106 Ala. 604 | Ala. | 1894
— The appellee, Brown, sued to recover a one-fifth interest in the lands described in the complaint. There is no controversy as to the fact that Mollie Scott at one time owned the fifth interest in the
The defendants deduce title as follows : On the the 29th of October, 1894, Mollie Scott executed a mortgage on the lands to R. S. Skelton, which he foreclosed by power of sale, on the 3d of- December, 1888, at which sale Oaffey and Bynum, two of the defendants, became the purchasers, and on the 7th of December the mortgagee, Skelton, executed to them a deed of conveyance. At the foreclosure sale, notice was given by Mollie Scott by her attorney, that she forbade .the sale of her interest in the property.
Robert T. Scott, another defendant, claims title to the land, under a deed of conveyance executed to her by Mollie Scott o.n the 14th of June, 1888.. She also claims title by virtue of having redeemed the lands in August, 1889, which had been previously sold for taxes. Robert T. Scottwas a sister of Mollie Scott, and so long as Mollie Scott retained her title and interest in the lands, they were tenants in common. After the foreclosure sale under the mortgage, R. S. Skelton filed a bill in the chancery court for a partition of the land’ in -controversy. Mollie Scott, R. T. Scott, Oaftey and Bynum were parties defendant to the bill for partition. Brown, the plaintiff, was not a party to the bill. The bill alleged that the interest of Mollie Scott had been conveyed by the mortgage, and facts to show that Robert T. Scott had not acquired her interest. Robert T. Scott answered the bill, set up the deed of conveyance of June, 1888, to her
We have been unable to discover any conflict in tho evidence. It will be seen from the foregoing statement of facts, that the mortgage executed by Mollie Scott to Skelton in 1884, antedated any right or claim of plain-riff against Mollie Scott, but it was executed by Mollie Scott when sho was a minor. Her disabilities were removed in September, 1887. The evidence is clear that she did no act after that time to affirm the mortgage. On the contrary, the evidence is clear that she disaffirmed and repudiated the mortgage as a binding conveyance. She gave notice, by her attorney on the day of the foreclosure sale, that her interest could not be soid. Pri- or to that timo, in June, 1888, she had executed a deed with covenants of general warranty to her sister, Robert T. Scott, an act utterly inconsistent with the affirmance of the mortgage. — 10 Amer.& Eng. Encyc.of Law, 650,652 and notos ; Craig v. Van Bebber, 18 Amer. St. Rep. notep. 666 ; McCarthy v. Nicrosi, 72 Ala. 332. The decree of the chancery court .determined that the claim of Robert T. Scott under the deed of conveyance of June 18th, 1888, was superior to that of the mortgagee, and the purchasers at the foreclosure .sale. As against the mortgage and those deriving title through it, the plaintiff was entitled to recover.
The deed of Robert T. Scott bore date June 15th, 1888. This antedated the levy of plaintiff’s attachment, his judgment and sheriff’s deed. The consideration for this deed was love and affection, and was voluntary. The foundation of plaintiff’s demand against Mollie Scott, under which the attachment was levied, was the breach of a warranty of a deed,- executed by her to plaintiff on May 14th, 1888, about one month prior to the date of the deed of the defendant in attachment to Robert T. Scott. In the case of Bibb v. Freeman, 59 Ala. 612, it was said : “The covenantee of a covenant of general warranty, who is evicted by a title paramount and outstanding at the time the covenant is entered into, is regarded as a creditor, not from the time of eviction, but from the
The sale of the land for non-payment of taxes was without authority, and the purchaser acquired no title by his purchase. A valid assessment of the property is indispensable to give the probate court jurisdiction to declare a lien and decree a sale for the unpaid taxes. In the case of Jackson v. King, 82 Ala. 432, the lands were assessed for taxation as the property ‘ ‘of the estate of Andrew King, deceased,” and it was held “that the sale and the purchase at tax sale vested no title in the purchaser.” — Crook v. City of Anniston, 93 Ala. 4. The lands in the case at bar were assessed as follows : “Estate of R. T. Scott, dec’d, one lot of land occupied by Thos. Hodge, township 4, range 6.” Under the influence of the foregoing decisions, the assessment was invalid, and the fact that the lands were bid in by the State did not divest the title of the owner. We might add that the record nowhere shows, by legal evidence, that Thos. Hodge ever occupied the lands in litigation. Robert T. Scott never obtained a deed to the lands from the Auditor. She redeemed them under section 610 of the Code, and the Auditor gave to her a certificate releasing all claims to the land acquired by the State at the tax sale. The lands were redeemed August 2d, 1889.
Prior to the execution of the voluntary conveyance by Mollie Scott to R.T.Scott, they were tenants in common of the land. Before and at the time of the execution of the voluntary conveyance, plaintiff was a creditor of the grantor, Mollie Scott. The conveyance was constructively fraudulent and void as to him. His attachment was levied in December, 1888, prior to the date of redemption, but by his purchase at sheriff’s sale, he succeeded to and acquired whatever interests and rights' Mollie Scott held and owned, prior to her voluntary conveyance to Robert T. Scott. The redemption of land by one tenant in common inures to the benefit of a co-tenant. — Donner v. Quartermas, 90 Ala. 164; Johns v. Johns, 93 Ala. 239; Bailey v. Campbell, 82 Ala. 342.
Section 606 of the Code which declares that “no action for the recovery of real estate sold for the payment
In any view we take of the case, whether considered with the évidence which on motion of plaintiff was excluded, or without such evidence, the plaintiff was entitled to the general affirmative charge.
Affirmed.