93 So. 853 | Ala. | 1922
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,
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,
In the cases of Birmingham v. Wills,
The complainant also avers that —
There has been prepared and is in existence "what purports to be a certified or otherwise verified transcript of the proceedings alleged therein to have been had by the mayor and council and other officials of the town of Elba, Ala., which in a trial in a court of law would be prima facie evidence that the things had been done and the proceedings had been had in a regular and lawful way, which would give to the town of Elba a lien on the property of orator for the cost of such improvements, and based upon which a deed executed pursuant to a sale of orator's property for such cost of such improvements would prima facie entitle the grantee in such deed to recover your orator's property."
We know of no statute, and are cited to none, which makes such a certificate or transcript prima facie evidence of the recitals therein, whether true or not, that would relieve a purchaser at the sale of complainant's property from having to establish the validity of the tax proceedings under which he claimed in an action at law for the property. Harton v. Enslen,
It is unnecessary for us to decide whether or not the defects relied upon and disclosed by the assessment record are merely irregular, and were waived and cured by a failure of the owner to protest under section 1381 of the Code, or whether or not they rendered the assessment void, in passing upon the *152 equity of this bill. If of the former class, the complainant was not entitled to equitable relief under the Wills and Abernathy Cases, supra. If it was void upon its face, the complainant had a good legal defense and cannot maintain the present bill.
The trial court wrote a clear and concise opinion in this case indicating the views as to the law as expressed in this opinion, but felt constrained to uphold the equity of the bill under the influence of the Coffman Case, supra. Since, however, the said case is overruled, the decree of the circuit court in overruling the demurrer to the bill for want of equity is reversed and one is here rendered sustaining same.
Reversed and rendered.
All the Justices concur.