Town of Elba v. Cooper
| Decision Date | 22 June 1922 |
| Docket Number | 4 Div. 952. |
| Citation | 208 Ala. 149,93 So. 853 |
| Parties | TOWN OF ELBA v. COOPER. |
| Court | Alabama Supreme Court |
Rehearing Denied Oct. 12, 1922.
Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.
Bill by R. L. Cooper against the Town of Elba and John F. Brunson its town clerk, to enjoin the sale of property to pay for improvements. From a decree overruling demurrer to the bill defendant town appeals. Reversed and rendered.
W. W Sanders, of Elba, for appellant.
M. A Owen, of Elba, and M. S. Carmichael, of Montgomery, for appellee.
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 So. 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 So. 500, Ann. Cas. 1914A, 887. See numerous authorities cited in note to this case as reported in Ann. Cas. 1914A, 890. 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 P. 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 So 173, Ann. Cas. 1915B, 746, and Birmingham v. Abernathy, 178 Ala. 221, 59 So. 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...
To continue reading
Request your trial