Town of Elba v. Cooper

*151 ANDERSON, O. J. Where a special assessment is void on its face, or a defect in it must necessarily appear in proceedings by a claimant to enforce the lien, it is not such a defect as will be removed by a court of equity as a cloud upon title, since the real owner of the property has his defense always at hand. City of Ensley v. McWilliams, 145 Ala. 159, 41 South. 296, 117 Am. St. Rep. 26, and cases Cited. Indeed, this seems to be the general rule, with the sole exception of a contrary one laid down in our case of City of Birmingham v. Coffman, 173 Ala. 213, 55 South. 500, Ann. Cas. 1914A, 887. See numerous authorities cited in note to this ease as reported in Ann. Cas. 1914A, S90. The bill in this case avers that all of the defects or irregularities complained of appear upon the record of the assessment proceeding as per the minutes and records of the proceedings of the governing board of the town. Indeed, counsel for the appellee, with commendable candor, concede that the rule as above declared is in line with the great weight of authority, and that this bill is defective, unless we follow and reaffirm the case of City of Birmingham v. Coffman, supra. This we are unwilling to do, as said case is in conflict with the great weight of authority, including our own case of Ensley v. McWilliams, supra; and we think that the point of differentiation attempted in said Coffman Case is inapt and illogical, as we do not think that the test is one as to which the courts do or do not take judicial notice of the defect. Courts do not take judicial notice of deeds, yet if a bill is filed to declare a deed a cloud and to remove it, and the deed is void on its face, the court will hold that the bill is without equity, whether the deed is set out in the pleading or introduced in evidence. It is also manifest that the writer of the opinion in the Coffman Case, supra, misconceived and inaccurately stated the holding in Bolton v. Gilleran, 105 Cal. 244, 38 Pac. 881, 45 Am. St. Rep. 33, as this case expressly holds that “there is nothing upon the face of the assessment to show that the lien is not in all respects valid,” and the complainant relied on matters outside the record of the assessment to show the invalidity of the assessment. In the cases of Birmingham v. Wills, 178 Ala. 198, 59 South. 173, Ann. Cas. 1915B, 746, and Birmingham v. Abernathy, 178 Ala. 221, 59 South. 180, this point does not seem to have been raised or suggested, and was therefore not discussed or considered by the court, and neither of these cases approves or reaffirms the Coffman Case as to this point. Indeed; the Coffman Case was, in effect, overruled in the Wills Case, in so far as the former held that the defects relied upon were so fatal to the assessment as to give the complainant any equitable relief against same. It is true that there is a statement in the Wills Case, supra, that the Coffman Case is not in conflict with what was said in the- former in respect to the propriety of a bill to remove a cloud; but it is evident that the writer did not fully comprehend all that was said in the Coffman Case, as the writer in the Wills Case merely conceded that a bill would lie to remove a void proceeding of this sort, but did not state that such would, be the ease if the invalidity appeared upon the face of the record of the assessment. The Coffman Case, supra, is expressly overruled. The complainant also avers that— There has been prepared and is in existence “what purports to be a certified oi* otherwise verified transcript of the proceedings alleged therein to have been had by the mayor and council and other officials of the town of Elba, Ala., which in a trial in a court of law would be prima facie evidence that the things had been done and the proceedings had been had in a regular and lawful way, which would give to the town of Elba a lien on the property of orator for the cost of such improvements, and based upon which a deed executed pursuant to a sale of orator’s property for such cost of such improvements would prima facie entitle the grantee in- such deed to recover your orator’s property.” We know of no statute, and are cited to none, which makes such a certificate or transcript prima facie evidence of the recitals therein, whether true or not, that would relieve a purchaser at the sale of complainant’s property from1 having to establish the validity of the tax proceedings under which he claimed in an action at law for the property. Harton v. Enslen, 182 Ala. 408, 62 South. 696. We do not think that section 3989 of the Code of 1907 is applicable to this question, or was intended to make certificates, transcripts, or deeds pursuant to improvement assessments prima facie evidence of the recitals thereof. This section simply makes any book or code printed under the authority of the governing board, or certified under' the hand of the clerk, prima facie evidence of the due adoption and continued existence of the by-laws or ordinances therein printed. It is unnecessary for us to decide whether or not the defects relied upon and disclosed by the assessment, record are merely irregular, and were waived and cured by a failure of the owner to protest under section 1381 of the Code, or whether or not they rendered the assessment void, in passing, upon the *152 equity of this bill. If of the former class, the complainant was nq,t entitled to equitable relief under the Wills and Abernathy Oases, supra. If it was void upon its face, the complainant had a good legal defense and cannot maintain the present bill. The trial court wrote a clear and concise opinion in this case indicating the views as to the law as expressed in this opinion, but felt constrained to uphold the equity of the bill under the influence of the Coffman Case, supra. Since, however, the said case is overruled, the decree of the circuit court in overriding the demurrer to the bill for want of equity is reversed and one is here rendered sustaining same. Reversed and rendered. All the Justices concur.