Parker v. Doe ex dem. Burgen

LIGrON, J. The motion to strike the case from docket in the court below was rightly disallowed. JEx parte Lowe, at the present term. It will be impossible to consider the first and third exceptions separately, as they are most intimately connected; and if the action of the court below was correct on the matter involved in the third, then the ruling on the point presented by the first would follow as a consequence. It is manifest, also, that, at the trial, the charge brought to our notice by the third exception must have been prior, in point of time, to the others that were given or refused. It seems, that after the witness (Thorington) had been permitted to testify, against the objection of the plaintiffs, the court, in its original charge to the jury, instructed them to disregard this proof, as the facts deposed to by him could only be shown by the minutes of the City Council. These facts were, that a meeting of the council was held, to pass on the assessment of the year 1840, to correct errors and hear complaints. [257] By tbe twelfth section of tbe act of 1837, entitled, “An act to incorporate tbe city of Montgomery,” it is provided: “ That tbe said City Council shall cause an assessment of taxes to be made in each and every year by some proper and fit person or persons; tbe assessment naming tbe person liable to such taxes when known, and specifying tbe property wben the owner is not known, which assessment shall be returned to tbe Mayor, to be laid before the Mayor and Aldermen; and tbe Mayor shall cause at least ten days public notice to be given that assessment has been made, and of tbe time when the Mayor and Aldermen will proceed to hear and determine upon all complaints which may be made against such assessment, and it shall be their duty to correct errors, and supply omissions; and when tbe same has been passed upon by tbe said City Council, tbe said assessment shall have the force and effect of a judgment and execution, and may be collected by levy and sale of property, on giving such notice as is required by law, on executions from the Circuit Court,” &c. (Code of Laws of City of Montgomery, 30.) By tbe eighth section of tbe act of 1828, entitled, “An act to amend an act to incorporate the Town of Montgomery,” and which is still in force since the style of the corporation is changed to “ tbe City of Montgomery,” it is provided, “ that the said Intendant and Councillors shall appoint a Clerk, whose duty it shall be to keep a fair record of the proceedings,” &c. It was evidently the intention of the Legislature to require the City Council to keep a record of all its proceedings, and it provides an officer, whose duty it shall be to make out and keep the records thus required. The language defining the-duties of the Clerk of the Council is as strong in its import, as that employed in relation to clerks of courts. The importance, indeed the absolute necessity of recording the proceedings of all meetings of tbe council, held in pursuance of the twelfth section of the act of 1837, will readily be seen, when we advert to the object of such meetings, and the legal effect of their proceedings. No assessment of taxes can be perfect or complete until it has been passed upon by such a meeting; and its acts, when the assessment is corrected and adjusted by them, are clothed with the authority of [258] judgment and execution. Upon these, tbe tax collector can proceed to sell tbe real estate witbin tbe city limits, when tbe taxes remain unpaid, and to this record tbe plaintiff in error must resort to make out bis title, for it is well settled, that when one claims title under execution sale, be is bound to show a judgment, or bis title fails. By the charter of the city of Montgomery, section twelve, supra, it is further provided, “that all sales made under, or by virtue of such assessment, shall convey to the purchaser the same title as if sold by execution from the Circuit Court; and the collector of said city shall, in case of sale of real estate, give the purchaser a deed of conveyance, which shall vest in the purchaser the same interest that the person bad against whom such tax was assessed at the time of such assessment, and where the owner is not known, the entire equitable and legal interest in such real estate, discharged from all liens.” It is also provided in the last clause of the same section, “ that the duties required of the said Mayor and Aldermen, except giving notice and issuing capias ad satisfaci-endum■, may be devolved upon a board of assessors, and the assessments approved by them shall have the same force and effect as if approved by the Mayor and Aldermen.” By express provision of this section, the sale under the assessment approved and sanctioned by the Mayor and Aldermen, or by the board of assessors appointed by them, is to convey to the purchaser such title, as sales under writs of execution from the Circuit Court would vest in purchasers under them. When real estate is thus sold under execution, unless a judgment can be shown which will support the execution, the purchaser takes no title, for be purchases under a void process. The same rule must apply here, and that which the act of incorporation substitutes for the judgment of the Circuit Court, that is, the proceedings of the Mayor and Aldermen, or their substitutes, a board of assessors, correcting and sanctioning'the assessment, must be shown to justify the sale by the tax collector, and support the title of the purchaser. By what testimony can tbe existence of this judgment, or its equivalent be shown? In tbe case of. a judgment, tbe answer is plain: by tbe record of tbe court in which it is obtained, and by that alone. And one reason for this is to be [259] found in the fact, that with us real estate cannot be sold by process from any court which is not a court of record. It is highly improbable to suppose that the Legislature could have intended to enable a corporation to do that without a record, which it denied to the inferior tribunals of the State, which are not required to keep a record of their proceedings; and especially is it so, when we see that by the charter of this corporation it has provided an officer, and made it his duty to keep a fair record of its proceedings. For this reason, we think, the Court might well have refused to let the testimony of Thorington go to the jury, when it was objected to by the plaintiffs, and that it did not err, when it instructed the jury to disregard it. The views here expressed do not at all conflict with the ruling of the Supreme Court of the United States, in the case of the Bank of the United States v. Dandridge, (12 Wheat. 64) which was relied on by the plaintiff in error. The decision in that case was influenced by the consideration, that, the charter of the bank did not require it to keep a record of the acceptance and approval of the bonds of its officers; and as there was no such requisition in the charter, and the bond of Dandridge, as cashier, was filed among its papers, and he had acted in that capacity in the Branch at Richmond for a number of years, the court said, the acceptance and approval of the bond would be presumed. In this case, however, we have seen, the charter requires a record to be kept of the proceedings of the corporate authorities, and no presumption in favor of the acts of its officers in this respect can be indulged, in the absence of such record. This testimony being excluded from the jury, there remained no evidence whatever that the meeting of the council required by the charter was ever held, to act on the assessment of 1840; and consequently, the first charge asked for by the plaintiff in error was abstract, and had it been given, could have had no other effect than to mislead the jury; the court, therefore, very properly refused it. The records of the proceedings of the council, which were produced and identified by the clerk, did not disclose that any such meeting had taken place; and the advertisement of the Mayor calling such a meeting, in the absence of any record evidence of its having [260] convened, would not justify tbe presumption tbat it bad been beld, and tbat its acts were such as to perfect tbe assessment, and give to it tbe force and effect of a judgment and execution against those whose property bad been assessed. Tbe charge given by tbe court, tbat tbe proceedings of tbe council could only be proved by tbe record of their acts, made according to tbe requirements of tbe charter, was a fair exposition of tbe law, and, in our opinion, free from all error. Tbe second charge asked was correctly refused, for it cannot be tolerated tbat an act void and improper in itself, unless supported by another and a previous one, should be allowed to go to tbe jury for tbe purpose of creating a presumption tbat tbe former bad been done. This would be inverting tbe rule of evidence in purchases under execution sales, and allowing tbe writ of execution to prove tbe judgment on which it purports to have issued; instead of producing tbe judgment to sustain tbe execution and sale. There is no error in tbe record, and tbe judgment must be affirmed.