Opinion
6 Div. 347.
May 11, 1933.
Appeal from Circuit Court, Jefferson County, Bessemer Division; Gardner Goodwyn, Judge.
George W. Bains, of Bessemer, for appellant.
Statutory limitations restrict the time of filing a bill for injunction or seeking other remedies in a court of equity to one year after discovery of the alleged fraud. Code 1923, § 8966. A failure to aver the exact time on which notice was had that an assessment was made against the property will not give the appellee the right to appeal, for otherwise it appears on its face that he is guilty of laches. 44 C. J. 759.
Arthur Green, of Bessemer, for appellee.
In improvement assessment proceedings by a municipality, notice in substantial conformity to law is regarded as jurisdictional. If the data referred to as a basis of notice does not exist, there is a failure of statutory notice, and the assessment is void for want of jurisdiction. Jasper Land Co. v. Jasper, 220 Ala. 639, 127 So. 210; Day v. Montgomery, 209 Ala. 609, 96 So. 894; Id., 207 Ala. 644, 93 So. 609; Goodman v. Birmingham, 223 Ala. 199, 135 So. 336; Lyon v. Alley, 130 U.S. 177, 9 S.Ct. 480, 32 L.Ed. 899; 44 C. J. 706. Where an assessment is absolutely void, mere delay in instituting proceedings to set it aside or enjoin its enforcement does not of itself amount to laches; no duty is imposed upon the property owner to act promptly. No laches can be imputed to one for delay in bringing suit until after time for appeal has expired, where he was not served with notice of proceedings until after the time for appeal had expired. 44 C. J. 759; Hooper v. Peters M. L. Co., 210 Ala. 346, 98 So. 6; Laird v. Columbia L. I. Co., 204 Ala. 246, 85 So. 521; Batty v. Hastings, 63 Neb. 26, 88 N.W. 139. Where the real purpose of the bill is to remove a cloud on complainant's title, and complainant is in peaceable possession of and owns the land in controversy, complainant is entitled to wait until his right and title are attacked without being chargeable with laches or affected by the statute of limitations. Hooper v. Peters M. L. Co., supra; Laird v. Columbia L. I. Co., supra; Ogletree v. Rainer, 152 Ala. 467, 44 So. 565. This proceeding is to cancel the lien as a cloud on the title, because of a void lien, and is not based upon the question of fraud. Section 8966 of the Code does not apply.
This case has been here on former appeal, 145 So. 424. It was there held that the bill was defective for failing to aver the peaceable possession of the complainant. After the cause was reversed, the bill was amended to cure the defect as pointed out, and the trial court then overruled the appellant's demurrer to the bill as last amended.
Ante, p. 28.
The only insistence or argument by appellant's counsel upon the present appeal is that the demurrer should have been sustained because of the statute of limitations or laches. We are not unmindful of the rule that, when a bill in equity, upon its face, shows that the relief sought is barred by the statute of limitations or laches, it is subject to an appropriate demurrer, but we do not think that the bill is defective in this respect. It shows that, within a few months after he received notice that his right or possession would be interfered with by an attempt to subject his land to the enforcement of the appellant's claimed lien, the bill was filed. Being in the peaceable possession and enjoyment of his property, it was not incumbent upon the complainant to take action until he acquired notice that his rights were threatened. Hooper et al. v. Peters Mineral Land Co., 210 Ala. 346, 98 So. 6, and cases there cited.
Appellant's counsel cite and seem to place reliance upon section 8966 of the Code of 1923, which requires action within a year after the discovery of fraud. As we understand, the present bill is not one seeking relief against fraud, but against proceedings to subject his property to a lien which was void for want of jurisdiction under the cases of Jasper Land Co. v. City of Jasper, 220 Ala. 639, 127 So. 210; Goodman et al. v. City of Birmingham, 223 Ala. 199, 135 So. 336; Nashville, C. St. L. Ry. Co. v. Town of Boaz, ante, p. 441, 147 So. 195.
The decree of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.