Opinion
6 Div. 951.
May 21, 1942. Rehearing Denied June 30, 1942.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Bill in equity by Basil A. Wood, as administrator of the estate of Bettie Lash, deceased, against John C. Curry, as State Land Commissioner, and others, to enjoin exercise of control or possession of land, to cancel tax sale proceedings and for accounting. From a decree sustaining a demurrer to the bill and dismissing it, complainant appeals.
Affirmed.
Basil A. Wood and John T. Batten, both of Birmingham, for appellant.
The equity court will enjoin the threatened unlawful and illegal interference with the possession of the ward's homestead where the ward's damages are, in their nature, irreparable and incapable of measurement in money. Scofield v. Perry Creamery Co., 234 Ala. 560, 176 So. 195; Dean v. Coosa County Lbr. Co., 232 Ala. 177, 167 So. 566; Tidwell v. Hitt Lbr. Co., 198 Ala. 236, 73 So. 486, L.R.A. 1917C, 232; Story, Eq.Jur. §§ 928, 929; Lyon v. Hunt, 11 Ala. 295, 46 Am.Dec. 216; Hamilton v. Brent Lbr. Co., 127 Ala. 78, 28 So. 698; New v. Driver, 180 Ala. 176, 60 So. 798. If the tax proceedings were insufficient to transfer title, then the title remained in plaintiff and the equity court could enjoin the defendants from committing the continuous and threatened acts of trespass against the homestead. Dean v. Coosa County Lbr. Co., supra; Tidwell v. Hitt Lbr. Co., supra. Where owner was insane her real estate is exempt from ad valorem taxation to the value of $2000. Code 1923, § 3022; State ex rel. Burbridge v. St. John, 143 Fla. 876, 197 So. 549.
Thos. S. Lawson, Atty. Gen., and John W. Lapsley and J. Edw. Thornton, Asst. Attys. Gen., for appellees.
One not in peaceable possession may not maintain a bill to quiet title to land against the holder of a tax title. Code 1940, Tit. 7, § 1109; Bank of Henry v. Elkins, 165 Ala. 628, 51 So. 821; Joiner v. Glover, 201 Ala. 279, 78 So. 55; Frazier v. Frazier, 211 Ala. 176, 100 So. 118; King Lbr. Co. v. Spragner, 176 Ala. 564, 58 So. 920; May v. Granger, 224 Ala. 208, 139 So. 569. There is no equity in the bill as one to redeem from tax sale, the statutory provisions for redemption being not only adequate and complete, but exclusive. Code 1940, Tit. 51, §§ 303-327; Osborne v. Waddell, 176 Ala. 232, 57 So. 698; Sheffield City Co. v. Tradesman's Nat. Bank, 131 Ala. 185, 32 So. 598; Worthington v. Clapp, 227 Ala. 142, 149 So. 73; Chappell v. Solomon, 235 Ala. 120, 178 So. 13. Cf. Farmer v. Hill, 240 Ala. 416, 199 So. 820. Bill to enjoin alleged acts of trespass in renting and collecting rents from tenants on the land cannot be maintained against trespassers in actual possession. Kay v. Adams, 223 Ala. 33, 134 So. 628; Federal Land Bank v. Davis, 228 Ala. 85, 152 So. 226; Fleming v. Moore, 122 Ala. 399, 26 So. 174. Renting and collecting rents does not constitute such continuous trespasses or irreparable damage as will sustain bill to enjoin trespass. Kellar v. Bullington, 101 Ala. 267, 14 So. 466. Cf. Tidwell v. Hitt Lbr. Co., 198 Ala. 236, 73 So. 486, L.R.A. 1917C, 232; Bowling v. Crook, 104 Ala. 130, 16 So. 131; Cullman Prop Co. v. Hitt Lbr. Co., 201 Ala. 150, 77 So. 574. There is adequate remedy at law. Kellar v. Bullington, supra.
The appeal is from a decree sustaining a demurrer to a bill in equity as amended and dismissing the bill for want of equity.
The bill as amended discloses that real estate, owned by an insane person, was assessed for taxes for the year 1932, assessable as of October 1, 1931; that the lands were sold for nonpayment of taxes in November, 1933, and purchased by the State; that thereafter, on demand of the State Tax Commission, or other representative of the State in the premises, the tenant in possession attorned to and has paid rents to the State.
John C. Curry, as State Land Commissioner, his deputy, and others acting on their behalf, were parties respondent. The person in actual possession is not made a party.
The theory of the bill, in one aspect, is that the property, not over $2,000 in value, the owner being insane, was wholly exempt from ad valorem taxes, that such exemption was self-operative, without making any claim therefor, that the assessment was void and all proceedings leading to the tax sale were void, including the order of sale; and that the certificate of sale in due form of law was void and clothed the State with no right or title.
The bill as amended further alleges the entire proceedings were void and passed no right or title upon numerous grounds upon which tax sales are held void, or ineffective to pass title.
The bill prays for an injunction restraining respondents from exercising any control over or holding possession of the property through tenants or otherwise; for the cancellation of the order of sale and certificate of purchase; for an accounting for rents, etc.
Apart from any question of exemption to an insane owner without a claim of exemptions, any question of the power and duty of a tax assessor to pass upon the sanity of one not judicially ascertained to be insane, the bill is at fault in claiming the entire property of the value of $2,000 as exempt from taxation at the time.
Code of 1923, § 3022 (6) exempted from taxation property of the insane "to the extent of one thousand dollars." The Act of October 7, 1932 (Acts Extra Session 1932, p. 88) amended this subdivision so as to read: "All persons who have been legally declared insane * * * to the extent of $2,000.00." This act was enacted after the close of the tax year beginning October 1, 1931, and did not enlarge the exemption here involved.
It follows there are unpaid taxes on this property, secured by tax liens. The bill avers no offer to pay or to redeem before suit filed. Full statutory provisions are made for ascertaining the amount of taxes due, and payment of same as a condition to recover in ejectment by the owner. Code of 1923, §§ 3096, 3102.
The bill is not only insufficient but negatives any basis for a statutory bill in equity to quiet title. Code of 1923, § 9905 et seq., Code 1940, Tit. 7, § 1109 et seq. While it declares the parties in possession mere trespassers, it clearly discloses an exclusive possession under claim of tax title, and seeks to oust the parties from such possession, to employ injunctive process in place of ejectment at law.
Nor does the bill make a case for removal of a cloud on the title. That such a bill can not be maintained by one out of possession against one in actual possession claiming title, has long been the settled law. This because of an adequate remedy at law. The lack of such adequate remedy where complainant is in possession, and another claims an interest, but brings no suit to test it, gave birth to our statute to quiet title. Cooper et al. v. W. P. Brown Sons Lumber Co., 214 Ala. 400, 108 So. 20.
Neither does the bill make a case for injunctive relief against continuous or recurring trespasses upon lands under the doctrine of Tidwell v. H. H. Hitt Lumber Co. et al., 198 Ala. 236, 73 So. 486, L.R.A. 1917C, 232, and cases applying that doctrine. The equity in such case is protection against waste, such as results from removal of standing and growing timber, deemed an irreparable injury. The possession and rental of property is not of this class.
Other questions, such as non-interference by bill in equity with the public authorities, charged with the duty of bringing in the State's revenue, or, when a suit against an official is a suit against the State, need not be considered.
Affirmed.
GARDNER, C. J., and FOSTER and LIVINGSTON, JJ., concur.