Ex Parte Griffith , 209 Ala. 158 ( 1920 )

On the original hearing of this case by the Court of Appeals (Helm v. Griffith, 17 Ala. App. 122, 82 So. 570), it was held that the decree of the chancery court ordering a sale of the lot in question for delinquent taxes assessed against it for 1909 by the city of Birmingham was a valid decree, and showed the existence of a valid lien which was an outstanding incumbrance upon the lot at the time of its purchase by the plaintiff from the defendant. It resulted that the register's sale made pursuant to that decree was in all respects valid, and the amount recoverable by plaintiff for the breach of defendant's covenant against incumbrances was measured by the minimum amount which plaintiff was required to pay the holder of the tax title in order to procure its release, not exceeding the amount of his own purchase money with interest. Clark v. Zeigler, 79 Ala. 346,351.

On appeal by certiorari to this court, we mistakenly treated the affidavit of the city treasurer and tax collector for publication against an owner unknown, as the certified delinquent list required to be filed by the city clerk, and, on that erroneous assumption, we held that the record showed an absence of jurisdiction in the chancery court to make a valid sale. Our present examination of the record informs us that the certified delinquent tax list referred to in the decree was not introduced in evidence, and there was nothing to show that such a list was not filed with the register, in all respects as required by the statute (Code, § 1319), and before the court in the tax proceeding, as recited by the chancery decree, unless it be the order of publication, hereafter referred to.

The recitals of the chancery decree, which are set out in the first report of the case (17 Ala. App. 122, 82 So. 570), show the existence of every jurisdictional requirement as specified by sections 1319, 1320, of the Code; and the question now presented is whether the Court of Appeals properly treated those recitals as sufficient evidence, prima facie, of the jurisdictional facts recited; the fact of the filing of a certified tax delinquent list not appearing in this record other than by virtue of the recital thereof in the decree.

Let it be understood at the outset that we have clearly in mind the settled rule of law which demands that the judgment of a court of special, or limited, or inferior, jurisdiction must show upon the face of the record of the proceeding every fact necessary to the exercise of its jurisdiction in the premises. Many cases affirming and applying that rule are cited in the dissenting opinion of Mr. Justice THOMAS, and we shall not discuss them here. That is a rule of substantive law, however, and is wholly apart from the question in hand — a question of evidence pure and simple.

We have investigated the decisions of this court with the most painstaking care, and we do not find a single instance in which it has ever been denied that the recitals of jurisdictional facts in the decree of a court of record of special or inferior jurisdiction are sufficient to show jurisdiction, at least prima facie, when offered as evidence in a collateral proceeding. The only question in such cases — as to which there is perhaps some confusion — has been whether such recitals are of conclusive, or of only prima facie, effect.

On this subject the following statement under the title "Jurisdiction," in 17 Am. Eng. Ency. Law (2d Ed.) pp. 1084, 1085, is well supported by the numerous authorities cited, and offers a sufficiently accurate rule for differentiation:

"(a) Where the jurisdiction depends on some collateral fact which can be decided without going into the case on its merits, then the jurisdiction may be questioned collaterally and disproved, even though the jurisdictional fact be averred of record, and was actually found on evidence by the court rendering the judgment. (b) But on the other hand, where the question of jurisdiction is involved in the question which is the gist of the suit, so that it cannot be decided without going into the merits of the case, then the judgment is collaterally conclusive, because the question of jurisdiction cannot be retried without partly, at least, retrying the case on its merits, which is not permissible in a collateral proceeding unless other parts of the record show affirmatively that the finding cannot be true."

As illustrative of the first branch of the rule, the following cases are in point: Com. Court v. Bowie, 34 Ala. 461; Driggers v. Cassady, 71 Ala. 529; McGee v. Fleming, 82 Ala. 276,3 So. 1; Riddle v. Messer, 84 Ala. 236, 242, 4 So. 185; Cox v. Johnson, 80 Ala. 22, 24; Gilliland v. Armstrong,196 Ala. 513, 515, 71 So. 700; Mayfield v. Com. Ct.,148 Ala. 548, 553, 41 So. 932.

As illustrative of the second branch of the rule, the following cases are in point: Hamner v. Mason, 24 Ala. 480,483; Gunn v. Howell, 27 Ala. 663, 676, 62 Am. Dec. 785; Wyatt's Adm'r v. Rambo, 29 Ala. 510, 68 Am. Dec. 89; Wilson v. Wilson,36 Ala. 655, 663; Pettus v. McClannahan, 52 Ala. 55; Bland v. Bowie, 53 Ala. 152; Massey v. Smith, 73 Ala. 174; Goodwin v. Sims, 86 Ala. 102, 5 So. 587, 11 Am. St. Rep. 21; Bishop's Heirs v. Hampton, 15 Ala. 761, 769.

In several other cases there seems to have been either express or implied recognition of the evidential value of recitals of jurisdictional facts: Commissioners, etc., v. Thompson, 15 Ala. 134, 140; Molett v. Keenan, 22 Ala. 484, 488; Com. Court v. Bowie, 34 Ala. 463; State v. Ely, Judge, 43 Ala. 568,575.

The general line of distinction seems to be that, where the fact recited by the decree is necessary to the court's jurisdiction of the thing or of the person — usually a matter of record, dehors the decree itself — without which the court cannot proceed to a hearing, the recital in the decree is only prima facie evidence of fact thus recited, and its verity may be impeached by evidence dehors the record; but, where jurisdiction has fully attached by the mere filing of a proper petition, as in proceedings in rem, or where the nature of the proceeding requires the court to ascertain a preliminary fact essential to its valid action, the recital of a finding of the necessary fact, if uncontradicted by a primary record in the proceeding, is conclusive on collateral attack.

The theory of the dissenting opinion seems to be that the rule which demands that jurisdiction shall affirmatively appear from the record requires that the decree, whatever its recitals, must be affirmatively supported, when offered in evidence, by introducing in evidence also the primary documents upon which its recitals are founded. This theory is clearly opposed to the numerous decisions above cited. The decree is itself a part of the record, and its recitals are at least prima facie evidence of the primary facts recited. 17 Cyc. 578, and cases cited.

Apart from the authorities, which clearly support this view, it is difficult in reason to discover any valid ojection to the rule, which is one of evidence only, and which in effect merely affirms that the solemn and deliberate findings and recitals of a court of record are to be taken as true, unless impeached by a showing that they are false.

It is also conceived that a decree of sale for taxes is in this respect different from all other decrees. But in Driggers v. Cassady, 71 Ala. 529, it was expressly declared that the general principles which support the validity of decrees of inferior courts on collateral attack are applicable also to tax decrees; and it was specifically held that a recital of statutory notice in the decree was sufficient, without more, on collateral attack, to show jurisdiction of the person. This case is disposed of in the dissenting opinion as limiting this use of recitals to showing jurisdiction of the person only, and with the observation that it was there required that jurisdiction of the subject-matter should be shown by the primary documents of record, dehors the decree. This assumption is entirely erroneous. It merely happened that the proof was thus made, and there is nothing in the opinion to suggest that a decretal recital of jurisdiction of the subject-matter would be less efficient than a similar recital of jurisdiction of the person. The one jurisdiction was as essential as the other, and the requirement is equally that each must be shown by the record.

The case of Gilliland v. Armstrong, 196 Ala. 513, 71 So. 700, quoted from in the dissenting opinion, so far from supporting it, is clearly an authority against it. Speaking there of the effect of a recital of notice in a tax sale decree, Justice Sayre said:

"Our opinion is that in the circumstances of the present case it was not evidence of notice according to law, though doubtless it would have been had the decree been rendered in the lifetime of Georgia Armstrong, against whom it purported to be rendered."

In Lodge v. Wilkerson, 174 Ala. 133, 56 So. 994, it was expressly noted that the decree of sale contained no recital of the necessary jurisdictional fact of the collector's preliminary report.

It has been several times declared by this court that mere recitals in decrees of courts of limited powers cannot give jurisdiction. Doe v. Riley, 28 Ala. 164, 181, 65 Am. Dec. 334; Pollard v. Mortgage Co., 103 Ala. 289, 295, 16 So. 801; McLendon v. A. F. L. M. Co., 119 Ala. 518, 520, 24 So. 721.

That proposition is of course self-evident, but it in no sense denies the prima facie effect of uncontradicted recitals as evidence of the validity of the judgment or decree. An examination of the first two of the cases just above cited will show that the court was dealing with recitals as affirmatively supported or contradicted by the other parts of the record, and not as independent evidence. In the last-cited case the question was simply whether a magistrate's certificate of acknowledgment could be impeached collaterally by showing that the grantor in the deed was not in fact before the officer. Of course, such a certificate in due form is a quasi judgment, and its recitals are always accepted as prima facie true. Martin v. Evans, 163 Ala. 657, 50 So. 997; Grider v. Am., etc., Mort. Co., 99 Ala. 281, 12 So. 775, 42 Am. St. Rep. 58.

But it is further insisted that this tax proceeding is void ab initio because it does not appear that the tax was ever assessed against the lot in question by the town of Woodlawn — this upon the theory that Woodlawn was a separate municipality until its merger into the city of Birmingham on January 1, 1910, and the assessment could have been made only by Woodlawn for a tax accruing for 1909.

It is true that there is no specific recital in the record of the tax proceeding that the tax was assessed by Woodlawn, nor, for the matter of that, by the city of Birmingham. But, under section 1143 of the Code of 1907, all property rights and interests of every kind belonging to Woodlawn were by the merger vested in Birmingham; and, under section 1147, all rights of action existing in favor of Woodlawn were made rights of action existing in favor of Birmingham, and "it may bring suit the same as if such right of action originally existed in favor of" Birmingham.

Under these provisions, we think it is clear that the previous relation of Woodlawn, as a separate municipality, to this property, and its assessment for taxation, may and must be disregarded, since on and after January 1, 1910, Birmingham was substituted for Woodlawn, and was Woodlawn to all intents and purposes, so far as this proceeding was concerned.

In order to give jurisdiction of this proceeding to the circuit court of Jefferson county, sitting in equity, it was only necessary for the city clerk of Birmingham to file with the register a certified list of the city property upon which taxes were delinquent, within three months after January 1, 1910, "with the name of the owner, if known, and the amount of taxes due on such property," as provided by section 1319 of the Code. It was not required that this certificate should make any specific reference to assessments; and though a valid assessment was essential to the validity of the tax, the statute obviously treated a certificate of delinquency as a prima facie showing of a previous valid assessment. It was the fact of the statutory certificate that gave to the court jurisdiction of the subject-matter, and not the truth of its recitals. Pollard v. A. F. L. M. Co., 103 Ala. 289, 296,16 So. 801; Craft v. Simon, 118 Ala. 625, 24 So. 380. If there was in fact no valid assessment, this was a matter of defense. If no defense was made within the time prescribed, a final decree of sale was authorized "without further proof" (section 1322); and, even in case of defense made, "the certificate * * * filed" was "prima facie evidence of the facts contained therein" (section 1322). If the court was required to accept as prima facie true the facts recited in the certificate, viz. that the taxes were due and delinquent, it was bound to presume the necessary prerequisite of a valid assessment, necessarily included in the assertion of delinquency.

Upon the foregoing considerations we would be impelled to the conclusion that the rulings of the Court of Appeals on the original hearing (17 Ala. App. 182, 82 So. 570) were correct, but for the fact, which is shown by the records of the original tax proceeding in the chancery court, that the publication of notice to the unknown owner was of a proceeding by the city to have the property in question sold for the payment of a street improvement assessment thereon, and not, as the decree and other records recite, for the payment of the ordinary taxes due for the year 1909.

It therefore affirmatively appears, contrary to the recitals of the decree, that notice of the real proceeding was not given, and the decree of sale was invalid and incapable of passing title to the purchaser.

So, also, the prima facie effect of the register's order and its recitals is to show that the delinquent list filed by the city, and the essential basis for the chancery proceeding, was for an assessment and delinquency other than that decreed upon, and as to which the court was without jurisdiction.

It may be that upon another trial in the court below the conflict between the recitals of the chancery decree and the records pertinent thereto may be removed. In any event, the trial court will proceed upon the principles above set forth.

It results that our original judgment granting the writ on the present petition will be set aside, the application for rehearing will be granted, and the writ of certiorari will be now denied.

ANDERSON, C. J., and SAYRE, GARDNER, and BROWN, JJ., concur.

McCLELLAN and THOMAS, JJ., concur in the conclusion only, and they dissent from the view that the recitals of the decree, though not contradicted by the primary records, are prima facie evidence of jurisdictional facts.