158 So. 751 | Ala. | 1935
This is a suit by the city of Birmingham for lands purchased at its sale to enforce a lien for assessments for public improvements against abutting lands specifically described.
There was an agreed statement of facts incorporated in the bill of exceptions, containing the provision to be referred to, infra; and likewise the grade and improvement ordinances, the respective resolutions thereof of the City Commission, the notices ordered and given to contractors and respective property owners of the proposed improvements, the nature and character thereof, assessment rolls and profiles embracing this property, the judgments or respective assessments made pursuant to foregoing proceedings for such public improvements, and assessment and judgment as anecting the land in question, are duly presented by the bill of exceptions.
The concrete question for decision is thus declared in the agreement of counsel: "This agreement is made by the parties to the end that the Court may rule upon the proposition of law as to whether or not an assessment, made against the owner of the equity of redemption after the filing and recording of mortgages to a third party, the third party having no notice of said assessment for public improvements, becomes a lien upon the interest of the third party prior and superior to its mortgages."
The decisions of City of Birmingham v. Emond (Ala. Sup.)
The case of Pierce v. City of Huntsville,
Thus, under the decisions, it is held that the requisites of due process were accorded as to notice, if given by publication as provided *538
for a levy, or the contemplation thereof, of a special assessment for street improvements. When that notice is given, as provided, in a reasonable manner, it is the general and public notice required, and the law presumes that it will reach the cognizance of the owner or parties in interest to be affected by such act, assessment, and lien against the specific parcel or lot of land. City of Decatur v. Brock,
The specific requirements of notice contained in the amended statute are: "That Section 2178 of the Code be amended so as to read as follows: Section 2178. Publication of Ordinance or Resolution: said ordinance or resolution must be published once a week for two consecutive weeks in some newspaper published in said city or town, and if no newspaper is published therein, it may be published either in a newspaper of general circulation in said municipality, or by posting for two weeks in three public places, in such city or town. A copy of said ordinance or resolution shall also be sent, by registered mail, postage prepaid, to the persons last assessing for city or town taxation, the property which may be assessed for said improvements, at their last known addresses, said notices to be so mailed not less than ten days before the meeting of the city council or other governing body provided for in the next succeeding section. The failure of any official charged with the duty of sending such notice, or the failure of any owner of property to receive such notice, if sent by Registered mail as hereinabove provided, shall not invalidate or in any wise affect any assessment made under the provisions of this Code." Gen. Acts 1927, p. 759, § 7.
There is no provision here for lienholder's notice.
It is insisted by appellant that the provisions of section 2220 of the Code, as amended by Gen. Acts 1927, pp. 753, 771, § 49, limit the right, title, and interest of the party against whose property the assessment was made and which may be sold; and that they did not extend to the rights of a mortgagee or other lienholder. This statute will be construed in pari materia with the whole system of which it is a material part, and with sections 7, 49, 50, and 51 of the statute as amended and to be considered. Gen. Acts 1927, p. 753 et seq. And when so considered, it will be taken with the common knowledge that mortgages exist and extend to many urban lots or parcels of real property.
If it be held in this case, as insisted, that only the right, title, and interest of the party against whom the assessment was made is to be affected (and not the interest or lien of a mortgagee), such a holding would prevent the municipality from proceeding with the assessment of mortgaged property for public improvements, without notice to or the presence of a mortgagee or lienholder as a general owner. This insistence is contrary to the holding or analogy contained in City of Birmingham v. Emond (Ala. Sup.)
In all the decisions of the character before us are the declarations that such procedure to assessment is against the property, and not personal in liability for the lien to be declared and enforced by the judgment rendered. Hamrick v. Town of Albertville,
When the context of the amended statute providing for conveyance to the purchaser, "all the right, title, and interest Which the party against whose property the assessment was made, had or held in said property at the date of making such assessment, or on the date of making such sale" (Gen. Acts 1927, P. 771, § 49), is considered, as it will be, with the statute for redemption by the owner, his assigns, or otherperson authorized to redeem property sold for taxes by the state (page 771, § 50), the further provisions contained in section 51 (page 771), "No mistake in said publication in the description of the property, or in the name of the owner, shall vitiate the assessment or the lien, and if, for any reason, the sale made by the City or town be ineffectual to pass title, it shall operate as an assignment of the lien, and upon the request of the purchaser, supplementary proceedings of the same general character as herein required may be had to correct the errors in said proceedings for his benefit, or the lien so assigned to him may be enforced in equity," and the provisions for notice in section 7 (page 759, Gen. Acts 1927), it is evident *539 that the legislative intent was that mortgagees and other lienholders of mere liens were notified by the statutory proceeding taken in the enforcement of the city's lien and of its foreclosure by sale, its purchase and conveyance as provided by statute.
The judgment of the circuit court is in accord with the views we here express and is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.