Busken v. AmSouth Bank, N.A.

504 So. 2d 231, 1987 Ala. LEXIS 4098
CourtSupreme Court of Alabama
DecidedJanuary 23, 1987
Docket85-1207
StatusPublished

This text of 504 So. 2d 231 (Busken v. AmSouth Bank, N.A.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Busken v. AmSouth Bank, N.A., 504 So. 2d 231, 1987 Ala. LEXIS 4098 (Ala. 1987).

Opinion

TORBERT, Chief Justice.

This is a quiet title action concerning the mineral interest in certain lands in Marion County. All evidence was submitted by stipulation. Both plaintiff AmSouth Bank and defendant Joseph C. Busken, Jr., as executor of the estate of Ernestine P. Vaughan, sought to quiet title to this mineral interest. The trial court held for Am-South and quieted title in the bank. Busk-en’s motion for new trial was overruled by operation of law, Rule 59.1, Ala.R.Civ.P., and he appealed.

Both AmSouth and Busken trace their respective titles back to Deepwater Coal and Iron Corporation. No taxes were paid on the mineral interest for the year 1926. Plaintiff introduced a 1934 deed from Hugh Morris to the First National Bank of Birmingham (now AmSouth) and a 1934 decree from the United States District Court for the Northern District of Alabama showing that Morris had been appointed receiver of Deepwater, with authorization to sell all of Deepwater’s assets and property.

Busken introduced a 1938 deed to the mineral interest from the State of Alabama to W.H. Bowlin (defendant’s predecessor in title) reciting that the Probate Court of Marion County had entered a decree for the sale of the mineral interest for non-payment of taxes on May 15, 1928, and that the mineral interest was sold on June 11, 1928, to the State of Alabama.

Neither party has developed the minerals, and thus neither party has been in actual possession of the minerals. See Shelton v. Wright, 439 So.2d 55, 57 (Ala.1983). Busken and his predecessors in title have paid taxes on the mineral interest since 1940. AmSouth and its predecessor in title have paid taxes on the mineral interest since 1942.

An action to quiet title under the Grove Act, Code 1975, § 6-6-560 et seq., may be commenced when any one of the following situations is shown to exist:

“(1) When the complainant is in the actual, peaceable possession of the lands.
“(2) When neither the complainant nor any other person is in the actual possession of the lands and complainant has held color of title to the lands, or interest so claimed, for a period of ten or more consecutive years next preceding the filing of the bill, and has paid taxes on the lands or interest during the whole of such period.
[233]*233“(3) When neither the complainant nor any other person is in the actual possession of the lands and complainant, together with those through whom he claims, [has] held color of title and paid taxes on the lands or interest so claimed for a period of ten or more consecutive years next preceding the filing of the bill.
“(4) When neither the complainant nor any other person is in the actual possession of the lands and complainant and those through whom he claims have paid taxes during the whole of such period of ten years on the lands or interest claimed, and no other person has paid taxes thereon during any part of said period.”

Gulf Land Co. v. Buzzelli, 501 So.2d 1211, 1213 (Ala.1987) (quoting from Fitts v. Alexander, 277 Ala. 372, 375, 170 So.2d 808, 810 (1965)); Shelton v. Wright, supra. From the evidence, it appears that AmSouth comes within situation (2) above. The issue before us is whether the trial court was correct when it held that AmSouth’s title was valid and that Busken’s title was not.

Two questions about AmSouth’s title must be resolved in order to determine whether AmSouth’s title is valid. The first question is whether the receiver’s deed from Morris to the First National Bank of Birmingham is valid. The second question is whether the “catch-all” conveyance clause in the receiver’s deed was sufficient to transfer this mineral interest.

As to the validity of the 1934 receiver’s deed, that deed recites that the sale had been made by the ancillary receiver of Deepwater Coal and Iron Corporation and that the sale had been confirmed by the United States District Court for the Northern District of Alabama. Normally, “the recitals of an ancient deed (free from suspicion) are prima facie evidence of the recited facts_” Lyons v. Taylor, 231 Ala. 600, 603, 166 So. 15, 17 (1936). A deed 30 years old, or older, is considered to be ancient. Stewart v. Peabody, 280 Ala. 5, 8, 189 So.2d 554, 557 (1966). This receiver’s deed is clearly ancient; however, a different rule applies to ancient deeds that purport to have been executed under judicial authority:

“However, where an instrument purports to have been executed by an executor, administrator, guardian, receiver, sheriff, constable, or other officer, under authority which in the ordinary course would appear from judicial or other public records, the instrument even though ancient is not admissible in evidence, nor is it to be regarded as having been effectual, as in the passing of title, unless record proof of the authority is produced if available.”

29 Am.Jur.2d Evidence § 858, at 959 (1967).

“The general rule is that, where a deed or other instrument which purports to have been executed by virtue of a power of attorney, or other power, is of such age as to be admissible as an ancient document, the existence of the power authorizing its execution will be presumed and need not be proved, unless the power is recorded so that the evidence is perpetuated, in which case the deed is not admissible without the production of the power, or an authenticated copy thereof, however ancient it may be....”

32A C.J.S. Evidence § 746, at 38 (1964).

Busken claims that AmSouth’s receiver’s deed is invalid because AmSouth did not produce evidence of judicial confirmation of the sale. It is clear that a receiver’s sale of property must be confirmed by the court overseeing the sale, but the question before us is what kind of record proof is needed in order to make a receiver’s deed admissible and effectual in a quiet title action. This Court has not yet addressed this question. The Texas Supreme Court appears to require an order confirming the sale. “A confirmation of the sale, or something from which a confirmation might be inferred, or at least something done by the purchaser giving him the right to have the sale confirmed, must have been shown to enable him to claim title under it.” Baumgarten v. Frost, 143 Tex. 533, 538, 186 S.W.2d 982, 985 (1945). However, other jurisdictions require only that when the deed purports to have been executed under a recorded power, the power must be shown. Fell v. Young, 63 Ill. 106, 110 [234]*234(1872); Butterfield v. Miller, 195 Fed. 200, 208 (6th Cir.1912); Wilson v. Snow, 228 U.S. 217, 221, 33 S.Ct. 487, 489, 57 L.Ed. 807 (1913). Further, the two excerpts above from American Jurisprudence 2d and Corpus Juris Secundum do not suggest the requirement of a confirmation order; they suggest only the requirement of a showing of the recorded power.

In this case, AmSouth did produce the court order that gave Morris the authority to transfer Deepwater’s assets, and the deed recites the confirmation of the sale. With such an independent source evidencing the receiver’s authority and the deed’s recital of the sale’s confirmation, we hold that this showing was sufficient to make the receiver’s deed admissible and effectual.

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Related

Fitts v. Alexander
170 So. 2d 808 (Supreme Court of Alabama, 1965)
Gulf Land Co., Inc. v. Buzzelli
501 So. 2d 1211 (Supreme Court of Alabama, 1987)
Lavender v. Ball
100 So. 2d 331 (Supreme Court of Alabama, 1958)
Shelton v. Wright
439 So. 2d 55 (Supreme Court of Alabama, 1983)
Wilson v. Snow
228 U.S. 217 (Supreme Court, 1913)
Lyons v. Taylor
166 So. 15 (Supreme Court of Alabama, 1936)
Morris v. Mouchette
199 So. 516 (Supreme Court of Alabama, 1940)
Baumgarten v. Frost
186 S.W.2d 982 (Texas Supreme Court, 1945)
Fell v. Young
63 Ill. 106 (Illinois Supreme Court, 1872)
Stewart v. Peabody
189 So. 2d 554 (Supreme Court of Alabama, 1966)
Butterfield v. Miller
195 F. 200 (Sixth Circuit, 1912)

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Bluebook (online)
504 So. 2d 231, 1987 Ala. LEXIS 4098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/busken-v-amsouth-bank-na-ala-1987.