Opinion
8 Div. 601.
February 28, 1935. Rehearing Denied April 4, 1935.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
Wm. L. Chenault, of Russellville, for appellant.
The bill as last amended was a statutory bill to quiet title. Other allegations therein will, on demurrer, be treated as surplusage and the demurrer be overruled. Code 1923, §§ 9505, 9506; Cooper v. W. P. Brown Sons L. Co., 214 Ala. 400, 108 So. 20; Jordan v. McClure L. Co., 170 Ala. 289, 54 So. 415; Loeb v. Wolff, 116 Ala. 273, 22 So. 513; Adler v. Sullivan, 115 Ala. 582, 22 So. 87; Stacey v. Jones, 180 Ala. 231, 60 So. 823; Joiner v. Glover, 201 Ala. 279, 78 So. 55. Such a bill may be so amended as to obtain relief from a void mortgage, the basis of respondent's claim. State Land Co. v. Mitchell, 162 Ala. 469, 50 So. 117. Equity will remove a cloud on title arising from void assessments where invalidity does not appear on the face of the proceedings. Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14; Jones v. Lacey, 220 Ala. 390, 125 So. 635; May v. Granger, 224 Ala. 208, 139 So. 569; Jasper Land Co. v. Jasper, 220 Ala. 639, 127 So. 210; City of Jasper v. Sanders, 226 Ala. 84, 145 So. 827; City of Bessemer v. Schanz, 226 Ala. 573, 148 So. 131. One who claims an interest in lands through tax proceedings has the burden of showing that requirements of law with respect thereto were complied with, and so as to street assessments. Drennen v. White, 191 Ala. 274, 68 So. 41. The board in making the assessment had no evidence before it showing enhanced value of the property by reason of the improvement. The assessment is void, and in equity the owner is entitled to have same canceled as a cloud on title. City of Jasper v. Sanders, 226 Ala. 84, 145 So. 827.
J. Foy Guin, of Russellville, and Marvin Woodall, of Birmingham, for appellees.
A technical irregularity in an assessment proceeding cannot be raised on collateral attack, and, unless jurisdictional grounds are raised, a bill to remove cloud is a collateral attack. Florence Gin Co. v. Florence, 226 Ala. 478, 147 So. 417; Jasper L. Co. v. Jasper, 220 Ala. 639, 127 So. 210; Grant v. Birmingham, 210 Ala. 239, 97 So. 731; Peoples v. State Sec. Bank, 218 Ala. 534, 119 So. 226; Brock v. Decatur, 185 Ala. 146, 64 So. 73; Utley v. St. Petersburg, 292 U.S. 106, 54 S.Ct. 593, 78 L.Ed. 1155; Code, 1923, §§ 2196, 2204; Acts 1927, p. 534; Browder v. Gunter, 220 Ala. 407, 125 So. 646; Town of Brewton v. Spira, 106 Ala. 229, 17 So. 606. By failure of Carter to appear and protest or object, the assessment against him became a consent judgment. Authorities, supra. To impeach the judgment, complainant must show that he has been diligent, that he has been injured, and must offer some excuse for failure to take advantage of the remedies available to him before the city council. Florence Gin Co. v. Florence, supra. Appellant is Carter's successor in title, is in privity with him, stands in his shoes, and is bound by his errors of omission and commission. Montgomery v. Florence, 226 Ala. 340, 146 So. 882. Equity will not enjoin the assessment for failure of the council to take evidence of enhancement in value. 34 C. J. 452. The bill is one to remove a cloud, and subject to the demurrer. Douglass v. Standard R. E. L. Co., 189 Ala. 223, 66 So. 614; Long v. Mechem, 142 Ala. 405, 38 So. 262; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746; Grant v. Birmingham, supra; Florence Gin Co. v. Florence, supra. The bill was properly dismissed. Alabama L. S. Co. v. Adams, 222 Ala. 538, 133 So. 580; Crowson v. Cody, 209 Ala. 674, 96 So. 875.
The appeal is from the decree of May 8, 1934, sustaining demurrer to the bill as last amended. The demurrer was properly sustained.
Complainant derives its title from one Carter, original owner of the real estate, and occupies Carter's position, so far as concerns the present litigation. Montgomery v. City of Florence, 226 Ala. 340, 146 So. 882.
The original bill was one to remove a cloud on title, and sought to have the street improvement assessment lien declared void and canceled. The regularity on the face of the assessment proceedings is admitted, but attacked as invalid largely upon the theory that no evidence was offered before the board of mayor and aldermen showing that the paving improvements increased the value of the property, the board being content with the engineer's report. But this was a matter of irregularity of procedure only, not affecting the question of jurisdiction, and subject to correction upon objection duly interposed. The case of Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417, fully sustains this view.
It is not questioned in the bill that Carter, the owner, did not have the notices as provided by law, nor, indeed, that he did not have actual knowledge of all the facts. Our authorities are clear to the point that a bill in equity does not lie for matters which could, with due diligence, have been presented and adjudicated in the original proceedings (Wynn v. First Nat. Bank of Dothan [Ala. Sup.] 159 So. 58, 59 ), and the averments of the bill present a case for the application of the statutory estoppel to be found in section 2196, Code 1923, as amended by Laws 1927, p. 765, § 25. Grant v. City of Birmingham, 210 Ala. 239, 97 So. 731; Jasper Land Co. v. City of Jasper, 220 Ala. 639, 127 So. 210; City of Jasper v. Sanders, 226 Ala. 84, 145 So. 827.
The bill was twice amended, and there were added averments essential for a statutory bill to quiet title (Code 1923, § 9905 et seq.). Complainant insists, therefore, the bill is sufficient as one of this latter character, and the demurrer improperly sustained, citing Cooper v. W. P. Brown Sons Lumber Co., 214 Ala. 400, 108 So. 20; Stacey v. Jones, 180 Ala. 231, 60 So. 823. But the bills considered in these cases were primarily statutory bills to quiet title, and other matters were held merely incidental thereto.
In the instant case the bill, as originally filed and as amended, has for its primary purpose the removal of a cloud on complainant's title by reason of an alleged invalid assessment, and seeks its cancellation. To hold that by adding averments, by way of amendment, to meet also requirements for a statutory bill to quiet title, the original bill was converted into one of this nature would, as observed in City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746, and reiterated in Grant v. City of Birmingham, supra, be a perversion of the statute for quieting title, and "merely evince a desire to shift the burden of averment and proof in respect to the validity of the assessment proceeding contrary to the spirit and letter" of our improvement assessment statute. We are of the opinion the bill is now, as originally, one to remove cloud on title and all other matters incidental thereto.
There are no averments indicating the date of the improvement assessment proceedings, and as what has been said suffices for a disposition of the cause, a consideration of the act approved September 10, 1927 (General Acts 1927, p. 534; Browder v. Gunter, 220 Ala. 407, 125 So. 646), has been pretermitted as unnecessary.
The chancellor rendered two decrees on demurrer to the bill as amended and accompanied each with an opinion. The failure of the amended bill to aver any lack of notice of the assessment proceedings to the owner was specifically noted in the first opinion rendered, and in the amendment which followed pursuant to the allowance of this decree there was no effort made to so aver. In rendering the second decree, from which this appeal is prosecuted, the chancellor noted, in his opinion, that "complainant has twice amended its bill in an effort to remedy the deficiencies pointed out by the demurrers, and * * * has not yet done so; * * * the bill is totally without equity, and cannot now be amended so as to give it equity."
The conclusion of the opinion is that "No good reason appears for unduly prolonging the litigation," and decree was then entered sustaining the demurrers and dismissing the bill.
It thus appears complainant was given ample opportunity with full notice of the essential requirements of averment, and the chancellor was therefore justified in the course pursued, and his action finds full support in Alabama Lime Stone Co. v. Adams, 222 Ala. 538, 133 So. 580, 581, where it is observed: "The court is not willing to hold that a party complainant may by repeated amendments keep his case perpetually in court."
Let the decree be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.