Gilmer v. Smith

103 Ala. 228

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

McCLELLAN, J.

Counsel for appellees argue that it is wholly improbable that the redemption by Pauline Smith from Brown could have been in the interest of Walker, when all that Walker had to gain by that tortious course was a release of the land from the payment of the insignificant sum secured by the Segars mortgage, a sum scarcely greater than the consideration passing between Pauline and Brown. This argument is deprived of all weight by the facts that the Segars mortgage had been foreclosed, the period for statutory redemption had passed, and the purchaser at the sale under it had recovered the land in ejectment and was in possession of it before the purchase by Pauline Smith from Brown. So that the land was wholly lost to Walker, unless he could have it redeemed from the tax sale for his own benefit and in such way as that his interest would not appear-and as of consequence the redemption would not enure to Gilmer who held through the Segars mortgage. It was, therefore, obviously to Walker’s interest to attempt to do what the bill charges in this connection. The land itself was about to be lost irretrievably to him. He could not avert the catastrophe by becoming himself the purchaser from Brown. Naturally he wanted to conserve his interest and save the land if he could. Brown was anxious that he should do so. Pauline Smith declared that she wanted to purchase from Brown for Walker, her brother. The wishes, therefore, of each of these parties converged towards the accomplishment of the plan to rescue the land for Walker and his family. Brown suggested the means of accomplishing this end. He “urged Walker to get some of his family to redeem it,” as he Brown, “did not want to keep it from Walker’s wife and children.” Following close upon this, Pauline Smith, a sister of Walker, appeared and redeemed the land, saying that “she wanted to take up the property for her brother.” This rounded and completed the scheme. And we are unable on these facts to reach any other conclusion than that Pauline Smith purchased from Brown at Walker’s instance and wholly for the benefit of the latter, taking the transfer of the tax certificate and afterwards the tax deed to herself in attempted effectuation of a purpose and intent entertained by Brown, Walker and Pauline Smith to defeat Gilmer, or those to whose rights he succeeded under the Segars mortgage, of his or their rights in the premises; and we accordingly hold that the tax deed is fraudulent and void as against the title]of Gilmer, and that the complainant is entitled to the relief prayed in his bill. — Thorington v. City Council, 94 Ala. 266. A decree will accordingly be entered here cancelling the tax deed to Pauline Smith as a cloud on Gilmer’s title. Complainant will be decreed to pay to Pauline Smith whatever sum she properly paid Brown for the certificate of purchase at the tax sale. Defendant will pay the costs in this court and the court below.

Reversed and rendered.