Winter v. City Council of Montgomery

101 Ala. 649 | Ala. | 1893

HARALSON, J.

In the case of Ex parte Sayre, 95 Ala. 288, 12 So. Rep. 378, we-held that an appeal does not lie from an order of a chancellor made in vacation discharging an injunction. According to that ruling, this case is not before us on appeal from the order discharging the injunction.

The decree of the chancellor, however, not only discharges but dissolves the injunction which had been granted. Its language is, “Upon consideration thereof, * * it is now here ordered and decreed that the said injunction be and the same is hereby discharged, as having been allowed improperly and in an improper case, and it is further ordered, that said injunction also be, and the same is, hereby dissolved. ” The grounds upon which he dissolved the writ are not stated. Motions to dissolve proceed necessarily, on the one or the other, or both of two grounds — either for want of equity, or on the coming in of the answer under oath, denying the allegations of the bill, on which its equity rests. — Code, § 3532; E. & W. R. R. Co. v. E. T. Va. & Ga. R. R. Co., 75 Ala. 275. There was no answer filed here, and the consideration of the appeal must, therefore, be confined to the equities of the bill as appear on its face.

Coming to the legal principles upon -which the question at issue is to be determined, we find little or no disagreement in the text books and adjudicated cases. Mr. Black, supported by along array of adjudications from many of the States, lays it down, that any person who owes a duty to the State to pay the taxes on a particular tract of land, can not become a purchaser at the sale of the property for such taxes; or, if he should, in form, buy at such a sale, he does not thereby acquire any right or title to the property better or stronger than what he had before, but his purchase is deemed merely as a mode of paying the taxes, and leaves the title in precisely the position it would have occupied if the payment had been made before, instead of after the land had been put up for sale. So he proceeds : “One who has permitted lots which he holds, to be sold for taxes and purchased by his agent, and who has obtained from the latter a transfer of the certificate of purchase, after the agent has been reimbursed the amount paid upon his bid, by collecting the rents” — or, he might have added, by being repaid such amount in money, by way of redemption of the title — “and has procured from him the tax deeds, for the purpose of strengthening his title to the lots, does not thereby acquire a better title by the tax deeds.” — Black on Tax Titles, § 273, and authorities cited; Blackwell on Tax Titles, §§ 566, 581.

It is everywhere conceded to be a legal and a moral duty every good citizen owes the State and the municipality in which he resides, to pay the taxes which are duly and legally assessed against his property. Without this, good government and a due administration of law, in which every one is alike interested, can not be maintained and enforced. The disqualification of one to purchase land at a tax sale, sold for the purpose of collecting the taxes assessed against it, rests upon the principle that he is under a legal and moral duty to pay the taxes. If he can not do this directly, by becoming himself the bidder at the sale, he ought not to be allowed, and can not be, to acquire a valid title indirectly, by procuring another person to do for him what he can not do for himself — to act as the ostensible bidder at the sale, take the certificate of purchase and the tax collector’s deed, and assign the title afterwards to the owner on his refunding the money and expenses, and thereby derive any advantage. Such an arrangement, as has been held, if not positively fraudulent, is, at any rate, an attempt to evade the law, to which courts will not lend their countenance. The principle running through all the cases, says Mr. Burroughs, “is that when it is the duty of a party to pay the taxes, he can not acquire a title founded on his own default. * * He can not build a title on his own neglect of duty.” In every such instance, the owner will be construed as intending to discharge his duty by relieving the estate from the incumbrances, by extinguishing a title under a sale his own tardiness and neglect of duty had made necessary. — Burroughs on Tax., 352-354 ; Black on Tax Titles, § 276; Donnor v. Quartemas, 90 Ala. 169, 8 So. Rep. 715; Thorington v. City Council, 88 Ala. 548, 7 So. Rep. 363; Bailey v. Campbell, 82 Ala. 345, 2 So. Rep. 646; Jackson v. King, 82 Ala. 433, 3 So. Rep. 232; Johnson v. Smith, 70 Ala. 108; Frank v. Arnold, 73 Iowa 370; Lindley v. Snell, 80 Iowa 103; Varney v. Stephens, 22 Me. 334.

The complainant, in filing this bill, relies on the principle, that whenever lands are properly sold for unpaid taxes imposed on the lands themselves, the purchaser acquires the fee, (Jones v. Randle, 68 Ala. 258; Bur. on Tax., § 122) ; that a sale of such lands frees them in the hands of the purchaser from any and all liens thereon for delinquent taxes for former years. — 2 Desty Taxation, 849; Thorington v. City Council, supra. In the case last cited, it was held that a sale of land for unpaid taxes destroys the lien for prior unpaid taxes, of which no notice was given at the sale, and confers a clear title on the purchaser, if he bought in good faith, for his own benefit, and with his own money and not by fraud or collusion with the delinquent tax payer; but, if the lands are redeemed by the delinquent, they again become subject to the lien for prior taxes. Let us then apply these principles to the facts of this case, as we find them averred in this bill.

For a better understanding of the law and the facts, it is proper to refer to two acts of the legislature, which have an important bearing; the one, entitled, “An act to regulate the sale of real estate for unpaid municipal taxes in the city of Montgomery,” approved February 17, 1885, (Acts 1884-85, p. 767), the 12th section of which provides, “that the certificate of the purchaser under this act, shall authorize the purchaser, or his' assignee, to enter upon and maintain ejectment for the possession of the premises sold against the former owner; * * * and the owner * * * may redeem the same on the terms and conditions prescribed in section nine [of said act] at any time within two years from the time the purchaser enters upon or obtains possession of the property,” The other is an act “For the relief of parties whose lahds have been sold for taxes,” approved Feby. 28,1887 (Acts 1886-87, p. 91) , which provides that, in all cases where lands have been sold for the non-payment of taxes and purchased by the State, and when the title has never passed out of the State, the parties who own said lands at the date of such purchase by the State, or their grantees or assignees, shall be permitted-to redeem said lands at any time within one year after the passage of the act, upon the payment of the taxes due at the date of said sale, and the expenses of said sale, and the annual taxes from the date of said sale to the date of the redemption of said lands; that any person desiring to redeem lands under the provisions of the act shall make application in writing therefor to the Auditor of the State, and by complying with the terms prescribed therein, that the Auditor shall make a deed to said lands, conveying all the right, title and interest of the State in and to the same to the party purchasing.

The case, on its naked presentation of facts in the bill, is, that complainant in the years from 1873 to 1885 was the owner of the lands described in the bill, and had failed for all these years to pay her taxes to the city of Montgomery. A bill was filed against her by said city in the chancery court of Montgomery, to have a lien declared on said lands for the payment of said unpaid taxes on them; that said court, by its decree, declared a lien on said lands and ordered their sale, if said decree was not paid as directed; that the recorder of the city of Montgomery, proceeding, as we must presume, under said act i’egulating sales of real estate for unpaid municipal taxes of the city of Montgomery, ordered said lands sold for the taxes due the city for the year 1894, accruing subsequently to the taxes embraced in the decree of said chancery court, at which sale, Sallie G. Thorington became the purchaser, for the amount of the laxes, costs and, expenses, and received from the clerk of the city certificates of purchase of the respective lots which were sold. This sale and purchase, it is claimed, cut off and destroyed all liens and rights held by said city for taxes claimed to be due and delinquent before that time, which were included in said decree. Under the principles above referred to, the sale might have had the effect claimed for it; but unfortunately for such a claim, it is stated in the bill that complainant has since redeemed said lands from Mrs. Thorinyton, which redemption, we hold, was but the discharge" by complainant, of a legal and moral duty, and had the effect, to relieve the estate from Mrs. Thorington’s title, if it ever existed, by extinguishing her title under that sale, and subjecting the lands to the claim of the city for all of said delinquent taxes. The case stands, therefore, as if Mrs. Thorington had never bid for and received a certificate of purchase and deed from the city to said lands, and the complainant, as to this claim, is remanded to her former relations to the lands. The statements of the bill authorize the inference and indulgence of the fact that Mrs. Thorington was procured to figure in the transaction, as the agent of the complainant.

As to the sale by the Auditor to said Flint, it may be said, on the averments of the bill, that his purchase was in the interest and for the benefit of complainant-. He acted as the grantee, certainly, of Mrs. Thorington; for, while the bill fails, in terms, to state the date of complainant’s redemption from her, it does state, that she “has redeemed the same [said lands] from said Thorington, and now holds the same under her said purchase of all the right, title and interest of the State of Alabama, through Charles L. Flint by deed as aforesaid from his heirs and devisees, freed from all the taxes, costs and charges now attempted to be set up and enforced by said City Council.”

Complainant, then, by refusal to pay her taxes necessitated a sale by the city. Mrs. Thorington, as her agent and for her benefit, bid at said sale, and received complainant’s title, which Avas after\vards redeemed by complainant. While Mrs. Thorington was the apparent owner, she made default in the payment of the accruing taxes on said lands to the State "and county, and forced the State to sell them for the delinquent taxes, and after this, having gone through the form of a redemption from Mrs. Thorington, complainant redeemed the land from the heirs of Flint, and now claims that she holds them freed from all the taxes of the city from 1873 to 1891, except for such as accrued in the year 1884. Flint’s purchase, under the facts stated, we must hold, was in the interest and for the benefit of complainant. His title Avas built on the defaults of complainant and her agent, Mrs. Thorington, and can not be made to sub-serve the purposes for •which it was intended — that of freeing these lands from the just claims of the city on them for its taxes. A chancery court will look through the forms with which the transactions may be clothed, to their real substance, and to the intention of the parties, and will not willingly allow wrong and injustice to prevail.

The acts of the legislature, to which we have referred, allow the purchaser, in each instance, to take possession and control of the property purchased. So far as we are informed by the bill, Mrs. Thorington never took possession of said lands from complainant under the purchase, nor did said Flint take possession of them, but complainant has remained in possession all the while. While these facts, if not true, are amendable defects, and would not, of themselves be allowed to determine the equities of the bill on this appeal, yet, taken in connection with the other facts averred, they serve to strengthen the conclusion we reach.

There was no error in the decree of the chancellor dissolving the injunction, and it is affirmed.