Opinion
1 Div. 906.
June 11, 1936.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
V. R. Jansen and Wm. J. Young, both of Mobile, for appellants.
Security for cost, having been signed by one of the appellants, although appeal taken on behalf of herself and others, is sufficient. Mancill v. Thomas, 216 Ala. 623, 114 So. 223; Louisville N. R. Co. v. Shikle, 206 Ala. 494, 497, 90 So. 900; Sherrod v. McGruder, 209 Ala. 260, 96 So. 78; New Morgan County Building Loan Ass'n v. Plemmons, 210 Ala. 16, 97 So. 46. Motion to dismiss for failure of party to join in appeal will not prevail where subsequently the party appears as appellant and assigns error. Beatty v. McMillan, 226 Ala. 405, 147 So. 180. Performance of acts required by a decree on part of the respondents does not estop them from appealing from the decree. Code 1923, §§ 6144, 6145; Nixon v. Bolling, 145 Ala. 277, 40 So. 210; Bell v. Crowe, 221 Ala. 609, 130 So. 377; 10 Ency.Pl. Pr. 769. The issue raised by the denial of jurisdiction by Tanner should have been disposed of before submission of the cause on the merits. Code 1923, § 6547. Stein v. McGrath, 128 Ala. 175, 30 So. 792; Clark v. Whitfield, 213 Ala. 441, 105 So. 200; Hall v. Caperton, 87 Ala. 285, 6 So. 388; Ex parte Dunlap, 209 Ala. 453, 455, 96 So. 441; State v. Benners, 172 Ala. 168, 174, 55 So. 298; Tyson v. Decatur Land Co., 121 Ala. 414, 26 So. 507. It appearing that both complainant and respondents claimed the entire title, the court was without jurisdiction to determine ownership of the legal title. Jordan v. Phillips Crew Co., 126 Ala. 561, 567, 29 So. 831; Yellow Pine Export Co. v. Sutherland-Innis Co., 141 Ala. 664, 667, 37 So. 922. Legal title as well as possession of the land being in Tanner, the land could not be ordered sold for division. Tubb v. Fort, 58 Ala. 277; Roy v. Abraham, 207 Ala. 400, 92 So. 792, 25 A.L.R. 101; Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 So. 880, 15 A.L.R. 23; Street v. Watts, 202 Ala. 622, 81 So. 564; Peavey v. Peavey, 189 Ala. 256, 257, 66 So. 474. But, if it be determined that appellants owned a lien on, rather than legal title to, the land, this lien should not have been limited to the payment of taxes only, but should be extended to improvements made after purchase. Code, § 2107; Davis v. Elba B. T. Co., 216 Ala. 632, 114 So. 211; McFry v. Stewart, 219 Ala. 216, 121 So. 517; Phillips v. Sipsey C. M. Co., 218 Ala. 296, 303, 118 So. 513.
Jesse F. Hogan, of Mobile, for appellee.
Where a party does any act which either directly or indirectly recognizes the decree as valid, he waives his right to take an appeal from the decree. 36 C.J. 665, 669; Shannon v. Mower, 186 Ala. 472, 65 So. 338; Phillips v. Towles, 73 Ala. 406; Hinson v. Brooks, 67 Ala. 491; Riddle v. Hanna, 25 Ala. 484; Knox's Distributees v. Steele, 18 Ala. 815, 54 Am.Dec. 181. An appeal for minor parties should be taken by the guardian ad litem in the name of the minors. Riddle v. Hanna, supra. Tanner did not set up in his answer the pendency of former suit in abatement of the second suit. He thereby waived the alleged abatement. Ex parte Dunlap, 209 Ala. 453, 96 So. 441. But the decree in the former suit did not adjudicate or settle the rights or equities of the parties thereto. Storey, Eq.Pl. 649; Code 1923, §§ 9331, 9333, 9334; Sandlin v. Anders, 210 Ala. 396, 98 So. 299. It was proper to bring in the adverse claimant in suit for partition. Code, §§ 9321-9334.
Upon consideration of this cause in consultation, the majority conclude that the averments of the bill did not suffice to overturn the general rule that one relying upon tax title has the burden of establishing the regularity of the proceedings — there being nothing offered by defendants which made out a prima facie case for such regularity. Morris v. Waldrop, 213 Ala. 435, 105 So. 172.
The court is in accord with all that is said in the opinion of Justice GARDNER, to whom the case was first assigned for consideration, with the exception above noted, which exception, however, presents a vital difference and leads to an opposite result. Under this view, the decree is due to be affirmed. It is so ordered.
Affirmed.
ANDERSON, C. J., and BOULDIN, BROWN, FOSTER, and KNIGHT, JJ., concur.
GARDNER and THOMAS, JJ., dissent.
On Motion.
The motion to dismiss the appeal is not well taken. Security for cost was duly given and approved, with the recital that it was on behalf of Eula Tanner and her three minor children therein named. Under the statute (section 6143, Code), the adult defendant Eula Tanner could appeal by giving the required security and the minors made parties as therein provided. But no necessity exists in the instant case for this procedure for the reason that the guardian ad litem here appears, joins in the appeal, and assigns error. This voluntary appearance suffices for all purposes. Beatty v. McMillan, 226 Ala. 405, 147 So. 180; Mancill v. Thomas, 216 Ala. 623, 114 So. 223.
The final decree from which the appeal is prosecuted orders a sale of the property and a reference. Clearly the mere fact that these appellants voluntarily appeared at the reference and participated therein cannot be said to work a forfeiture of the right to appeal. There existed also a right to appeal without superseding the decree, and the mere fact that at the sale Eula Tanner was the highest bidder for the property does not operate as an estoppel or waiver of this right. No confirmation of sale is shown, and therefore no completed sale appears. Any one purchasing the mortgage of one of the tenants in common on the strength of any such unconfirmed and incomplete sale would do so at his own risk. The principle of caveat emptor would plainly apply. The principle of the cases cited by appellee (Phillips v. Towles, 73 Ala. 406; Shannon v. Mower, 186 Ala. 472, 65 So. 338; Bell v. Crowe, 221 Ala. 609, 130 So. 377) rests upon the exercise of the discretionary power of the court "for the prevention of injustice, oppression, or vexation" (Phillips v. Towles, supra), which we consider entirely inapplicable here.
The motion to dismiss the appeal is therefore overruled.
On the Merits.
As to the merits of the cause, little need be said. Appellants question the jurisdiction of the court upon the theory that defendant W. H. Tanner, Jr., through whom they claim title, was not a tenant in common with the other parties to the suit, but claimed independently thereof. This question we consider as settled adversely to appellants in Sandlin v. Anders, 210 Ala. 396, 98 So. 299, construing section 9334 of the Code, with later adjudications found noted in Alexander v. Landers, 230 Ala. 167, 160 So. 342.
As to the matter of res adjudicata, it is conceded that all defenses, including those of this character, may be set up in the answer. Section 6547, Code. But we do not consider it was sufficiently alleged in the answer of these appellants so as to constitute an issue in the cause. Clearly the answer of W. H. Tanner, Jr., did not suffice. It merely made reference to a cause then pending, with the added averment that the purpose of the bill was unknown. And these appellants, as his heirs, added nothing in the answer except that the suit previously pending had been determined favorably to Tanner. At the most, we think these answers in connection with the bill's averments may be possibly construed as showing a determination of the one question that there was no such contract between the tenants in common as heirs of Robert Page and E. G. Simpson, as would justify any decree of specific performance. And we may add that a consideration of the proof fully justifies such conclusion.
Appellants argue also that the tenants in common should be required to pay for the permanent improvements placed on the property by W. H. Tanner, Jr., after his purchase from Simpson. But here again we find no reference to any such claim in the pleadings, and it would seem the chancellor was justified in ignoring this matter as an issue in the case. We may note, however, in passing, that in the case of Davis v. Elba Bank Trust Co., 216 Ala. 632, 114 So. 211, cited by appellants, the improvements were made with the knowledge and consent of all parties, a question upon which this record is silent, and we express no opinion concerning the same.
Upon the question of title appellants claim under a deed from E. G. Simpson who purchased from the state auditor July 30, 1929, the state having purchased the land when the same was sold for unpaid taxes for the year 1926, Simpson having executed a deed to W. H. Tanner, Jr. (appellants are his heirs), in May, 1930, and placed him in possession, which possession continued to the institution of this suit. The heirs of Robert Page showed his prior possession, and some acts of ownership by them after his death. Doubtless relying upon the presumption of title and right to recover on such prior possession (Wilson v. Glenn, 68 Ala. 383; 5 Eng.Dig. p. 271), the tenants in common insist the burden was upon these appellants to show the regularity of the tax sale. Conceding for the purpose in hand, this would be the ordinary rule, yet we think complainant in her bill has assumed for herself this burden (19 Corpus Juris, 1154). She has not relied upon prior possession for presumptive title, but the bill discloses the sale of the property for its taxes, the lapse of time when the state auditor sold the property to Simpson and the sale by Simpson to W. H. Tanner, Jr. No facts are shown in any manner impeaching the regularity of these proceedings, but complainant has the general averment that the deed to Simpson was effective only to convey the lien of the state. The answer specifically denies any such limitation upon the effectiveness of such deed. No proof whatever appears in this record upon this question.
Under this state of the pleading and proof, the conclusion is that the decree should be reversed and the cause remanded for further consideration on evidence touching the title to the property, and these appellants' rights appertaining thereto.
I therefore respectfully dissent, and am authorized to state Justice THOMAS concurs in these views.