Wise v. State

• Decision Date: 29 June 1922
• Docket Number: 4 Div. 991.
• Citation: 93 So. 886,208 Ala. 58
• Parties: WISE v. STATE ET AL.
• Court: Alabama Supreme Court

93 So. 886

208 Ala. 58

WISE v. STATE ET AL.

4 Div. 991.

Supreme Court of Alabama

June 29, 1922

Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.

Bill by the State of Alabama and County of Coffee against Ed Wise to establish and enforce a tax lien. From a decree overruling demurrers respondent appeals. Affirmed.

J. A Carnley, of Elba, for appellant.

W. W Sanders, of Elba, for appellees.

THOMAS J.

The bill was to establish and enforce the lien of the state and county for taxes on land. The averments thereof do not show assessment of personal property, or that respondent owned personal property within the county, and he is not a citizen of Coffee county, where the land is situated. The original tax records containing this assessment were lost or stolen from the courthouse. It is averred that the exhibit is a substantial copy of such original assessment of respondent's land for taxes, and that said taxes are due and unpaid for the year beginning October 1, 1920. The bill concludes with interrogatories to respondent with respect to the exact nature and purport of the assessment of his lands in that county; and contained appropriate prayer for substitution, the establishment of existence of the lien for state and county taxes on the land embraced in the tax list exhibited and that described in the bill, for a sale of the same for the payment of accrued taxes for the tax year 1920-21, and a prayer for general relief. Grounds of demurrer challenge the bill generally and on grounds that a court of equity is without jurisdiction to substitute the tax records in question or to sell the land for taxes; that the state and county have no authority to maintain such a suit.

Under chapter 132 of the Code of 1907, p. 1331 et seq., dealing with "Records, Judicial," provision is made for substitution if, after the determination of any civil cause or proceeding, the original papers or any part thereof pertaining thereto, which are not of record, are lost or destroyed; or if the record of such papers, with such papers should be lost or destroyed; or if the record of any judgment or decree, or of any judicial proceeding, or quasi judicial proceeding, or any part thereof should be lost or destroyed any party in interest may, on application in writing, stating the facts, accompanied with the substitution proposed of such lost or destroyed paper or record, verified as required, "obtain an order of substitution" on notice; and it is provided that on the hearing the court may receive affidavits and counter affidavits as to the correctness of the proposed substitute (section 5741); and if there is judgment of substitution appeal is provided therefrom. (Section 5744; Worrell v. State, 15 Ala. App. 126,

72 So. 601). These statutory proceedings were applicable to the subjects there dealt with, and the provisions of section 5741 were not intended to apply to substitution of lost tax assessments such as that exhibited.

The records in question are a part of the basis of, or jurisdictional fact on which must rest, the state's right to collect the taxes on property, and such a record is oft-times the foundation of title to property purchased by strangers at tax sales. Clark v. Eagerton (Ala. Sup.) 93 So. 455. After ' the due assessment of taxes, and after the time provided for a review thereof, and after the expiration of the tax year, the county officials having to do with assessments and revisions thereof have no authority to reassses properties not to be classed as escapes. State v. Doster-Northington Co., 196 Ala. 447, 71 So. 427. The power of commissioners' courts to supply and establish lost county records was maintained in Clark v. Eagerton, supra.

In the instant case the original jurisdiction of equity to substitute or establish the existence of a lost or destroyed tax assessment is asserted in the effort to ascertain the amount of the tax lien and its enforcement in equity. The establishment of the existence of the valid assessment and the discovery of its extent and nature by resort to a court of equity for such purpose have the practical effect of furnishing the conclusive evidence of former existence of such jurisdictional fact and to dispense with the necessity of thereafter resorting to secondary evidence in its proof, as by purchaser at such tax sale. May v. Parham, 68 Ala. 253; Peddy v. Street, 87 Ala. 299; 6 So. 3; Ward v. State, 78 Ala. 455; Whitney v. Jasper Land Co., 119 Ala. 497, 500, 24 So. 259.

The inherent power in a court of general jurisdiction to restore and establish its lost or destroyed records exists, under the common law, independently of statute. Pruit v. Pruit, 43 Ala. 73; Smith v. Ivey, 48 Ala. 48; Adkinson v. Keel, 25 Ala. 551; McLendon v. Jones, 8 Ala. 298, 42 Am. Dec. 640; Wilkerson v. Branham, 5 Ala. 608; Williams v. Powell, 9 Port. 493; Dozier v. Joyce, 8 Port, 303; Ala., etc., Co v. Ventress, 149 Ala. 658, 42 So. 1017; Lilly v. Larkin, 66 Ala. 110, 114; Dabney v. Mitchell, 54 Ala. 198; Taylor v. McElrath, 35 Ala. 330; Doswell v. Stewart, 11 Ala. 629. So of the records of a court to which such a court succeeds. Taylor v. McElrath, supra; Bishop v. Hampton, 19 Ala 792. This right of restoration extends to the whole or part of a record. Where a part of a record is substituted, it must be consistent with the part remaining, and as substituted must not alter or vary its legal effect. Bishop v. Hampton, supra. The power of substitution exists either before or after judgment. Taylor v. McElrath, supra; Doswell v. Stewart, supra; Wilkerson v. Branham, supra; William v. Powell, supra.

Under his treatment of concurrent jurisdiction of equity, Mr. Story said:

"The jurisdiction of the court arising from accident, in the general sense, *** is a very old head in equity, and probably coeval with its existence. *** The jurisdiction, being concurrent, will be maintained only: First, when a court of law cannot grant suitable relief; and, secondly, when the party has a conscientious title to relief. Both grounds must concur in the given case; for otherwise a court of equity *** is bound to withhold its aid."

And the author quotes the observation of Mr. Justice Blackstone that-

"Many accidents are supplied in a court law; as loss of deeds ***. And many cannot be redressed even in a court of equity. ***" 3 Black. Comm. 431. Story Eq. Jury. (13th Ed.), p. 88, § 79; Id. (14th Ed.), §§ 119, 120.

What is embraced in the word "accident" as a ground for equitable jurisdiction and power of intervention is stated by Mr. Story (14th Ed., §§ 119, 125) to mean:

"Not merely inevitable casualty, or the act of Providence, but what is technically called vis major, or irresistible force; but such unforeseen events, misfortunes, losses, acts, or omissions as are not the result of any negligence or misconduct in the party."

Using the loss of a deed, for example, that author says it must be established that there is no remedy at all at law or no remedy that is adequately adapted to the circumstances of the case before a court of equity will afford a remedy; and, the author says, the bill must always lay some ground besides the mere loss of a title deed, or other sealed instrument, to justify a prayer for relief-

"as that the loss obstructs the right of the plaintiff at law, or leaves him exposed to undue perils in the future assertion of such right."

The text from Story is made the subject of discussion in Keen v. Jordan, 13 Fla. 327, where it is declared that the authority is in the chancery court to establish a record when the original has been lost or destroyed; that the authority, though inherent in it as a court of general jurisdiction, may not be exercised to do what another court may do for itself, for the reason that it seems "antagonistic to the power of any other court to interfere and make records for them," and, maintaining the inherent power of a court of chancery to establish and substitute a lost record, yet that right was denied to establish a record for the circuit court.

Announcing that it has been held "that there is no jurisdiction in equity to supply or establish the records of a court of law which have been lost or accidentally destroyed," Mr. Pomeroy (2 Pom. Eq. Jur. [3d Ed.] § 827) concludes with the recognition of this inherent jurisdiction of the chancery court by saying:

"It seems *** that a court of equity may, be a suit between the persons interested, confirm the title of a party, vest it in him by decree, and grant him all needed relief, when the records of a court ordering a judicial sale upon which that title depends have been lost," on authority of our case of Garrett v. Lynch, 45 Ala. 204, 214.

The Chief Justice there said:

"If the records and decree cannot be substituted under the statute, as we think they may, on the evidence disclosed in this case, so as to enable the purchaser to obtain a title in the probate court, on a proper application, a court of chancery, on the payment of the purchase money, or an offer and readiness to pay it, would, undoubtedly, either decree him a title, or direct the administrator to make him one."

Mr Pomeroy gives illustration of instances of the exercise of the jurisdiction to establish, supply, or substitute a record or paper in a proper case of the "long-settled group" of suits brought to recover the amount due on lost bonds and other sealed instruments-suits on negotiable bills, notes, or checks, whether payable to bearer, indorsed in blank or not, lost before maturity. In his general discussion of equitable jurisdiction he states that-

"Accident" is "one of the oldest heads of equity jurisdiction"; that its existence involves two essential requisites-"that by the event, not expected nor foreseen, one party, A., has without fault and

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