner is entitled to have the issues involved tried by a jury * * * otherwise not. The nature and character of the bill must be determined from a consideration of the facts averred in it. Bledsoe v. Price & Co., 132 Ala. 621, 32 So. 325.'

The original bill in this case alleged heirship to Ella Potter, tax sale to respondent, and invalidity thereof. It prayed for:

'(A) final declaratory judgment or decree, declaring (Respondent's) said decree of sale void, and the decree made to Respondent pursuant to sale under said decree void, and that Complainants have a right to redeem said lands upon payment by them to Respondent such amounts as may be due him * * *.'

Later this was amended by addition of an averment that complainants were in peaceful possession of the land, and a prayer:

'(T)hat the tax title under which Respondent claims be removed as a cloud on the title to said property of the Complainants.'

Taking into account the facts averred in the pleading, we believe the bill remained essentially one to redeem land under Title 51, § 303, et seq., rather than one to quiet title under Title 7, § 1109. As such, there was no right to jury trial. Ex Parte Baird, supra; Webb v. Bank of Brewton, 265 Ala. 568, 93 So.2d 154 (1957).

We note that it does not appear on the face of the record whether the court considered himself bound by the jury verdict, as provided by Title 7, § 1112, or was employing it in an advisory capacity. The chancellor, without need of statutory or constitutional authorization, has the inherent power to impanel an advisory jury. Alabama, Tenn., & Northern Railway Co. v. Aliceville Lumber Co., 199 Ala. 391, 74 So. 441 (1917); White v. Berrey, 266 Ala. 379, 96 So.2d 725 (1957). The jury in this case could not exercise binding authority, because the bill was not under Title 7, § 1109. Therefore we will assume for purposes of this appeal that it was advisory only to the final decree of the chancellor.

In reviewing a decree, this court has held that where the court below had opportunity to hear the witnesses, the decree is entitled to a presumption in its favor on appeal. Hope of Alabama Lodge of Odd Fellows v. Chambless, 212 Ala. 444, 103 So. 54 (1925); Hodge v. Joy, 207 Ala. 198, 92 So. 171 (1922). However, if it is 'clearly contrary to the great weight of the evidence', this court will reverse on appeal. Webb v. Bank of Brewton, supra, 265 Ala. at 572, 93 So.2d at 157.

We think the decree below in favor of the complainants clearly contrary to the great weight of...