199 So. 838 | Ala. | 1941
The bill as amended seeks to have removed as a cloud on title improvement assessment entered against the described property of complainant by the City of Bessemer under Ordinance No. 613 adopted in August, 1927, with final assessment of July 17, 1928.
The bill invokes the original jurisdiction of a court of equity to remove a cloud on title, complainant's possession of the property being alleged and no other remedy available. Alabama City, et al. v. Alabama Power Co.,
The bill discloses complainant's actual possession of the property when the ordinance was passed and the assessment made final and continuously since that time. The invalidity of the improvement ordinance was rested upon the averment that of its passage and the order of final assessment complainant had no notice or knowledge whatever, and that the publication of Ordinance No. 613 gave him no notice that his property was in any manner affected thereby as his property did not abut on Dartmouth Avenue, the ordinance upon its face purporting only to provide certain improvements on Dartmouth Avenue in the City of Bessemer.
Among other improvements contemplated by the ordinance was one of drainage and such was the assessment against complainant's property. No notice was given him by registered mail or otherwise and upon the face of the bill it would appear the newspaper publication of the ordinance concerning Dartmouth Avenue was insufficient with which to charge notice to him. True, it has been held that a failure to send a copy of the ordinance by registered mail will not invalidate the proceedings. First Nat. Bank v. Fountain Motor Co.,
Defendant insists the bill upon its face discloses complainant has been guilty of laches, citing Fowler v. Alabama Iron Steel Co.,
Complainant has all along been in peaceable possession of his property with *408
no adverse step being taken by the city and no effort to enforce any lien thereon. He had been under no duty or necessity of asserting any right or title to property owned and possessed by him with such ownership and possession remaining unchallenged. Under these circumstances, the mere lapse of time here disclosed does not suffice to bar complainant of the relief he seeks upon any doctrine of laches. Behan, et al. v. Friedman, et al.,
Counsel for defendant insist also that complainant should be denied relief upon the theory of estoppel and authorities from other jurisdictions are called to our attention, most of which are to be found in the very exhaustive note to City of Bartlesville, et al. v. Holm, et al., 9 A.L.R. 627 — all based upon the principle that if one is silent when he should speak, equity will debar him from speaking when conscience requires him to be silent. Ex parte City of Bessemer (City of Bessemer v. Goodwyn), ante, p. 52,
As noted in City of Birmingham v. Wills, supra, our own case of City of Woodlawn v. Durham,
The act of final assessment was judicial in character and as observed by the New Jersey court in Groel v. Newark,
But we forego further discussion of that question, as it is plain enough from a consideration of this bill complainant is unaffected either by any doctrine of laches or estoppel. As previously observed, complainant has invoked the equity jurisdiction to remove a cloud on his title, and the bill is in no sense one to quiet title under our statute. City of Birmingham v. Wills, supra. Argument upon an assumption to the contrary is without merit.
We conclude the bill as amended was not subject to the demurrer and that the trial court correctly so decreed.
It results that the decree will accordingly be here affirmed.
Affirmed.
BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.