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The original bill, filed by the appellant, seeks to enjoin the defendants, the City of Russellville and the Sheriff of Franklin County, from selling the lands described in the bill, of which the complainant, appellant here, is in possession, under a writ of venditioni exponas, for the reason, as alleged in the bill, that "said sale would constitute a cloud upon the title of this complainant in and to said lands, and therefore, said sale should be enjoined."
While the bill in some of its allegations conforms to the requirements of the statute, Code of 1923, § 9905, Code 1940, Tit. 7, § 1109, authorizing bills to quiet title, it does not aver that the defendants claim or are reputed to claim some right, title or interest in or incumbrance upon such lands, nor does it call upon them "to set forth and specify his [their] title, claim, interest, or incumbrance, and how and by what instrument the same is derived and created." Code of 1923, § 9906, Code 1940, Tit. 7, § 1110.
It is, therefore, strictly speaking, not a statutory bill to quiet title within the rule that a bill and answer conforming to the requirements of the statute presents every issue necessary to a settlement of the controversy. McCaleb v. Worcester et al., 224 Ala. 360, 140 So. 595; Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60, 131 So. 223.
The bill alleges "that the complainant is the owner of and in the peaceable possession" of the real estate described in the bill, and the answer admits "that the complainant owns the real estate described in the bill, although subject to the lien of the respondent City of Russellville, as hereinafter set out."
The answer alleges:
"In the year 1927, and continuously thereafter until sometime in the year 1935, the tract of land in litigation was owned by one W. L. Chenault, who is the complainant's brother-in-law, and as to whom she is successor in title, and stands in privity of title. In said year 1927 the City of Russellville initiated proceedings under the statute for the assessment of said tract of land for the benefits accruing to it from the improvement of a street on which the same abuts. By judgment of the City Council an assessment was made final on, to-wit, December 11, 1928.
"Thereafter the said W. L. Chenault appealed to the Law
Equity Court of Franklin County, Alabama, from said judgment of assessment. The appeal was duly tried de novo in said court, as provided by law, and resulted in a judgment and decree of the Law Equity Court dated May 12, 1937 assessing such tract of land in the sum of $4,000.00, and fixing a lien thereupon for the payment of the said assessment. A correct copy of said final judgment of the Law Equity Court is hereto attached, marked Exhibit 'A' and made a part of this answer as fully as if set forth at length herein. The said judgment has never been paid, and therefore constitutes an enforceable lien upon said tract of land in the sum of $4,000.00, together with the interest thereon at the legal rate from the date thereof, and the costs and expenses of selling and conveying.
"Pending the above mentioned appeal, the said W. L. Chenault suffered such tract of land to sell for unpaid state and county
taxes, and at the tax sale the same was bid in for the State of Alabama. Thereafter, and during or about the year 1938, the complainant acquired title by tax conveyance from the State of Alabama; although the respondents are informed, and believe,that in fact and in truth, she took title in trust for the useand benefit of the said W. L. Chenault, in an effort to escapethe lien of the above mentioned judgment of assessment and theycall upon her to deny and disprove this averment." (Italics supplied.)
The defendants make their answer a cross-bill, and pray, in short (1) that it be decreed that the title of the complainant is subordinate to the statutory lien of the City of Russellville arising under § 2199 of the Code 1923, Code 1940, Tit. 37, § 538, for local improvements, and that complainant's rights be limited to the recovery of the taxes and charges incurred in the foreclosure of the state's lien for state and county delinquent taxes, for which the lands were sold and bought in by the state, and, in the alternative (2) that the City of Russellville be allowed to redeem from said tax sale, and to that end said defendants offer to do equity.
The court overruled the complainant's demurrer to the cross-bill and from that decree this appeal is prosecuted.
The demurrer filed by the complainant, appellant here, to the cross-bill, takes the point, among others, that its allegations show that the state became the purchaser of the property at tax sale made by the taxing authorities for the default of the owner, W. L. Chenault, to pay the state and county taxes assessed against him, and that complainant purchased from the state and acquired the title at such purchase.
We pass over the italicized allegations of the cross-bill with the observation that they are not allegations of fact, but at most allegations of information and belief, and are without probative force, to controvert the admitted fact that complainant is the owner and holds the legal title to the property. Cullman Property Company v. H. H. Hitt Lumber Co. et al., 201 Ala. 150, 154, 77 So. 574.
The insistence of appellant is that the sale of the lands for taxes, in due course, and purchase by the state at the tax sale foreclosed the state's paramount lien which merged in and became a part of the title, and this title is superior to all incumbrances or liens existing prior to the sale.
The pertinent provisions of the statute establishing the lien in favor of the state, counties, and municipalities for taxes assessed, attaching from and after October first of the tax year, are:
"These liens shall be superior to all other liens and shall exist in the order named and each of such liens may be enforced and foreclosed by sale for taxes as provided in this Act, or as other liens upon property are enforced." Gen.Acts 1935, p. 566, § 372, Code 1940, Tit. 51, § 884.
These provisions have existed and been brought forward in the laws on taxation through the years. Gen.Acts 1919, p. 449, § 416, Code 1907, § 2093.
The appellees' contentions, on the other hand are (we quote from the brief):
"1. That the lien of the City of Russellville for the enforcement of its street improvement assessment, and the lien of the state of Alabama for the collection of its taxes, are of equal rank and dignity; that neither has precedence over the other; that when the state of Alabama acquired title at tax sale, it acquired the tract of land in litigation subject to the assessment lien; and that when the complainant took title from the state of Alabama, she acquired the same subject to the judgment of assessment. That therefore, the city of Russellville has the right to enforce its lien, and complainant is not entitled to a decree quieting title.
"2. That if cross-complainant be mistaken in alternative number one, the complainant acquired by her conveyance from the state only the right to enforce against the lands in dispute the taxes and tax sale costs paid by her to the state of Alabama, together with the interest thereon.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The original bill, filed by the appellant, seeks to enjoin the defendants, the City of Russellville and the Sheriff of Franklin County, from selling the lands described in the bill, of which the complainant, appellant here, is in possession, under a writ of venditioni exponas, for the reason, as alleged in the bill, that "said sale would constitute a cloud upon the title of this complainant in and to said lands, and therefore, said sale should be enjoined."
While the bill in some of its allegations conforms to the requirements of the statute, Code of 1923, § 9905, Code 1940, Tit. 7, § 1109, authorizing bills to quiet title, it does not aver that the defendants claim or are reputed to claim some right, title or interest in or incumbrance upon such lands, nor does it call upon them "to set forth and specify his [their] title, claim, interest, or incumbrance, and how and by what instrument the same is derived and created." Code of 1923, § 9906, Code 1940, Tit. 7, § 1110.
It is, therefore, strictly speaking, not a statutory bill to quiet title within the rule that a bill and answer conforming to the requirements of the statute presents every issue necessary to a settlement of the controversy. McCaleb v. Worcester et al., 224 Ala. 360, 140 So. 595; Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60, 131 So. 223.
The bill alleges "that the complainant is the owner of and in the peaceable possession" of the real estate described in the bill, and the answer admits "that the complainant owns the real estate described in the bill, although subject to the lien of the respondent City of Russellville, as hereinafter set out."
The answer alleges:
"In the year 1927, and continuously thereafter until sometime in the year 1935, the tract of land in litigation was owned by one W. L. Chenault, who is the complainant's brother-in-law, and as to whom she is successor in title, and stands in privity of title. In said year 1927 the City of Russellville initiated proceedings under the statute for the assessment of said tract of land for the benefits accruing to it from the improvement of a street on which the same abuts. By judgment of the City Council an assessment was made final on, to-wit, December 11, 1928.
"Thereafter the said W. L. Chenault appealed to the Law
Equity Court of Franklin County, Alabama, from said judgment of assessment. The appeal was duly tried de novo in said court, as provided by law, and resulted in a judgment and decree of the Law Equity Court dated May 12, 1937 assessing such tract of land in the sum of $4,000.00, and fixing a lien thereupon for the payment of the said assessment. A correct copy of said final judgment of the Law Equity Court is hereto attached, marked Exhibit 'A' and made a part of this answer as fully as if set forth at length herein. The said judgment has never been paid, and therefore constitutes an enforceable lien upon said tract of land in the sum of $4,000.00, together with the interest thereon at the legal rate from the date thereof, and the costs and expenses of selling and conveying.
"Pending the above mentioned appeal, the said W. L. Chenault suffered such tract of land to sell for unpaid state and county
taxes, and at the tax sale the same was bid in for the State of Alabama. Thereafter, and during or about the year 1938, the complainant acquired title by tax conveyance from the State of Alabama; although the respondents are informed, and believe,that in fact and in truth, she took title in trust for the useand benefit of the said W. L. Chenault, in an effort to escapethe lien of the above mentioned judgment of assessment and theycall upon her to deny and disprove this averment." (Italics supplied.)
The defendants make their answer a cross-bill, and pray, in short (1) that it be decreed that the title of the complainant is subordinate to the statutory lien of the City of Russellville arising under § 2199 of the Code 1923, Code 1940, Tit. 37, § 538, for local improvements, and that complainant's rights be limited to the recovery of the taxes and charges incurred in the foreclosure of the state's lien for state and county delinquent taxes, for which the lands were sold and bought in by the state, and, in the alternative (2) that the City of Russellville be allowed to redeem from said tax sale, and to that end said defendants offer to do equity.
The court overruled the complainant's demurrer to the cross-bill and from that decree this appeal is prosecuted.
The demurrer filed by the complainant, appellant here, to the cross-bill, takes the point, among others, that its allegations show that the state became the purchaser of the property at tax sale made by the taxing authorities for the default of the owner, W. L. Chenault, to pay the state and county taxes assessed against him, and that complainant purchased from the state and acquired the title at such purchase.
We pass over the italicized allegations of the cross-bill with the observation that they are not allegations of fact, but at most allegations of information and belief, and are without probative force, to controvert the admitted fact that complainant is the owner and holds the legal title to the property. Cullman Property Company v. H. H. Hitt Lumber Co. et al., 201 Ala. 150, 154, 77 So. 574.
The insistence of appellant is that the sale of the lands for taxes, in due course, and purchase by the state at the tax sale foreclosed the state's paramount lien which merged in and became a part of the title, and this title is superior to all incumbrances or liens existing prior to the sale.
The pertinent provisions of the statute establishing the lien in favor of the state, counties, and municipalities for taxes assessed, attaching from and after October first of the tax year, are:
"These liens shall be superior to all other liens and shall exist in the order named and each of such liens may be enforced and foreclosed by sale for taxes as provided in this Act, or as other liens upon property are enforced." Gen.Acts 1935, p. 566, § 372, Code 1940, Tit. 51, § 884.
These provisions have existed and been brought forward in the laws on taxation through the years. Gen.Acts 1919, p. 449, § 416, Code 1907, § 2093.
The appellees' contentions, on the other hand are (we quote from the brief):
"1. That the lien of the City of Russellville for the enforcement of its street improvement assessment, and the lien of the state of Alabama for the collection of its taxes, are of equal rank and dignity; that neither has precedence over the other; that when the state of Alabama acquired title at tax sale, it acquired the tract of land in litigation subject to the assessment lien; and that when the complainant took title from the state of Alabama, she acquired the same subject to the judgment of assessment. That therefore, the city of Russellville has the right to enforce its lien, and complainant is not entitled to a decree quieting title.
"2. That if cross-complainant be mistaken in alternative number one, the complainant acquired by her conveyance from the state only the right to enforce against the lands in dispute the taxes and tax sale costs paid by her to the state of Alabama, together with the interest thereon. The cross-bill called upon the complainant to set forth and specify her tax liens and tax charges and interest, and offered to pay the same, if the court should find alternative number one not justified. The cross-bill specifically offered to do equity.
"3. That if alternative number one and number two should be both found incorrect, nevertheless the City of Russellville had a valid lien for street improvements upon the date of the tax sale; that it has never received from the purchaser at tax sale, or from anyone else, written notice of the sale for taxes; and that therefore the city has the statutory right to redeem from the tax sale, which right it desires to exercise. Again, the cross-bill called upon the complainant
to set forth and specify the charges necessary to effect a redemption, and offered to pay the same in the event that the previously mentioned alternatives should be decreed" against cross-complainants.
The statutes relied on by appellees to support their first contention, stated above, are, Code 1923, § 2199, 2202, and Act 270, approved November 8, 1932, Gen.Acts Extra Session 1932, p. 273, Code 1940, Tit. 37, §§ 538, 543.
Said Section 2199, is in the chapter providing for local improvements, provides: "At such meeting or any adjourned meeting the council shall proceed by order or resolution to fix the amount of the assessment against each lot or tract of land described and included in said assessment roll, and all such assessments, from the date of such order or resolution, shall be and constitute a lien on the respective lots or parcels of land upon which they are levied, superior to all other liens,except those of the state or county for taxes." (Italics supplied.)
Said Section 2202, provides: "The enforcement by the state, county, city or town, of its lien for taxes on any lot upon which has been levied an assessment for any improvement authorized by this article, shall not operate to discharge, or in any manner affect the lien of the municipality for said assessment, but a purchaser at a tax sale by the state, county, city, or town of any lots or parcel of lands upon which an assessment has been levied, shall take the same subject to such assessment." (Italics supplied.)
Said act, the constitutional enactment of which is here raised in supplemental argument, provides: "All liens for public improvements which cities and towns in this State now have or may hereafter acquire under the general laws of this State shall continue until same are paid or satisfied in full." Gen.Acts Extra Session 1932, p. 273.
The question presented is not without difficulty. As before stated, the appellees in their answer and cross-bill concede that when the state bid in the property at the sale for state and county taxes it acquired title to the property, and has conveyed the title to the complainant, appellant here.
The contention is that in view of Code 1923, § 2202, she took the title incumbered with the lien of the City of Russellville for local improvements.
"It is held in most jurisdictions that the title conveyed by a sale for nonpayment of taxes is not merely the title of the person who had been assessed for the taxes and had neglected to pay them, but a new and paramount title to the land in fee simple absolute created by an independent grant from the sovereign and free from all equities and incumbrances existing prior to the sale upon the title of the previous owner. Under this view the sale extinguishes all prior incumbrances on the land or interests in it, though held by persons who were not liable for the tax or in default for not paying it, such as the lien of pre-existing mortgages, and judgments, landlords' liens, and inchoate right of dower." 26 R.C.L. 401, § 360; 61 C.J. 1290, § 1795; 61 C.J. p. 1307, § 1828; Jones v. Randle,68 Ala. 258, 259, 267; Randle, Adm'r v. Boyd, 73 Ala. 282, 287.
This is the principle recognized in Driggers v. Cassady,71 Ala. 529, 534, where it was observed: "The alienation of the land by the owner, Hargrove, although made prior to the date of sale, could not affect the lien of the State for delinquent taxes. The sale to Oates, made in October, 1878, was after thislien had accrued, which, in point of time, is fixed by statute to be the first of January of the year for which the taxes were assessed. — Code, § 375. Such a lien overrides any title acquired by purchasers, whether with or without notice, and in however good faith it may have been made, and for whatever value. It follows the land in the hands of the vendee, all persons being chargeable with a knowledge of its existence. If any other rule were allowed to prevail, the State might be subjected to intolerable embarrassments in the prompt collection of its revenues, effected through the fraud and artifices of tax delinquents, making sales of their effects so as to evade the payment of their honest taxes."
"Whether the purchaser at a sale of land for taxes acquires a new and original title or a derivative title depends upon applicable statutory provisions." 61 C.J. 1307, 1308, § 1828; Gunter v. Townsend et al., 202 Ala. 160, 79 So. 644.
So, also, whether the state acquires a higher title, when the property is bid in by the Judge of Probate for the state for like purchases at the sale, also depends upon the legislative intent expressed or necessarily implied in respect to such purchase. 61 C.J. 1306, 1307, § 1827.
The authorities are, generally, to the effect that assessment liens arising under statutes authorizing public improvements of streets "are subject to any and all liens or claims whatsoever which the state might have against the property, including liens of the state for taxes, unless the case falls within a statute placing assessment liens and state tax liens upon a parity." 44 C.J. 806, § 3416.
Ordinarily, as we judicially know, bidders at tax sales are volunteers seeking to acquire property for less than its value, and it is permissible for lien holders to purchase at such sale and protect their interests, or they may pay the taxes and acquire the right to enforce the state lien. Such lien holders may redeem from such tax sale and thus protect their rights or interests in the property.
The state on the other hand is a purchaser ex necessitate. The statute provides: "If no person shall bid for any real estate offered at such sale an amount sufficient to pay the sum specified in the decree of sale, and the costs and expenses subsequently accruing, the Judge of Probate shall bid in such real estate for the State at a price not exceeding the sum specified in such decree and such subsequently accruing cost and expenses." Gen.Acts 1935, p. 356, 357, § 230, Code 1940, Tit. 51, § 265.
The effect of the purchase by the state, unless otherwise provided withdraws the property from further taxation, until redeemed or sold by the state, Gen.Acts 1935, p. 357, § 232, Code 1940, Tit. 51, § 267; and the state is entitled to the possession of the lands immediately upon delivery of the certificate of purchase, by the Judge of Probate, and may recover the same in an action of ejectment. Gen.Acts 1935, p. 363, § 251, as amended, Code 1940, Tit. 51, § 286.
In short, title to the property vests in the state in virtue of the purchase, without the necessity of executing a deed, while other purchasers do not acquire title until after the expiration of the redemption period, three years, and the execution of a deed by the Judge of Probate upon surrender of the certificate of purchase. The title of such other purchaser is derivative. The statute provides: "And such deed shall convey to and vest in the grantee all the right, title, interest and estate of the person whose duty it was to pay the taxes on such real estate, and the lien and claim of the State and County thereto, but it shall not convey the right, title or interest of any reversioner or remainderman therein." Acts 1935, p. 360, § 241, Code 1940, Tit. 51, § 276; Gunter v. Townsend, supra.
From these several statutory provisions, the last legislative expression on the subject, the intent is clear to give the state a paramount lien for taxes due, and when the state becomes the purchaser to merge the lien in the title and confer on the state a title in fee superior to all incumbrances on the property. The State, in such circumstances, is not "a purchaser at a tax sale" within the meaning of § 2202 of the Code 1923, Code 1940, Tit. 37, § 543. Any other interpretation would render the statute, Gen.Acts 1935, p. 566, § 372, Code 1940, Tit. 51, § 884, which gives the state a lien "superior to all other liens," wholly impotent and meaningless, and would result in placing upon the state the burden of discharging other liens and incumbrances as a prerequisite to realizing and collecting its revenues. Such embarrassment was not contemplated nor intended. Acts 1935, p. 376, § 285.
The City of Russellville had, under the provisions of § 268 of the Revenue Act 1935, p. 368, Code 1940, Tit. 51, § 303, the right to redeem at any time before the title passed out of the state.
It also insists that it was entitled to notice of the purchase by the state and that it was entitled to redeem within a year thereafter. Acts 1935, p. 1112, § 251, as amended. Said amended section provides:
"If the mortgage or other instrument creating a lien under which a party seeks to redeem is duly recorded at the time of said tax sale, the said party shall, in addition to the time in this act specified, have the right to redeem said real estate sold, or any portion thereof covered by his mortgage or lien, at any time within one year from the date of written notice from the purchaser of his purchase of said lands at tax sale, served upon such party, and notice served upon either the original mortgagee or lien holder or their transferee of record, or their heirs, personal representatives or assigns, shall be sufficient notice. Such notice shall be given by registered mail, return receipt demanded, addressed to the last known address of the mortgagee or lien holder." Acts 1935, p. 1112, § 251, Code 1940, Tit. 51, § 286. (Italics supplied.)
The cross-bill does not state the date of the tax sale nor does it allege that
the lien of the City of Russellville was a "lien holder of record." These provisions are dealing with liens recorded in the office of the Judge of Probate of the county in which the lands were situated, and they do not contemplate that a purchaser or subpurchaser shall search elsewhere for such "recorded liens."
The foregoing is sufficient, we think, to indicate that the demurrer to the cross-bill was well taken and the court erred in overruling same.
Reversed and remanded.
GARDNER, C. J., THOMAS and FOSTER, JJ., concur.
On Rehearing.